Australia: Defective caveats are ineffective caveats to protect real estate interests

Failure to comply may mean that the caveat will be ineffective to prevent registrations of interests inconsistent with the caveat or could be grounds for its removal.

Caveats are important devices in property disputes to protect interests in land which cannot otherwise be registered on the Title Register, but if you do not comply with the strict legislative requirements relating to caveats your caveat will be ineffective to protect your interest. This is an important reminder for persons working in the real estate industry.

We discuss the legislative requirements and then provide some comments on common mistakes made by caveators.

What is a caveat?

A caveat acts like an injunction to prevent the Registrar of Titles from registering dealings on a piece of land which are prohibited by the caveat. It can also give notice to third parties searching the Titles Register of the caveator's interest in the land (eg. notice of an unregistered mortgage to a subsequent mortgagee).

To lodge a caveat you must follow strict legislative requirements. A failure to do so can be fatal - not only is this a ground for removal of the caveat, but the caveator can also be liable to pay the costs of the parties who sought its removal, together with compensation to anyone who has suffered loss or damage if the Court considers the caveat was lodged without reasonable cause.

Moreover, in most cases, if a caveat is set aside, the Court's permission will be required to lodge a subsequent caveat to protect the same or substantially the same interest.

What are the requirements for lodging a caveat?

This article deals with the Queensland requirements, but the requirements are similar in each State and Territory. To lodge a valid caveat, the caveator must:

  • have an interest which is capable of supporting a caveat (called a caveatable interest);
  • comply with the formal requirements for caveats; and
  • apply to Court within three months of lodging the caveat to protect the caveatable interest.

The nature of a caveatable interest

The most common caveatable interest is that of a "person claiming an interest in a lot". It is limited only to interests (legal or equitable) in the land over which the caveat is lodged, and does not extend to personal interests or purely contractual interests.

Some common caveatable interests include the interests of:

  • purchasers under an unconditional sale contract;
  • option-holders with options to purchase the land in question;
  • mortgagees or chargees; and
  • holders of rights to unregistered easements or profits à prendre.

An example of a non-caveatable interest is that of a partner in land owned by the partnership (ie. the partner is not entitled to any particular part of the land but merely his or her proportionate share of the proceeds of the land).

The registered owner can also, in limited circumstances, lodge a caveat to protect their title from particular dealings or kind of dealings. A common example is to protect their title from a transfer of the land by a party acting fraudulently.

Other caveatable interests include interests in land which are the subject of Australian court orders (eg. an order to transfer an interest in land to a person or an order restraining the registered owner from dealing in their land).

Formal requirements for lodging a caveat

In Queensland, the Land Title Act 1994 (Qld) requires a caveat to specify:

  • the name of the caveator;
  • an address for service of documents on the caveator;
  • the interest claimed and the grounds for claiming that interest (as referred to above);
  • the dealing or types of dealings to be restricted by the caveat;
  • if the caveat relates to part of the land only, a description of that part; and
  • unless the Title Registrar permits otherwise, the name and address of the registered owner and anyone else having a right to deal with the land (eg. a mortgagee).

Similar requirements exist in the other States and Territories. Failure to comply may mean that the caveat will be ineffective to prevent registrations of interests inconsistent with the caveat or could be grounds for its removal. There are only limited circumstances in which a Court may rectify a defective caveat.

Applying to court to protect a caveatable interest

A caveat will usually lapse unless the caveator commences Court proceedings to protect their caveatable interest within three months of lodgement.

In Queensland, the three-month period can be shortened if a person affected by the caveat gives the caveator written notice requiring them to commence proceedings. If the caveator does not do so and notify the Registrar of Titles that they have done so within 14 days of service of the notice, the caveat will lapse. Similar notices are generally available in the other States and Territories, but the time periods vary.

However, the requirement to commence proceedings does not apply to caveats lodged by the registered owner or by caveators who have the registered owner's permission to lodge a caveat.

How do you remove a caveat?

Caveats which have not or cannot lapse can only be removed by applying to the Court for an order removing the caveat, or, in limited circumstances, by requesting the Titles Registrar to cancel the caveat.

An application to remove a caveat places the burden on the caveator to show cause why the caveat should not be removed. The same principles as those applicable to interlocutory injunctions apply - the caveat will only be maintained if:

  • the caveator's claim raises a serious question to be tried;
  • the balance of convenience requires the caveat to remain; and
  • the caveator gives an undertaking as to damages.

Checklist for lodging a caveat

The most common mistakes made by caveators which should always be checked are:

  • failing to ensure that stamp duty has been paid in respect of the underlying interest sought to be protected;
  • lodging a caveat over the whole of the land where the cavetable interest only relates to part of the land;
  • failing to be aware of the different time limits for caveats lapsing between the States and Territories;
  • identifying the wrong caveator (e.g. where there is the sale of a business and premises under separate contracts, only the buyer of the premises can lodge a caveat);
  • lodging a caveat where the caveator has contractually bound itself not to lodge a caveat (which is the case with many commercial leases);
  • where the title or interest in the land is jointly acquired and only one party lodges the caveat; and
  • failing to prepare timely and appropriate supporting affidavit material for proceedings to protect the caveat or to resist an application for removal.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions