CAVEAT ON PROPERTY - without owners knowledge?

[jackeroo]

What is the position of a caveat being taken out on a property in any
australian state without the owners knowledge?

He becomes aware when he renews mortgage or some such?

[Galimatias]

jackeroo wrote:
> What is the position of a caveat being taken out on a property in any
> australian state without the owners knowledge?

A caveat is a warning to anyone thinking of dealing with the owner of the
property that someone else not appearing on the title register may have an
interest in the property. You would probably not want to buy the property,
for example, unless the owner arranged for the removal of the caveat. There
is no requirement that the owner be informed about the caveat being lodged
by the person lodging the caveat. It has been known for a person to lodge a
caveat just to get up the nose of the owner of the land.

> He becomes aware when he renews mortgage or some such?

In most jurisdictions, the land registry is supposed to give notice to the
owner that the caveat has been lodged. If that doesn't happen for some
reason, the owner may not find out until there is a title search for some
reason.

[Peter]

On Sun, 28 Nov 2004 09:48:14 +1100, "Galimatias"
<clamour@incoherence.org> wrote:


>In most jurisdictions, the land registry is supposed to give notice to the
>owner that the caveat has been lodged. If that doesn't happen for some
>reason, the owner may not find out until there is a title search for some
>reason.
>
Is not the Land Registrar supposed to try and recall the 'duplicate'
title from the owner or mortgagee to add the 'caveat' memorial?

[Galimatias]

Peter wrote:
> On Sun, 28 Nov 2004 09:48:14 +1100, "Galimatias"
> <clamour@incoherence.org> wrote:
>
>
>> In most jurisdictions, the land registry is supposed to give notice
>> to the owner that the caveat has been lodged. If that doesn't
>> happen for some reason, the owner may not find out until there is a
>> title search for some reason.
>>
> Is not the Land Registrar supposed to try and recall the 'duplicate'
> title from the owner or mortgagee to add the 'caveat' memorial?

The caveat does not in itself involve a qualification or limit on the
registered title so there is nothing to add to the evidence of title. It is
only a warning to anyone thinking of dealing with the title holder.

[jackeroo]

"Galimatias" <clamour@incoherence.org> wrote in message
news:3eslnbjimc0a2t2.281120041628@127.0.0.1...
> Peter wrote:
> > On Sun, 28 Nov 2004 09:48:14 +1100, "Galimatias"
> > <clamour@incoherence.org> wrote:
> >
> >
> >> In most jurisdictions, the land registry is supposed to give notice
> >> to the owner that the caveat has been lodged. If that doesn't
> >> happen for some reason, the owner may not find out until there is a
> >> title search for some reason.
> >>
> > Is not the Land Registrar supposed to try and recall the 'duplicate'
> > title from the owner or mortgagee to add the 'caveat' memorial?
>
> The caveat does not in itself involve a qualification or limit on the
> registered title so there is nothing to add to the evidence of title. It
is
> only a warning to anyone thinking of dealing with the title holder.
>
A bit loose that law, if you do not access title for some years, if a caveat
has been placed to cover a debt that you are unaware of , the debt grows
with the surety of caveat however long it takes?

Till when you become aware of the caveat the interest on the debt would make
it large enough to make any collector happy. But just small enough to not
make it worthwhile to defend.

What are the requirements for notification of debt?

[Peter]

On Sun, 28 Nov 2004 16:28:23 +1100, "Galimatias"
<clamour@incoherence.org> wrote:


>> Is not the Land Registrar supposed to try and recall the 'duplicate'
>> title from the owner or mortgagee to add the 'caveat' memorial?
>
>The caveat does not in itself involve a qualification or limit on the
>registered title so there is nothing to add to the evidence of title. It is
>only a warning to anyone thinking of dealing with the title holder.
>
As I understand the Torrens Title System, each document lodged
pertaining to a title is recorded on the original (Registrar's copy)
and duplicate (owner's or mortgagee's copy) of the title. These are
called 'memorials' and include change of ownership, registration of
mortgages etc. When mortgages are discharged or caveats removed, the
memorial in question is cancelled. When you search the title, you
know there is a caveat on the title because of a memorial saying so
and giving the name of the party lodging it and a reference number to
the lodged document. You can then search the actual caveat document
that was lodged. The information on the duplicate should be the same
as on the original and the duplicate needs to be returned to the
registrar for recording memorials as approproiate and in the case of
caveats the duplicate would presumably be updated (if still 'alive')
next time the Registrar sees the duplicate.

A person caveating a title needs to have the copy of an agreement or
the like indicating some potential interest in the property for the
Registrar. A person improperly caveating a title or failing to
legally enforce the agreement in question would be up for damages for
losses and costs incurred by the property owner. The owner can also
ask a judge to remove a caveat (all Registrar's actions and decisions
are open to judicial review), and if successful costs would be awarded
against the party placing the caveat. A person placing a caveat
without informig the owner could potentially be in hotter water.

[Galimatias]

Peter wrote:
> On Sun, 28 Nov 2004 16:28:23 +1100, "Galimatias"
> <clamour@incoherence.org> wrote:
>
>
>>> Is not the Land Registrar supposed to try and recall the 'duplicate'
>>> title from the owner or mortgagee to add the 'caveat' memorial?
>>
>> The caveat does not in itself involve a qualification or limit on the
>> registered title so there is nothing to add to the evidence of
>> title. It is only a warning to anyone thinking of dealing with the
>> title holder.
>>
> As I understand the Torrens Title System, each document lodged
> pertaining to a title is recorded on the original (Registrar's copy)
> and duplicate (owner's or mortgagee's copy) of the title. These are
> called 'memorials' and include change of ownership, registration of
> mortgages etc. When mortgages are discharged or caveats removed, the
> memorial in question is cancelled. When you search the title, you
> know there is a caveat on the title because of a memorial saying so
> and giving the name of the party lodging it and a reference number to
> the lodged document. You can then search the actual caveat document
> that was lodged. The information on the duplicate should be the same
> as on the original and the duplicate needs to be returned to the
> registrar for recording memorials as approproiate and in the case of
> caveats the duplicate would presumably be updated (if still 'alive')
> next time the Registrar sees the duplicate.
>
> A person caveating a title needs to have the copy of an agreement or
> the like indicating some potential interest in the property for the
> Registrar. A person improperly caveating a title or failing to
> legally enforce the agreement in question would be up for damages for
> losses and costs incurred by the property owner. The owner can also
> ask a judge to remove a caveat (all Registrar's actions and decisions
> are open to judicial review), and if successful costs would be awarded
> against the party placing the caveat. A person placing a caveat
> without informig the owner could potentially be in hotter water.

Some of caveats get put on the register because someone thought it might be
a good idea to make sure that the land cannot be sold without the caveat
being removed. And you don't find out it's there until the titles office
tells you so or you want to deal with the property. That latter sometimes
means paying a debt of some kind to the person lodging the caveat. In the
real world, if it's as simple as that, you may be better off doing the
practical thing and paying the debt.

The last thing most people want is a legal bun-fight in the Supreme Court,
or even just an administrative fight before the Registrar (depending on your
jurisdiction).

[Galimatias]

jackeroo wrote:
> "Galimatias" <clamour@incoherence.org> wrote in message
> news:3eslnbjimc0a2t2.281120041628@127.0.0.1...
>> Peter wrote:
>>> On Sun, 28 Nov 2004 09:48:14 +1100, "Galimatias"
>>> <clamour@incoherence.org> wrote:
>>>
>>>
>>>> In most jurisdictions, the land registry is supposed to give notice
>>>> to the owner that the caveat has been lodged. If that doesn't
>>>> happen for some reason, the owner may not find out until there is a
>>>> title search for some reason.
>>>>
>>> Is not the Land Registrar supposed to try and recall the 'duplicate'
>>> title from the owner or mortgagee to add the 'caveat' memorial?
>>
>> The caveat does not in itself involve a qualification or limit on the
>> registered title so there is nothing to add to the evidence of
>> title. It is only a warning to anyone thinking of dealing with the
>> title holder.
>>
> A bit loose that law, if you do not access title for some years, if a
> caveat has been placed to cover a debt that you are unaware of , the
> debt grows with the surety of caveat however long it takes?

What do you mean? A caveat is not like a mortgage, which is a security
interest in property to ensure payment of a loan and interest. It is simply
a warning, a sort of "purchaser beware" sign. In practice, it means that
the owner has to take some action to get it removed before a sensible
purchaser will enter into a contract to buy the property. If the caveat is
simply there in an attempt to protect a creditor, and there is nothing
linking the property in any way to the underlying debt, the caveat may be
unsupportable in law.

What exactly is your situation?

> Till when you become aware of the caveat the interest on the debt
> would make it large enough to make any collector happy. But just
> small enough to not make it worthwhile to defend.

The outstanding loan plus interest is not a charge against the property.

> What are the requirements for notification of debt?

What do you mean? I could guess, but easily guess wrong.

[Peter]

On Sun, 28 Nov 2004 22:35:29 +1100, "Galimatias"
<clamour@incoherence.org> wrote:


>
>Some of caveats get put on the register because someone thought it might be
>a good idea to make sure that the land cannot be sold without the caveat
>being removed. And you don't find out it's there until the titles office
>tells you so or you want to deal with the property. That latter sometimes
>means paying a debt of some kind to the person lodging the caveat. In the
>real world, if it's as simple as that, you may be better off doing the
>practical thing and paying the debt.

This is presumably because the parties previously agreed that the
property could be caveated or an agreement touched on the property to
enable it to be caveated (eg if you agree to purchase a property you
could caveat it to stop it being sold to someone who made a better
offer).
>
>The last thing most people want is a legal bun-fight in the Supreme Court,
>or even just an administrative fight before the Registrar (depending on your
>jurisdiction).
>
Agreed - fighting a caveat is not a wise way of resisting paying a
debt - if the debtor has a legitimate reason for not paying the debt,
this should be dealt with first, and if upheld, the other party would
be very strongly advised to cancel the caveat.

A caveat lodged after a mortgage AFAIK does not affect a mortgagee's
rights. I (in my employment) was asked by a legal executive to accept
a caveat to secure a debt, and I said yes, if the mortgagees agreed -
that was the end of that. In this instance the debtor needed to pay
to get a certificate for the council that his subdivision had been
reticulated for power.

[jackeroo]

"Galimatias" <clamour@incoherence.org> wrote in message
news:6xbz0kpjvaaw4ei.281120042245@127.0.0.1...
> jackeroo wrote:
> > "Galimatias" <clamour@incoherence.org> wrote in message
> > news:3eslnbjimc0a2t2.281120041628@127.0.0.1...
> >> Peter wrote:
> >>> On Sun, 28 Nov 2004 09:48:14 +1100, "Galimatias"
> >>> <clamour@incoherence.org> wrote:
> >>>
> >>>
> >>>> In most jurisdictions, the land registry is supposed to give notice
> >>>> to the owner that the caveat has been lodged. If that doesn't
> >>>> happen for some reason, the owner may not find out until there is a
> >>>> title search for some reason.
> >>>>
> >>> Is not the Land Registrar supposed to try and recall the 'duplicate'
> >>> title from the owner or mortgagee to add the 'caveat' memorial?
> >>
> >> The caveat does not in itself involve a qualification or limit on the
> >> registered title so there is nothing to add to the evidence of
> >> title. It is only a warning to anyone thinking of dealing with the
> >> title holder.
> >>
> > A bit loose that law, if you do not access title for some years, if a
> > caveat has been placed to cover a debt that you are unaware of , the
> > debt grows with the surety of caveat however long it takes?
>
> What do you mean? A caveat is not like a mortgage, which is a security
> interest in property to ensure payment of a loan and interest. It is
simply
> a warning, a sort of "purchaser beware" sign. In practice, it means that
> the owner has to take some action to get it removed before a sensible
> purchaser will enter into a contract to buy the property. If the caveat
is
> simply there in an attempt to protect a creditor, and there is nothing
> linking the property in any way to the underlying debt, the caveat may be
> unsupportable in law.
>
> What exactly is your situation?
>
> > Till when you become aware of the caveat the interest on the debt
> > would make it large enough to make any collector happy. But just
> > small enough to not make it worthwhile to defend.
>
> The outstanding loan plus interest is not a charge against the property.

Of course. Under a settlement with all creditors one creditor is not
included without your knowledge.

Said creditor is bought by legal firm which takes out caveat.

Having settled and paid out creditors , re established credit so continued
trading as normal.

After years of successful trading decide to expand. Intend using a property
for finance with mortgage. Then find that caveat has been attached. Original
debt is now 5 to 6 times original amount because of interest.

Yes interest and costs raised amount considerably.

Annoying as amount not really worthwhile defending and so pay out.

Time period some 10 years which make orginal details hard to come by. Just
aware was dealing with firm, thought it had been settled along with other
creditors.

However firm had gone bankrupt somewhere along line and debts and some other
interests had been purchased by company that placed caveat.

Interesting method if someone ever owes me money?

Happened in Victoria, so if there is no requirement to either advise owner
of caveat, or to advise owner of the debt owed.
It becomes a great long term investment for companies willing to wait it
out? Or if it slides down a pigeonhole?
>
> > What are the requirements for notification of debt?
>
> What do you mean? I could guess, but easily guess wrong.
>
>
>
>
>
>
>
>
>

[JJMoon]

jackeroo wrote:
> "Galimatias" <clamour@incoherence.org> wrote in message
> news:6xbz0kpjvaaw4ei.281120042245@127.0.0.1...
>
>>jackeroo wrote:
>>
>>>"Galimatias" <clamour@incoherence.org> wrote in message
>>>news:3eslnbjimc0a2t2.281120041628@127.0.0.1...
>>>
>>>>Peter wrote:
>>>>
>>>>>On Sun, 28 Nov 2004 09:48:14 +1100, "Galimatias"
>>>>><clamour@incoherence.org> wrote:
>>>>>
>>>>>
>>>>>
>>>>>>In most jurisdictions, the land registry is supposed to give notice
>>>>>>to the owner that the caveat has been lodged. If that doesn't
>>>>>>happen for some reason, the owner may not find out until there is a
>>>>>>title search for some reason.
>>>>>>
>>>>>
>>>>>Is not the Land Registrar supposed to try and recall the 'duplicate'
>>>>>title from the owner or mortgagee to add the 'caveat' memorial?
>>>>
>>>>The caveat does not in itself involve a qualification or limit on the
>>>>registered title so there is nothing to add to the evidence of
>>>>title. It is only a warning to anyone thinking of dealing with the
>>>>title holder.
>>>>
>>>
>>>A bit loose that law, if you do not access title for some years, if a
>>>caveat has been placed to cover a debt that you are unaware of , the
>>>debt grows with the surety of caveat however long it takes?
>>
>>What do you mean? A caveat is not like a mortgage, which is a security
>>interest in property to ensure payment of a loan and interest. It is
>
> simply
>
>>a warning, a sort of "purchaser beware" sign. In practice, it means that
>>the owner has to take some action to get it removed before a sensible
>>purchaser will enter into a contract to buy the property. If the caveat
>
> is
>
>>simply there in an attempt to protect a creditor, and there is nothing
>>linking the property in any way to the underlying debt, the caveat may be
>>unsupportable in law.
>>
>>What exactly is your situation?
>>
>>
>>>Till when you become aware of the caveat the interest on the debt
>>>would make it large enough to make any collector happy. But just
>>>small enough to not make it worthwhile to defend.
>>
>>The outstanding loan plus interest is not a charge against the property.
>
>
> Of course. Under a settlement with all creditors one creditor is not
> included without your knowledge.
>
> Said creditor is bought by legal firm which takes out caveat.

as the other poster said this debt is not a charge against the property.
A caveat is a warning that a person is claiming an interest in the land.

A debt is not an interest in land and therefore can not support the
registration of a caveat.
The titles office should not allow a caveat to be registered without
your consent unless the caveat claimed an interest in the land.
>
> Having settled and paid out creditors , re established credit so continued
> trading as normal.
>
> After years of successful trading decide to expand. Intend using a property
> for finance with mortgage. Then find that caveat has been attached. Original
> debt is now 5 to 6 times original amount because of interest.
Once the dealing for the mortgage was lodged then caveator has 28 days
to start proceedings for claim on interest in land or caveat lapses.

Hard to see how debt could be interest in land.
Was this a consent caveat?

>
> Yes interest and costs raised amount considerably.
>
> Annoying as amount not really worthwhile defending and so pay out.
>
> Time period some 10 years which make orginal details hard to come by. Just
> aware was dealing with firm, thought it had been settled along with other
> creditors.
>
> However firm had gone bankrupt somewhere along line and debts and some other
> interests had been purchased by company that placed caveat.
>
> Interesting method if someone ever owes me money?
>
> Happened in Victoria, so if there is no requirement to either advise owner
> of caveat, or to advise owner of the debt owed.
> It becomes a great long term investment for companies willing to wait it
> out? Or if it slides down a pigeonhole?
>
>>>What are the requirements for notification of debt?
>>
>>What do you mean? I could guess, but easily guess wrong.
>>
>>
>>
>>
>>
>>
>>
>>
>>
>
>
>

[Galimatias]

jackeroo wrote:
> "Galimatias" <clamour@incoherence.org> wrote in message
> news:6xbz0kpjvaaw4ei.281120042245@127.0.0.1...
>> jackeroo wrote:
>>> "Galimatias" <clamour@incoherence.org> wrote in message
>>> news:3eslnbjimc0a2t2.281120041628@127.0.0.1...
>>>> Peter wrote:
>>>>> On Sun, 28 Nov 2004 09:48:14 +1100, "Galimatias"
>>>>> <clamour@incoherence.org> wrote:
>>>>>
>>>>>
>>>>>> In most jurisdictions, the land registry is supposed to give
>>>>>> notice to the owner that the caveat has been lodged. If that
>>>>>> doesn't happen for some reason, the owner may not find out until
>>>>>> there is a title search for some reason.
>>>>>>
>>>>> Is not the Land Registrar supposed to try and recall the
>>>>> 'duplicate' title from the owner or mortgagee to add the 'caveat'
>>>>> memorial?
>>>>
>>>> The caveat does not in itself involve a qualification or limit on
>>>> the registered title so there is nothing to add to the evidence of
>>>> title. It is only a warning to anyone thinking of dealing with the
>>>> title holder.
>>>>
>>> A bit loose that law, if you do not access title for some years, if
>>> a caveat has been placed to cover a debt that you are unaware of ,
>>> the debt grows with the surety of caveat however long it takes?
>>
>> What do you mean? A caveat is not like a mortgage, which is a
>> security interest in property to ensure payment of a loan and
>> interest. It is simply a warning, a sort of "purchaser beware"
>> sign. In practice, it means that the owner has to take some action
>> to get it removed before a sensible purchaser will enter into a
>> contract to buy the property. If the caveat is simply there in an
>> attempt to protect a creditor, and there is nothing linking the
>> property in any way to the underlying debt, the caveat may be
>> unsupportable in law.
>>
>> What exactly is your situation?
>>
>>> Till when you become aware of the caveat the interest on the debt
>>> would make it large enough to make any collector happy. But just
>>> small enough to not make it worthwhile to defend.
>>
>> The outstanding loan plus interest is not a charge against the
>> property.
>
> Of course. Under a settlement with all creditors one creditor is not
> included without your knowledge.
>
> Said creditor is bought by legal firm which takes out caveat.
>
> Having settled and paid out creditors , re established credit so
> continued trading as normal.
>
> After years of successful trading decide to expand. Intend using a
> property for finance with mortgage. Then find that caveat has been
> attached. Original debt is now 5 to 6 times original amount because
> of interest.
>
> Yes interest and costs raised amount considerably.
>
> Annoying as amount not really worthwhile defending and so pay out.
>
> Time period some 10 years which make orginal details hard to come by.
> Just aware was dealing with firm, thought it had been settled along
> with other creditors.
>
> However firm had gone bankrupt somewhere along line and debts and
> some other interests had been purchased by company that placed caveat.
>
> Interesting method if someone ever owes me money?
>
> Happened in Victoria, so if there is no requirement to either advise
> owner of caveat, or to advise owner of the debt owed.
> It becomes a great long term investment for companies willing to wait
> it out? Or if it slides down a pigeonhole?

The lodging of the caveat in this case was clearly improper, but it goes on
in the real world and it's not new. As your case shows, the creditor lodging
the caveat needed enough legal knowledge to be aware of this legal
technology (which has been around from day-one) but usually sufficiently
removed from a practising lawyer to avoid a complaint of malpractice. It's
a bluffing game, but can be very effective.

If there is no pressure of time, the caveat can be removed by litigation in
the Supreme Court or administrative action before the titles office, because
it should not have been lodged. The threat of such action might result in
withdrawal of the caveat in some cases. If time is a pressure, them's the
breaks.

[Galimatias]

JJMoon wrote:
> jackeroo wrote:
>> "Galimatias" <clamour@incoherence.org> wrote in message
>> news:6xbz0kpjvaaw4ei.281120042245@127.0.0.1...
>>
>>> jackeroo wrote:
>>>
>>>> "Galimatias" <clamour@incoherence.org> wrote in message
>>>> news:3eslnbjimc0a2t2.281120041628@127.0.0.1...
>>>>
>>>>> Peter wrote:
>>>>>
>>>>>> On Sun, 28 Nov 2004 09:48:14 +1100, "Galimatias"
>>>>>> <clamour@incoherence.org> wrote:
>>>>>>
>>>>>>
>>>>>>
>>>>>>> In most jurisdictions, the land registry is supposed to give
>>>>>>> notice to the owner that the caveat has been lodged. If that
>>>>>>> doesn't happen for some reason, the owner may not find out
>>>>>>> until there is a title search for some reason.
>>>>>>>
>>>>>>
>>>>>> Is not the Land Registrar supposed to try and recall the
>>>>>> 'duplicate' title from the owner or mortgagee to add the
>>>>>> 'caveat' memorial?
>>>>>
>>>>> The caveat does not in itself involve a qualification or limit on
>>>>> the registered title so there is nothing to add to the evidence of
>>>>> title. It is only a warning to anyone thinking of dealing with
>>>>> the title holder.
>>>>>
>>>>
>>>> A bit loose that law, if you do not access title for some years,
>>>> if a caveat has been placed to cover a debt that you are unaware
>>>> of , the debt grows with the surety of caveat however long it
>>>> takes?
>>>
>>> What do you mean? A caveat is not like a mortgage, which is a
>>> security interest in property to ensure payment of a loan and
>>> interest. It is
>>
>> simply
>>
>>> a warning, a sort of "purchaser beware" sign. In practice, it
>>> means that the owner has to take some action to get it removed
>>> before a sensible purchaser will enter into a contract to buy the
>>> property. If the caveat
>>
>> is
>>
>>> simply there in an attempt to protect a creditor, and there is
>>> nothing linking the property in any way to the underlying debt, the
>>> caveat may be unsupportable in law.
>>>
>>> What exactly is your situation?
>>>
>>>
>>>> Till when you become aware of the caveat the interest on the debt
>>>> would make it large enough to make any collector happy. But just
>>>> small enough to not make it worthwhile to defend.
>>>
>>> The outstanding loan plus interest is not a charge against the
>>> property.
>>
>>
>> Of course. Under a settlement with all creditors one creditor is not
>> included without your knowledge.
>>
>> Said creditor is bought by legal firm which takes out caveat.
>
> as the other poster said this debt is not a charge against the
> property. A caveat is a warning that a person is claiming an interest
> in the land.
>
> A debt is not an interest in land and therefore can not support the
> registration of a caveat.
> The titles office should not allow a caveat to be registered without
> your consent unless the caveat claimed an interest in the land.

The titles offices in Australia are purely registering bodies. They are not
a form of consumer protection for the registered owners, as the courts have
been telling them for years. If someone lodges a caveat in the standard
form but it is really an invalid caveat, it may well be registered and the
registered owner then has the job of challenging it and getting it removed.
The issue is between the registered owner and the person lodging the caveat.
The titles office should not be a party at that stage.

[Galimatias]

Peter wrote:
> On Sun, 28 Nov 2004 22:35:29 +1100, "Galimatias"
> <clamour@incoherence.org> wrote:
>
>
>>
>> Some of caveats get put on the register because someone thought it
>> might be a good idea to make sure that the land cannot be sold
>> without the caveat being removed. And you don't find out it's there
>> until the titles office tells you so or you want to deal with the
>> property. That latter sometimes means paying a debt of some kind to
>> the person lodging the caveat. In the real world, if it's as simple
>> as that, you may be better off doing the practical thing and paying
>> the debt.
>
> This is presumably because the parties previously agreed that the
> property could be caveated or an agreement touched on the property to
> enable it to be caveated (eg if you agree to purchase a property you
> could caveat it to stop it being sold to someone who made a better
> offer).
>>
>> The last thing most people want is a legal bun-fight in the Supreme
>> Court, or even just an administrative fight before the Registrar
>> (depending on your jurisdiction).
>>
> Agreed - fighting a caveat is not a wise way of resisting paying a
> debt - if the debtor has a legitimate reason for not paying the debt,
> this should be dealt with first, and if upheld, the other party would
> be very strongly advised to cancel the caveat.
>
> A caveat lodged after a mortgage AFAIK does not affect a mortgagee's
> rights. I (in my employment) was asked by a legal executive to accept
> a caveat to secure a debt, and I said yes, if the mortgagees agreed -
> that was the end of that. In this instance the debtor needed to pay
> to get a certificate for the council that his subdivision had been
> reticulated for power.

The OP has now provided some clarification of the situation. The caveat
appears to be an invalid caveat, lodged as a bluff to enforce payment of a
debt plus interest before the propery can be sold. This possibility has
been around for a long time, and is sometimes used in the real world. Very
naughty, perhaps, although the OP's main concern is about the lodgement
happening without the OP's knowledge.

[Peter]

On Mon, 29 Nov 2004 09:32:40 +1100, "Galimatias"
<clamour@incoherence.org> wrote:


>The lodging of the caveat in this case was clearly improper, but it goes on
>in the real world and it's not new. As your case shows, the creditor lodging
>the caveat needed enough legal knowledge to be aware of this legal
>technology (which has been around from day-one) but usually sufficiently
>removed from a practising lawyer to avoid a complaint of malpractice. It's
>a bluffing game, but can be very effective.
>
>If there is no pressure of time, the caveat can be removed by litigation in
>the Supreme Court or administrative action before the titles office, because
>it should not have been lodged. The threat of such action might result in
>withdrawal of the caveat in some cases. If time is a pressure, them's the
>breaks.
>
It begs the question of whether any unilateral (ie without the owner's
and probably mortgagee'sconsent) filing of documents with the land
registrar should be permitted. Perhaps it should be limited to
Government proclamations (eg taking land for a road) or by court
order, thus requiring anyone desiring to unilaterally caveat a title
to go to court first.

In the meantime, judges should give anyone improperly lodging caveats
a very hard time including awarding punitive damages.

[Galimatias]

Peter wrote:
> On Mon, 29 Nov 2004 09:32:40 +1100, "Galimatias"
> <clamour@incoherence.org> wrote:
>
>
>> The lodging of the caveat in this case was clearly improper, but it
>> goes on in the real world and it's not new. As your case shows, the
>> creditor lodging the caveat needed enough legal knowledge to be
>> aware of this legal technology (which has been around from day-one)
>> but usually sufficiently removed from a practising lawyer to avoid a
>> complaint of malpractice. It's a bluffing game, but can be very
>> effective.
>>
>> If there is no pressure of time, the caveat can be removed by
>> litigation in the Supreme Court or administrative action before the
>> titles office, because it should not have been lodged. The threat
>> of such action might result in withdrawal of the caveat in some
>> cases. If time is a pressure, them's the breaks.
>>
> It begs the question of whether any unilateral (ie without the owner's
> and probably mortgagee'sconsent) filing of documents with the land
> registrar should be permitted.

There are problems either way. You can readily foresee situations where the
owner would not consent, but the caveat is a sensible approach to protect
the caveator's rights. A mortgagee won't be concerned. They already have
their security interest registered against the title, and a caveat is not
about priorities of claims in time in any case.

> Perhaps it should be limited to
> Government proclamations (eg taking land for a road) or by court
> order, thus requiring anyone desiring to unilaterally caveat a title
> to go to court first.

It may be simpler to go after the person who systemically uses this
technique improperly and does hurt people. There will be something to hit
them with, perhaps knowingly lodging false documents.

> In the meantime, judges should give anyone improperly lodging caveats
> a very hard time including awarding punitive damages.

Is it that big a problem in the real world? And we don't have punitive
damages. It may simply be part of the never-ending battle between debtors
who try to avoid paying their debts (but have real estate) and creditors who
use unscrupulous tactics.

[JJMoon]

Galimatias wrote:
> JJMoon wrote:
>
>>jackeroo wrote:
>>
>>>"Galimatias" <clamour@incoherence.org> wrote in message
>>>news:6xbz0kpjvaaw4ei.281120042245@127.0.0.1...
>>>
>>>
>>>>jackeroo wrote:
>>>>
>>>>
>>>>>"Galimatias" <clamour@incoherence.org> wrote in message
>>>>>news:3eslnbjimc0a2t2.281120041628@127.0.0.1...
>>>>>
>>>>>
>>>>>>Peter wrote:
>>>>>>
>>>>>>
>>>>>>>On Sun, 28 Nov 2004 09:48:14 +1100, "Galimatias"
>>>>>>><clamour@incoherence.org> wrote:
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>>In most jurisdictions, the land registry is supposed to give
>>>>>>>>notice to the owner that the caveat has been lodged. If that
>>>>>>>>doesn't happen for some reason, the owner may not find out
>>>>>>>>until there is a title search for some reason.
>>>>>>>>
>>>>>>>
>>>>>>>Is not the Land Registrar supposed to try and recall the
>>>>>>>'duplicate' title from the owner or mortgagee to add the
>>>>>>>'caveat' memorial?
>>>>>>
>>>>>>The caveat does not in itself involve a qualification or limit on
>>>>>>the registered title so there is nothing to add to the evidence of
>>>>>>title. It is only a warning to anyone thinking of dealing with
>>>>>>the title holder.
>>>>>>
>>>>>
>>>>>A bit loose that law, if you do not access title for some years,
>>>>>if a caveat has been placed to cover a debt that you are unaware
>>>>>of , the debt grows with the surety of caveat however long it
>>>>>takes?
>>>>
>>>>What do you mean? A caveat is not like a mortgage, which is a
>>>>security interest in property to ensure payment of a loan and
>>>>interest. It is
>>>
>>>simply
>>>
>>>
>>>>a warning, a sort of "purchaser beware" sign. In practice, it
>>>>means that the owner has to take some action to get it removed
>>>>before a sensible purchaser will enter into a contract to buy the
>>>>property. If the caveat
>>>
>>>is
>>>
>>>
>>>>simply there in an attempt to protect a creditor, and there is
>>>>nothing linking the property in any way to the underlying debt, the
>>>>caveat may be unsupportable in law.
>>>>
>>>>What exactly is your situation?
>>>>
>>>>
>>>>
>>>>>Till when you become aware of the caveat the interest on the debt
>>>>>would make it large enough to make any collector happy. But just
>>>>>small enough to not make it worthwhile to defend.
>>>>
>>>>The outstanding loan plus interest is not a charge against the
>>>>property.
>>>
>>>
>>>Of course. Under a settlement with all creditors one creditor is not
>>>included without your knowledge.
>>>
>>>Said creditor is bought by legal firm which takes out caveat.
>>
>>as the other poster said this debt is not a charge against the
>>property. A caveat is a warning that a person is claiming an interest
>>in the land.
>>
>>A debt is not an interest in land and therefore can not support the
>>registration of a caveat.
>>The titles office should not allow a caveat to be registered without
>>your consent unless the caveat claimed an interest in the land.
>
>
> The titles offices in Australia are purely registering bodies. They are not
> a form of consumer protection for the registered owners, as the courts have
> been telling them for years. If someone lodges a caveat in the standard
> form but it is really an invalid caveat, it may well be registered and the
> registered owner then has the job of challenging it and getting it removed.
> The issue is between the registered owner and the person lodging the caveat.
> The titles office should not be a party at that stage.
>
If memory serves me well under Vic legislation the caveat lapses 28 days
after another dealing is lodged unless the caveator commences legal
action on the caveat.

Thus if the OP had lodged the mortgage then caveator would have
commenced action within 28 days or fold.

In this case a court wouldnt allow action to be commenced on the caveat
as no interest is claimed in the land. Hence the caveat would lapse.

The Qld legislation is more effective in that a caveat lapses 30 days
after date of first lodgement unless action is commenced. The poster
Peter may consider that this method agrees with his position.

it is also possible that the debt may wll have been statute barred in
that OP said debt was 10 years old.

[Galimatias]

JJMoon wrote:
> Galimatias wrote:
>> JJMoon wrote:
>>
>>> jackeroo wrote:
>>>
>>>> "Galimatias" <clamour@incoherence.org> wrote in message
>>>> news:6xbz0kpjvaaw4ei.281120042245@127.0.0.1...
>>>>
>>>>
>>>>> jackeroo wrote:
>>>>>
>>>>>
>>>>>> "Galimatias" <clamour@incoherence.org> wrote in message
>>>>>> news:3eslnbjimc0a2t2.281120041628@127.0.0.1...
>>>>>>
>>>>>>
>>>>>>> Peter wrote:
>>>>>>>
>>>>>>>
>>>>>>>> On Sun, 28 Nov 2004 09:48:14 +1100, "Galimatias"
>>>>>>>> <clamour@incoherence.org> wrote:
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>>> In most jurisdictions, the land registry is supposed to give
>>>>>>>>> notice to the owner that the caveat has been lodged. If that
>>>>>>>>> doesn't happen for some reason, the owner may not find out
>>>>>>>>> until there is a title search for some reason.
>>>>>>>>>
>>>>>>>>
>>>>>>>> Is not the Land Registrar supposed to try and recall the
>>>>>>>> 'duplicate' title from the owner or mortgagee to add the
>>>>>>>> 'caveat' memorial?
>>>>>>>
>>>>>>> The caveat does not in itself involve a qualification or limit
>>>>>>> on the registered title so there is nothing to add to the
>>>>>>> evidence of title. It is only a warning to anyone thinking of
>>>>>>> dealing with the title holder.
>>>>>>>
>>>>>>
>>>>>> A bit loose that law, if you do not access title for some years,
>>>>>> if a caveat has been placed to cover a debt that you are unaware
>>>>>> of , the debt grows with the surety of caveat however long it
>>>>>> takes?
>>>>>
>>>>> What do you mean? A caveat is not like a mortgage, which is a
>>>>> security interest in property to ensure payment of a loan and
>>>>> interest. It is
>>>>
>>>> simply
>>>>
>>>>
>>>>> a warning, a sort of "purchaser beware" sign. In practice, it
>>>>> means that the owner has to take some action to get it removed
>>>>> before a sensible purchaser will enter into a contract to buy the
>>>>> property. If the caveat
>>>>
>>>> is
>>>>
>>>>
>>>>> simply there in an attempt to protect a creditor, and there is
>>>>> nothing linking the property in any way to the underlying debt,
>>>>> the caveat may be unsupportable in law.
>>>>>
>>>>> What exactly is your situation?
>>>>>
>>>>>
>>>>>
>>>>>> Till when you become aware of the caveat the interest on the debt
>>>>>> would make it large enough to make any collector happy. But just
>>>>>> small enough to not make it worthwhile to defend.
>>>>>
>>>>> The outstanding loan plus interest is not a charge against the
>>>>> property.
>>>>
>>>>
>>>> Of course. Under a settlement with all creditors one creditor is
>>>> not included without your knowledge.
>>>>
>>>> Said creditor is bought by legal firm which takes out caveat.
>>>
>>> as the other poster said this debt is not a charge against the
>>> property. A caveat is a warning that a person is claiming an
>>> interest in the land.
>>>
>>> A debt is not an interest in land and therefore can not support the
>>> registration of a caveat.
>>> The titles office should not allow a caveat to be registered without
>>> your consent unless the caveat claimed an interest in the land.
>>
>>
>> The titles offices in Australia are purely registering bodies. They
>> are not a form of consumer protection for the registered owners, as
>> the courts have been telling them for years. If someone lodges a
>> caveat in the standard form but it is really an invalid caveat, it
>> may well be registered and the registered owner then has the job of
>> challenging it and getting it removed. The issue is between the
>> registered owner and the person lodging the caveat. The titles
>> office should not be a party at that stage.
>>
> If memory serves me well under Vic legislation the caveat lapses 28
> days after another dealing is lodged unless the caveator commences
> legal action on the caveat.

Not quite. The caveat remains effective and lies dormant, but lapses 30
days after the Registrar gives notice of a conflicting dealing having been
lodged for registration. Since a purchaser would be reluctant to be
bothered by a caveat, you won't get to that stage. The pressure is on the
owner to get rid of the caveat first.

> Thus if the OP had lodged the mortgage then caveator would have
> commenced action within 28 days or fold.
>
> In this case a court wouldnt allow action to be commenced on the
> caveat as no interest is claimed in the land. Hence the caveat would
> lapse.
>
> The Qld legislation is more effective in that a caveat lapses 30 days
> after date of first lodgement unless action is commenced. The poster
> Peter may consider that this method agrees with his position.
>
> it is also possible that the debt may wll have been statute barred in
> that OP said debt was 10 years old.