Caveats – Western Australia – Frequently Asked Questions

Can I lodge a caveat?

Yes, you certainly can. However, a better question to ask is whether you have a legitimate basis for a caveat.

The caveats system in Western Australia is almost entirely administrative. That is, if you fill in the form correctly, Landgate (the Western Australian Government office that handles land titles) will register your caveat[1]. Landgate does not take a position on whether your claim is valid or not. However, if you have not got a proper basis for that caveat, it can be removed and you might be liable for costs of a wrongful caveat.

What do I need to lodge a caveat?

In order to have a caveatable interest, you must have a claim over the land rather than against the person. To explain – most debts are personal, the debtor owes you money. Some debts allow you to recover the actual item, those are a claim against the asset. It is the latter that you need to have a caveatable interest – you need a claim against the property you wish to caveat, not just against the owner of the land. Then that claim needs to be recognised at law as giving an interest capable of supporting a caveat.

What are some examples of caveats?

There are a variety of ways in which a caveatable interest might arise. A common one is where the registered proprietor of the land charges the land as security for a debt. That means that the borrower tells the lender in writing that they will repay the loan AND that the lender has a security interest over the borrower’s property to protect the loan.[2]

Another way that a caveatable interest may arise is where two people purchase a property together – each contributing half of the deposit and other costs – but only one name appears on the title. The law may recognise that half of the property is held on trust for the person whose name does not appear on title where there is a mutual intention for co-ownership and to recognise the contributions of the parties.

A caveatable interest will arise where there is an enforceable contract to sell the land which has not yet been completed. Commonly known as a ‘buyer’s caveat’, it protects the buyer’s interest in the property until settlement has been finalised.

A final example is through a promise to share the sale proceeds of land. Where a representation has been made and evidenced in writing that a person will take a share of the proceeds of the property on sale, a caveatable interest may arise.

There are numerous other ways that a caveatable interest might arise – but they all require that the caveator have a recognised interest in the land that the law will protect by way of caveat.

How do I lodge a caveat?

Nowadays almost all caveats are lodged electronically through PEXA. This means that you will need to have an authorised PEXA user lodge a caveat on your behalf. This will generally require you to engage a lawyer.

Then the lawyer will need to identify you. Because of the risk of fraud, it is important when dealing on land titles that you are who you claim to be. This is a similar process to when you open a bank account. It is a PEXA requirement that your lawyer certify they have taken appropriate steps to confirm your identity.

Next, once you have been identified, your lawyer will need to satisfy themselves that you have a caveatable interest. This may require you to show how you fall into one of the categories discussed above or show copies of any documents you have which give rise to your interest. This is because your lawyer must certify as part of the PEXA lodgement process that they are satisfied you have a proper foundation for your caveat.

You will also need to complete a form giving your lawyer the authority to transact on PEXA on your behalf. Again, this is a requirement for those who use the PEXA system.

Finally, there are costs involved in the lodgement of a caveat. On top of any fees charged by your lawyer for their services, Landgate and PEXA impose fees for their services. Currently those fees are approximately $230.00[3].

What are the consequences of a caveat?

The first consequence of lodging a caveat is that the lodgement process puts the title into ‘dealing’. That is, Landgate’s records will show that something is happening on the title. That can cause issues if there is a sale taking place, or a refinance occurring.

Otherwise, it depends on what type of caveat you lodge. There are three types of caveats:

• A notice caveat,
• A subject to claim caveat, and
• An absolute caveat.

A notice caveat is what it sounds like. If someone wants to transact on the title, the caveator is given notice of the dealing before the dealing can proceed. Similarly, a ‘subject to claim’ caveat does not prevent a dealing on the title – but any purchaser who takes the property must acknowledge the claim protected by the caveat. On a practical level it is rare that a purchaser will proceed with the acquisition of a property with a caveat remaining on title – but it is not unheard of.

On the other hand, an absolute caveat forbids dealing on the title absolutely. This could entirely prevent a sale of property or a refinance.

The Transfer of Land Act also specifically provides that a caveator can be liable for losses occasioned by the wrongful lodgement of a caveat – so it is important to ensure you have a proper basis before you lodge.

How do I remove a caveat?

In Western Australia caveats do not lapse automatically. Once they are on a title, they remain there until they are withdrawn or removed.

There are three primary ways in which a caveat can be removed in Western Australia. The first is on application by the registered proprietors to the Registrar of Titles to issue a 21 day notice to the caveator. That notice requires the caveator to obtain and serve a Supreme Court order extending the caveat before the 21 day deadline expires. Landgate charges a fee for this application of approximately $400 and PEXA charges approximately $25[4]. There may also be legal fees.

The second way in which a caveat can be removed is by consent of the caveator. The caveator can lodge a withdrawal of caveat with Landgate which will remove the caveat from the title. Of course, there are fees for this which mirror the fees for lodgement.

Finally, a caveat can be removed by application directly to the Supreme Court by any person with a sufficient interest in the property for the removal of the caveat. Obviously, there are legal costs involved in this application.

Unless the matter is urgent or agreed, a 21 day notice will generally be used for the removal of a caveat.

What do I do if I receive a 21 day notice for removal of caveat?

That depends on what you want to occur. If you are happy for the caveat to be removed, you don’t need to do anything at all. The caveat will lapse once the 21 days have expired.

However, if you do not want the caveat to lapse and you think that you have a valid claim, you should urgently obtain legal advice and bring an application to extend the operation of a caveat. If you do not do so and your caveat lapses, you cannot relodge the caveat without either the consent of the property owner or an order of the Supreme Court.

[1] In some circumstances they might require a statutory declaration to support you caveat. Landgate can also requisition a caveat if the claim is not adequately supported or described.

[2] The writing requirement is important. Interests in land generally should be created by writing.

[3] As at 1 January 2025.

[4] As at 1 January 2025