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

Lapsing of caveat pursuant to sections 74H(6) and (7) Real Property Act 1900

A caveat will lapse pursuant to section 74H(6) and (7) Real Property Act 1900 when the estate or interest claimed by the caveator vests in the caveator upon registration of a dealing. A caveat affecting several folios of the Register may be lapsed as regards less than all the folios.

Partial satisfaction of a caveator's interest or claim is not sufficient to warrant the lapsing of the caveat. For example, a registered caveat against premises being shops 1 and 2 etc. claiming an interest pursuant to an unregistered lease of shops 1 and 2 will not lapse upon registration of a lease for shop 1 only. In this instance, the lease cannot be registered until a withdrawal of caveat is lodged, a caveator's consent is furnished, or the caveat is lapsed pursuant to section 74I Real Property Act 1900 by a Preparation of Lapsing Notice form 08LX.

Where doubt exists as to whether the caveator's interest has been fully satisfied, the caveat will not be lapsed and a requisition will be raised on the conflicting dealing. For example, a caveat claiming pursuant to an equitable mortgage dated 1 January 2010 will not lapse upon the lodgment of an undated mortgage in favour of the caveator as there is no certainty that the mortgages are one and the same.

NOTE: A caveat claiming pursuant to a dated loan agreement cannot be lapsed upon lodgment of a similarly dated mortgage. They will be treated as different interests unless notified otherwise.

Caveator's consent lodged with dealing

Where the caveator's consent is furnished with a dealing that would lapse the caveat pursuant to section 74H(6) or (7) Real Property Act 1900, without a specific instruction as to whether the caveat is to remain or be removed from the Register, a requisition will be sent to the lodging party requesting written direction:

  • to lapse the caveat upon registration of the dealing or
  • to leave the caveat on the Register and register the dealing.

If no response is received by the due date, the caveat will be left on the Register and the dealing will be registered. The caveator's consent must be scanned with the dealing.

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

Staff processing information

Where the caveator's consent is furnished with a dealing that would lapse the caveat pursuant to section 74H(6) or (7) Real Property Act 1900, without a specific instruction as to whether the caveat is to remain or be removed from the Register, a requisition must be sent to the lodging party requesting written direction:

  • to lapse the caveat upon registration of the dealing or

  • to leave the caveat on the Register and register the dealing.

If no response is received by the due date, the caveat is to be left on the Register and the dealing is to be registered. The caveator's consent must be scanned with the dealing.

NOTE: A caveat by Latitude Personal Finance Pty Ltd (formerly Avco Financial Services Limited and GE Personal Finance Pty Limited) claiming pursuant to an unregistered mortgage or charge cannot be lapsed unless the incoming mortgage or charge is accompanied by a letter stating that the caveat may be lapsed. Otherwise a requisition 'Caveat [dealing number] by GE Personal Finance Pty Limited is noted on the Register' will be sent.

 

Published Date: March 2024