You can only place a caveat over real property if you have a
caveatable interest in that property. A Court judgment against a
person does not necessarily create a caveatable interest in real
property giving rise to an entitlement to lodge a caveat over it.
If you improperly lodge a caveat, the potential costs, consequences
and damages that may be awarded against you can be significant.
A person who lodges a caveat without reasonable cause may be
liable in damages to the registered proprietor of the real
property. For example, if you have lodged a caveat over real
property in circumstances where you do not have a sufficient
caveatable interest in the land to support the caveat, and this
prevents the registered proprietor of the land from settling on the
sale of the land, you may be liable to pay compensation to the
registered proprietor of the land.
Caveats are registered on the title of a property so that
parties are put on notice of the caveator's interest in that
property. When a caveat is lodged, it prevents the Registrar
General from registering any dealing (except for some statutory
exceptions and any specifically permitted dealings) in relation to
the property that is inconsistent with the interest of the party
who has lodged the caveat.
You may be able to negotiate with a judgment debtor and agree to
create a caveatable interest in real property by way of a charge
over the property for the amount of the debt outstanding to you.
You can then lodge a caveat to protect your interest created by the
charge. You will usually need the consent of the registered
proprietor to charge their property with the amount of the judgment
debt. Stamp duty is usually payable on the charge, together with
registration fees to lodge the caveat. In some cases, agreement
might be reached to create a registered mortgage over the title of
the debtor's property.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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