How to Remove a Caveat from your Property

Are you looking to sell or mortgage your land but can’t because there is an unjustified caveat lodged over the title to your property?

Learn how to remove a caveat.

To remove a caveat from your property title in Western Australia, you can either:

1. have the caveator (the person who lodged the caveat) voluntarily withdraw it;
2. apply to have the caveator be given a 21-day notice of lapsing, after which time the caveat will expire if the caveator doesn’t apply to the Supreme Court for an order to extend it;
3. apply to have the caveator ne given a 14-day notice to show cause why the caveat should not be removed, after which time the caveatable interest will be expire if the caveator doesn’t withdraw the caveat or commence proceedings to substantiate their interest and notifying Landgate of the same; or
4. obtain a Court order directing removal of the caveat from the register.

The quickest method is usually a voluntary withdrawal by the caveator, but if that’s not possible, you can consider pursue a lapsing process – which may result in Supreme Court proceedings. An order directing removal can also be sought in appropriate circumstances.

Removing a caveat can be complex with serious and costly consequences if incorrectly done. You should consider legal advice about your circumstances before taking any steps.

Voluntary Withdrawal

The most straightforward removal method is if the person who lodged the caveat agrees to withdraw it. If it is an option, you may be able to negotiate with the caveator to complete and lodge a Withdrawal of Caveat form with Landgate.

Application for Lapsing (21-Day Notice)

This process is used if the caveator refuses to withdraw the caveat, and typically should be pursued after attempts to agree terms for voluntary removal fail.

It involves applying to the Registrar who will cause notice to be issued to the caveator advising that the caveat will lapse (expire) within 21 days of the deemed service date of the notice without Court order.

If the caveat lapses, you do not need to do anything further. Once lapsed, the caveatable interest is lost and the caveat cannot be relodged.

However, if the caveator obtains a court order to extend the caveat that is served on the Registrar of Titles before expiration, then the caveat will be maintain on such terms as were ordered – typically until further order of the Court.

Application to Show Cause (14-Day Notice)

This can be more complex and is typically used when either (a) a registration is pending and the caveat is considered wrongful (Section 138) or (b) when the estate or interest of the caveator has ceased to exist (Section 141A).

The process involves making application to the Registrar of Titles to issue a notice, but this time for a shorter 14-day period and requiring the caveator to apply to the Supreme Court to “show cause” why the caveat should not be removed.

If the caveat lapses, you do not need to do anything further. It lapses only to the extent necessary to permit the registration of the instrument under which the notice as sent.

However, if the caveator can show the Registrar of Titles that appropriate Court action has been taken to show cause, then the caveat will not lapse and the pending instrument will not be registered.

You can make a direct application to the Supreme Court of Western Australia to have the caveat removed.

By Court Order

Aside from voluntary or lapsing processes, a Court may also order that at caveat be removed from the register. This process involves lodging an extracted copy of the Court order with the required application form and payment with Landgate.

Conclusion

There are a variety of ways you may have a caveat removed from your property in Western Australia, including voluntarily, following a lapsing or show cause notice, or by Court order.

Each option requires careful consideration of the relevant circumstances and law to avoid potentially costly pitfalls, and you should consider seeking your legal advice before taking any steps.