When parties separate, it can be important to make sure that assets are protected before a family law property settlement is formalised. One way that matrimonial assets can be protected is through the lodgment of a caveat.

What is a caveat?

A caveat is a note that is recorded on the title of a property that protects any interest that the maker of the caveat may have on the property. This notice can be used as a way to delay a property transaction. If your ex-partner is the registered owner, a caveat can prevent them from adversely dealing with the property such as by selling, transferring, mortgaging or encumbering it until the court has determined whether there is an interest in the property.  A person who lodges a caveat is known as the ‘caveator’.

When should a caveat be lodged?

A caveat may be lodged if a party has a caveatable interest in the property. This may occur if both parties to a relationship have an interest in the property but there is only one party’s name on the title of the property.  This may have occurred, for example, if both parties contributed to paying the mortgage or have contributed to the property through other financial or non-financial means throughout the relationship. If the person making these contributions does not have their name registered on the title of the property, then it is likely that they will not gain any benefit from that property, if it were to be sold by the proprietor.

How is a caveat lodged?

A caveat is lodged by way of a caveat form, which can be completed for electronic lodgment by a solicitor or conveyancer or in hard copy, with NSW Land Registry Services. Basic requirements of the caveat include the name and address of the person lodging the caveat, the name and address of the person who owns the property and the interest claimed by the person lodging the caveat. It is important to complete the caveat correctly the first time it is lodged as you cannot lodge another caveat on the same grounds unless you get leave from the court.

What happens after a caveat has been lodged?

Once a caveat is lodged, NSW Land Registry Services will then examine the documentation and if property protocol is followed, they will record the caveat against the title of the property. They will then serve notice to both the caveator and the registered proprietor of the property. Subsequently, the registered proprietor will be entitled to serve a lapsing notice on the caveator, requiring them to commence court proceedings immediately in order to establish their interest to that property. Failing to attend to this within fourteen (14) days will result in the caveat lapsing.

How do you remove a caveat?

In order to remove a caveat legal steps must be followed. A caveat can be removed by bringing an application to the Registrar of Titles, this application must have a supporting certificate signed by a legal practitioner and must be done in writing. This application must also include a statement confirming that the caveator does not own the property and has no claim to it. If proceedings are not commenced by the caveator then the caveat will lapse after three months as a result of the application lodged with the Registrar. If the caveat has lapsed the owner of the property can then lodge a form to remove the caveat.

Get Legal Advice

When drafting a caveat, it is important all proper protocols are followed to ensure that the caveat is permitted by the relevant authority.

Our experienced family law team at Etheringtons Solicitors are ready and willing to assist you with your matter and take the stress out of your divorce or other family law matters. If you need any assistance please don’t hesitate to get in contact via this form or call us on 02 9963 9800.