Caveats – the Magic Money Bullet?

Posted on 20 June 2011

“I want to get a caveat to make sure that I get my money”

It’s a phrase that we hear fairly regularly. And caveats are very helpful for doing just that. However, before you entrust your peace of mind and your money, there are some things to consider.

If not prepared properly, your caveat can be rejected by the Department of Lands for a myriad of reasons. Simple things (an incorrect title reference, improper execution of the statutory declaration or not stating an address for service of notices) or more complex things (caveat does not claim an interest in the land or action prohibited by the Caveat has not been stated) can cost you precious time.

Making sure that you lodge your caveat quickly after discovering the need for some security is crucial to make sure that the property isn’t sold without your knowledge. But the fact that is often surprising is that once you have your caveat lodged, you still aren’t guaranteed that it will secure your money or interest in the property. 

If the person who owns the property lodges a lapsing notice, you may need to fight it in the Supreme Court or find another way to secure your money or prevent the sale of the property. At this decision point, you need to be extremely cautious as, if you are ordered to pay costs such as in this particularly brief judgement, the whole exercise can become particularly expensive.

What you won’t always realise is that there are other options.

In debt collection, for example, it may be a faster process to pursue the matter through the Local Court and seek a judgement that way.

Divorce or separation of de facto partners is another situation where we commonly hear the term caveat bandied about. What you need to know though is that it’s essential to start work on separating your finances and getting a property settlement as well. You don’t want to find yourself in a situation where the Family Court or Federal Magistrates Court decides that your claim against your partner is out of time and your well-prepared caveat becomes useless.

So, although you can prepare a caveat yourself, it is wise to seek some legal advice. Yes, you might spend some money, but if you miss your chance, you may lose out on a lot more.

Keep in mind that caveats are an extraordinarily useful tool but, unfortunately, are not the magic money bullet.

Some more reading on caveats and how to contact us.