Caveat

Form  08X (PDF 100 KB)

Dealing type - X

Legislation - s74F Real Property Act 1900

Stamp duty - Required 

Only where the estate or interest claimed is pursuant to an unregistered mortgage, loan agreement, or deed of charge dated on or after 1/1/1987 & before 1/7/2016, except where: 

  • the claim involves bail that includes a reference to an unregistered mortgage or charge.
  • the caveat is by State Debt Recovery pursuant to a charge.
  • the claim is a charge pursuant to s355 Water Management Act 2000.

A deed of charge is an interest that could be registered by lodging a Charge form 06C.  See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [60.100].

Certificate of Title - not required

NOS form - not required

Caveat - a caveat noted on the Register will not prevent recording.

Priority Notice noted on the Register - see Priority Notice page.

A caveat is effective from the time of lodgment.

(A) The reference to title for the land affected by the caveat must be stated.

If the caveat affects less than the whole of the land, the description of the part must be consistent with the claim set out at Note (I).

A caveat affecting:

  • part of the land, other than contained in a lease, must fully describe the part by reference to:
    • a plan that has been lodged. The plan does not have to be registered
    • a plan attached to the caveat. A plan fee is payable where the land description is reliant on the annexed plan or
    • a plan annexed to a registered dealing.
  • part of the land being premises contained in a lease must state the full postal address of the premises.
  • part of the land not being premises contained in a lease must fully describe the part as is required for a lease, see Note (A) Lease 07L.

A caveat may be lodged by any person, including the registered proprietor, who claims an estate or interest in Torrens Title land.

(B) The registered number of the lease, mortgage or charge affected by the caveat must be stated. The reference to title for the land affected by the caveat must be stated.

(D) The full name of the registered proprietor of the estate or interest affected by the caveat must be stated and be identical to the name as shown on the Register.

The ACN or ARBN of a company etc is not required.

A discrepancy in the name of the registered proprietor may be explained in the caveat, e.g. 'formerly known as ...', or by evidence furnished with the caveat. A Change of Name form 10CN is not required.

The postal address or DX address of the registered proprietor must be stated. A Post Office box number is acceptable. Addresses for buildings in major cities should refer to a suite and floor number.

Where the caveator intends to claim against less than all the registered proprietors, only those registered proprietors against whom the caveator claims should be shown at (D). In that case, the caveat will be recorded only as regards those registered proprietors.

As regards registered proprietors affected by the caveat, the claim at (I) must support the caveat being drawn against only those registered proprietors shown at (D).

(E) The full name and residential address (if an individual) or the address of the registered office (if a body corporate) of the caveator must be stated. The ACN or ARBN of a company etc must be stated.

A caveat may be lodged by any person, including the registered proprietor, who claims an estate or interest in Torrens Title land.

A caveat by the NSW Trustee and Guardian on behalf of another person will be registered in the name of the NSW Trustee and Guardian only.

(F) A name and an Australian postal address for service of notices on the caveator must be stated. A NSW DX box number may be added for parties with DX access. A Post Office box number is not acceptable. See s74F(5)(6) Real Property Act 1900.

(G) The Item number(s) that correspond with the action(s) intended to be prohibited by the caveat as set out in Schedule 2 must be stated.

A maximum of six items can be selected.

Item 5 can only be selected if the caveator is the registered proprietor of the affected estate or interest or is the NSW Trustee & Guardian where it is acting on behalf of the registered proprietor.

Items 1 and 5 are mutually exclusive as both contain the same prohibition and cannot be selected together except where the caveator is the NSW Trustee and Guardian acting on behalf of the registered proprietor.

Item 6 only applies where the period specified in any notice of extinguishment of a restrictive covenant pursuant to s81A or s81J Real Property Act 1900 or cancellation due to abandonment of an easement pursuant to s49 Real Property Act 1900 has not expired.

If Item 7 is selected, item 1 or item 5 must also be selected.

(H) The terms that do not apply must be deleted and verified.

(I) Particulars of the estate or interest claimed must be set out in the first panel. In addition, details of any instrument and/or facts that support the claim must be stated in the applicable panel(s). See s74F Real Property Act 1900; regulations 7 & 8 and Schedule 3 of the current Real Property Regulation.

Note  A caveat cannot claim an estate or interest pursuant to a writ.

(J) If selected at Note (G):

  • Item 3 must state the delimitation plan number and
  • Item 6 must state the registered number of the restrictive covenant or easement.

Minor qualifications to the selected Items in Schedule 2 are acceptable providing they are clear and unambiguous. Some acceptable instances are:

  • a prohibition clause that is qualified to prevent registration of dealings by a prospective purchaser. The caveat will not prevent registration of dealings by the registered proprietor.
  • to allow registration of particular dealings normally prevented.

If dealings normally excepted by s74H(5)Real Property Act are included – refer to Leg99. 

Some unacceptable instances are:

  • prohibiting all dealings with the land when the claim is against a registered interest.
  • where the Registrar General is required to determine if more than just the estate or interest of the caveator is affected by a dealing or plan, eg prevent registration until a certain event happens other than the lodgment of a dealing or plan.

(K) The statutory declaration must be made by:

  • the sole caveator
  • at least one of the caveators where there is more than one caveator
  • the caveator's attorney, solicitor or barrister
  • a licensed conveyancer
  • an authorised officer (the nature of the authority must be disclosed)
  • a clerk for the State Crown Solicitors Office where the caveator is Her Majesty Queen Elizabeth II, the claim relates to land tax and the caveat is lodged by the State Crown Solicitors Office or
  • a Law Stationer or nominated employee as agent for the caveator. The full name and address of the declarant must be stated. The caveat must be accompanied by a letter from the caveator or the caveator's solicitor authorising the Law Stationer or nominated employee to execute the caveat as agent. The caveator's solicitor must state in the letter that he/she is the solicitor for the caveator, is aware of the caveator's claim, and that the Law Stationer or nominated employee is instructed to execute the caveat as agent.

Note  In the case of a caveat by the NSW Trustee and Guardian on behalf of another person, the statutory declaration must be made by an authorised officer of the Trustee in his/her own right, not in the name of the person on whose behalf the Trustee is acting.

If point No. 2 in the statutory declaration has been deleted:

  • the caveat must be accompanied by an Order of the Supreme Court authorising its lodgment or
  • the consent of the possessory applicant or the registered proprietor of the affected estate or interest must be endorsed on or attached to the caveat.

See s74O Real Property Act 1900.

(L) A registered proprietor of an estate or interest affected by a caveat, or a possessory applicant may consent to the lodgment of a further caveat in the circumstances set out in section 74O of the Real Property Act 1900. Select the applicable capacity either registered proprietor or possessory applicant.

A Notice of Caveat form 10-0220 is prepared and sent to all registered proprietors affected by the caveat at the address shown at Note (D).

Staff processing information

The following matter may be grounds for rejection at lodgment:

  • Note (A), (B): the reference to title is not supplied or is incorrect.
  • Note (D): the full name and address of the registered proprietor(s) against whom the claim is made is not supplied.

In all other instances the caveat must be accepted for lodgment and a requisition must be raised if the caveat is not in order.

A 1st Caveat Notice is not required to be sent if the Caveat is recorded immediately following lodgment.

Also a 1st Caveat Notice is not required to be sent if:

  • submitting for determination of priority to DRD2 or 
  • submitting to Legal for investigation and direction or
  • the registered proprietor’s details are incomplete.

In these instances a First Caveat Notice may be required to be sent at a later time if the caveat is further delayed.

All other cases containing a Caveat that is being delayed, requisitioned or referred for further action must proceed in an orange packet.

1st Caveat Notices will be prepared and sent by Support Officers in DRS, not by Examining Officers.

Note  A 1st Caveat Notice cannot be sent if the Caveat is not drawn against the current registered proprietor.

Examining officers are to take the additional following action where a 1st Caveat notice is required to be sent: 

  • obtain and place one copy of the lodged (numbered) Caveat with the case in an orange packet;
  • obtain and place one copy of the lodged (numbered) Caveat in the orange box labelled 'COPIES UNREGISTERED CAVEATS'. Boxes are located on the ground floor in Personal Lodgments, Bulk Lodgments and Off-line.

Requisitions affecting caveats must be sent through ITS which will automatically allow a 21 day resubmit period. The FILE (RESUBMIT _____) stamp placed on the manual minute paper must reflect the 21 days accordingly.

Where a case involves caveats and dealings both being requisitioned the 21 day resubmit date for the caveat must be used in the first instance.

Note  When requisitioning caveats and other dealings in the same case, then the caveat requisition must be sent separately.

If requisitions on caveat are not satisfied within 21 days submit caveat for rejection – do not allow an extension of time. Any doubt must be referred to the Administrative Officer (Practice) DRD2 through the Senior Examining Officer.

Caveats by the Home Purchase Assistance Authority (formerly known as the NSW Land and Housing Corporation) or Permanent Custodians Limited must be referred to the Team Leader, Registration Services Unit, LPI. If a registered proprietor has changed, the reference to title details etc must be deleted. Any copy of the caveat supplied (if a copy is not supplied one must be prepared) must be amended accordingly, have the duplicate dealing number affixed to it and be returned to the lodging party through the Advance Lodgment counter, Document Registration Services.

If in order proceed with recording of a caveat affecting:

  • the whole or
  • premises that have been adequately defined,

except for the following.

Refer to the Team Leader

If after requisitioning, the address is still not supplied for approval to record the caveat.

Refer to DRD2

A caveat:

Refer to SM99

A caveat affecting:

  • part of the land not being premises contained in a lease.
  • premises as referred to in an attached plan.

Refer to Legal through the Senior Examining Officer

A caveat:

  • affecting the common property of a Strata scheme.
  • affecting lot 1 in a Community Title scheme.
  • prohibiting an application to cancel an easement due to abandonment.
  • prohibiting an application to cancel a restrictive covenant.
  • prohibiting an unregistered possessory application which is noted on the Register.
  • where it cannot be determined whether the caveator's claim in Schedule 1 constitutes a legal or equitable interest in the land, or the claim is otherwise questionable.

Registration procedure

For a request to record the caveat on the certificate of title.

Caveat affecting the whole

PRIME CODE

X
XA (GE Personal Finance Pty Ltd)
XH (Home Purchase Assistance Authority)
XQ (Her Majesty Queen Elizabeth The Second
XS (State Bank of NSW Limited)
XTG (New South Wales Trustee and Guardian)

CODE  (name) P, C or Q where Prime Code X is selected

[name of caveator (not required for XA, XH, XS or XQ code)].

Affecting premises

[name of caveator] Affecting [description of premises].

Affecting the share or interest of a registered proprietor

[name of caveator] As Regards The Share/Interest Of [name of party affected].

Caveat affecting a lease, mortgage or charge

TRANSACTION  click Cancel. In Prime Code field select UNDR

PRIME CODE  code of lease etc affected as shown on the Register

PRIME NO.  number of lease etc

SUB CODE

ULX (lease)
UMX (mortgage)
UCX (charge)

CODE  (name)  P, C or Q  [name of caveator]

DETAILS  as required.