Caveat

Form  08X

Dealing Type - X

Legislation - s74F Real Property Act 1900

Stamp Duty - required where the estate or interest claimed is pursuant to an unregistered mortgage, loan agreement, or deed of charge dated on or after 1 January 1987 & before 1 July 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 or
  • the claim is a charge pursuant to section 355 Water Management Act 2000.

A deed of charge is an interest that can be registered by lodging a Charge form 06C. See Charge pages.

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.

NOTE: A caveat is effective from the time of lodgment.

NOTE: This dealing type may be lodged as a Dealing with Exception provided it is accompanied by a completed Lodgment Rules Exception form. In all other instances, the electronic dealing must be used.

A caveat is a form of statutory injunction provided for under the Real Property Act 1900. A caveat records a claim for a legal or equitable estate or interest in land. Once a caveat is lodged it remains effective until it is uplifted or withdrawn (either by the caveator or court order) or until it lapses.

A caveat must not be lodged without reasonable cause. Any person who lodges a caveat without reasonable cause may be liable for damages – see section 74P Real Property Act 1900.

For more information about caveats, see Caveat information page and Exceptions to standard form of caveat page

(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 or
  • part of the land not being premises contained in a lease must fully describe the part as is required for a lease, see Marginal Note (A) of the Guideline relating to 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 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 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 Post Office box number is not acceptable. See section 74F(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.

NOTE: When Item 4 is selected, it will prevent the granting of the Possessory Application.

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

NOTE: 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.

NOTE: Item 6 only applies where the period specified in any notice of extinguishment of a restrictive covenant pursuant to section 81A or section 81J Real Property Act 1900 has not expired (section 74(F)(4C)) or cancellation due to abandonment of an easement pursuant to section 49 Real Property Act 1900 is lodged and before it is granted (see section 74(F)(4A)).

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

(H)   The appropriate text must be selected.

(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 section 74F Real Property Act 1900; clauses 7 & 8 and Schedules 2 and 3 of the Real Property Regulation 2019.

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

Any discrepancy between the details as set out on the front of the caveat form and in Schedule 1 (estate or interest claimed) will be first referred to a Senior Dealing Examiner for assessment and where further doubt exists, must be referred to NSW LRS’ Legal Division.

(J)   If selected at Marginal 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 and
  • to allow registration of particular dealings normally prevented.

If dealings normally excepted by section 74H(5)Real Property Act 1900 are included it will be referred to NSW LRS’ Legal Division for examination. 
Some unacceptable instances are:

  • prohibiting all dealings with the land when the claim is against a registered interest and
  • 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, e.g. 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) 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.

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

  • the caveat must be accompanied by a Supreme Court Order 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 section 74O Real Property Act 1900 and Further caveat page.

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.

(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 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 Marginal Note (D).

The following matter may be grounds for rejection at lodgment:

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

If requisitions on caveat are not satisfied within 21 days the caveat will be rejected – no extensions of time will be granted.

All NSW legislation can be accessed at www.legislation.nsw.gov.au/. 
 

Staff processing information

Any discrepancy between the details as set out on the front of the caveat form and in Schedule 1 (estate or interest claimed) will be first referred to a Senior Dealing Examiner for assessment and where further doubt exists, must be referred to Legal. See section 74H(1)(a) and (b) Real Property Act 1900.

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 1st 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 Dealing Examiners.

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

Dealing Examiners are to save a copy of the lodged (numbered) caveat electronically where a 1st Caveat notice is required to be sent.

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 DRD2 through the Senior Dealing Examiner.

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, NSW LRS. 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 and
  • premises as referred to in an attached plan.

Refer to Legal through the Senior Dealing Examiner

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 and
  • 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


Caveat affecting the whole

PRIME CODE

X
XA   (GE Personal Finance Pty Ltd)
XH   (Home Purchase Assistance Authority)
XKC (His Majesty King Charles III)
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.

 

 

Publication Date: July 2024