If you own property in Queensland with a caveatable interest, you can remove it under the Land Title Act 1994 (the Act) in three different ways:
- application to the Supreme Court; or
- Registrar’s cancellation.
The caveator may also withdraw the caveat by lodging Form 14, General Request, to the Queensland Titles Registry. We explore these methods below.
In Queensland, a caveat is either lapsing or non-lapsing. A caveator must first withdraw the caveat (either independently or by order of the Supreme Court). Under section 126 of the Act, non-lapsing caveats are those that are lodged:
- by the registered owner; or
- with the consent of the registered owner; or
- with a court order under section 122(1)(d) or (e); or
- by the Registrar under section 17; or
- otherwise than under Division 2 of the Act.
Caveats that do not fall under the above categories are lapsing caveats. For these caveats, as the owner of the land, you can serve notice under section 126 on the caveator to commence legal proceedings within 14 days. When the caveator receives the notice, they must show a reason why the caveat should remain on the title, failing which the caveat will lapse. You must notify the Registrar within 14 days if you have served notice to the caveator. If the caveator does not take any action, then the caveat automatically lapses after 14 days, and you can request for its removal by the Registrar.
Further, a lapsing caveat will automatically expire with no action from either you or the caveator. Under section 126(4), a lapsing caveat automatically lapses three months from the time it was lodged, unless the caveator starts proceedings and explains to the court the reason for the caveat. The caveator wears the obligation to commence proceedings. Importantly, if you choose not to follow this route of serving notice, you can apply to the Supreme Court directly to remove the caveat.
2. Application to Supreme Court
Under section 127 of the Act, you can apply to the Supreme Court for an order to remove a caveat. Section 127(b) specifies that the court can make the order regardless of whether or not the caveator has been served with the application and has discretion in determining the orders. Use this method if, for any reason, you cannot locate the caveator, the caveator has since deceased, or you are unaware of who the caveator is.
Finally, under section 128 of the Act, the Registrar may cancel a caveat if the request to cancel is lodged and the Registrar is satisfied that:
- the interest under the caveat claimed has ceased, been abandoned or withdrawn;
- the caveat claim has been settled by agreement or otherwise satisfied; or
- the nature of the three does not entitle the caveator to prevent another lodged registration.
In this case, the Registrar must notify the caveator of the cancellation at least seven days prior.
If the property you own has a caveat registered over it, which you wish to have removed, there are a number of key points you should remember:
- Is the caveat a lapsing or non-lapsing caveat? If the caveator lodged the caveat with your consent, then it is non-lapsing.
- If the caveat is a lapsing caveat, you can remove it by notifying the caveator or applying to the Supreme Court – you should pick the best method based on the urgency of the removal and the purpose for removing the caveat.
- If you don’t do anything for a lapsing caveat, after 3 months it will automatically lapse anyway, unless the caveator begins court proceedings to argue otherwise.