On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Priority between caveats and dealings

A caveat is effective from the time of lodgment and has priority over unregistered dealings that are not in registrable form.
A dealing is in 'registrable form' if it:

  • requires no correction or amendment, other than a correction made by the Registrar General under section 39(3) Real Property Act 1900 and
  • is in the approved form.

See section 36(6) Real Property Act 1900.

NOTE: the dealing must also be accompanied by a completed Notice of Sale form where required in accordance with section 39(1B) Real Property Act 1900.

NOTE: Where the caveat does not prohibit registration of the dealing, priority between the caveat and the unregistered dealing is not considered. In this regard attention is directed to sections 74H(5)(1), (2) and (5) Real Property Act 1900.

Where a caveat has been uplifted, it will not prohibit the recording or registration of the matters prohibited by the caveat until it is relodged (see section 36(6AA) Real Property Act 1900). A caveat may have to be uplifted in order to satisfy one or more of the following matters:

  • The caveat has not been marked by Revenue NSW where required
  • Note (D) the name of the registered proprietor has been omitted or is obviously that of a different party
  • Note (F) the address for service of notices on the caveator is not stated, is not within Australia, or is a Post Office box
  • Note (G) no item number has been stated. Item 5 is only appropriate where the caveator is the registered proprietor of an estate or interest recorded on the Register or the NSW Trustee and 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 is only appropriate 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 (see section 74(F)(4C)) or
    • an application for cancellation under section 49 Real Property Act 1900 is lodged and before it is granted (see section 74(F)(4A))
  • Note (I) no claim or nature of instrument has been stated
  • Note (I) the estate or interest claimed is pursuant to a writ
  • Note (K) the statutory declaration has not been signed by the caveator etc. or witnessed by a prescribed functionary.

A caveat that has been uplifted loses priority over any other dealing that is in registerable form.

See the following link for more information on a substitute dealing or caveat.

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

Staff processing information

Where a caveat has been uplifted, it will not prohibit the recording or registration of the matters prohibited by the caveat until it is relodged (see section 36(6AA) Real Property Act 1900). A caveat may have to be uplifted in order to satisfy one or more of the following matters:

  • The caveat has not been marked by Revenue NSW where required
  • Note (D) the name of the registered proprietor has been omitted or is obviously that of a different party
  • Note (F) the address for service of notices on the caveator is not stated, is not within Australia, or is a Post Office box
  • Note (G) no item number has been stated. Item 5 is only appropriate where the caveator is the registered proprietor of an estate or interest recorded on the Register or the NSW Trustee and 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 is only appropriate 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 (see section 74(F)(4C)) or
    • an application for cancellation under section 49 Real Property Act 1900 is lodged and before it is granted (see section 74(F)(4A))
  • Note (I) no claim or nature of instrument has been stated
  • Note (I) the estate or interest claimed is pursuant to a writ
  • Note (K) the statutory declaration has not been signed by the caveator etc. or witnessed by a prescribed functionary.

A caveat that has been uplifted loses priority over any other dealing that is in registerable form.
Where a caveat is connected to a dealing which is not in order for registration, or conversely where a dealing is attached to a caveat which is not in order, the case must be submitted to DRD2 for consideration of priority, except where the caveat does not forbid registration of the dealing. If in doubt refer to your Team Leader.
 

Publication Date: March 2024