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Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

We are often asked "what is a caveat?" A caveat is a useful way to record your interest in a property and stop dealings with the property. Anyone dealing with real estate in Victoria should be aware as to how a caveat can be used and the ways for removing a caveat from a Certificate of Title.

What is a caveat?

A caveat is an instrument that can be registered with Land Victoria to temporarily stop any dealings with a property. A caveat can prevent transfers of a property from being registered on the Certificate of Title and therefore stop someone from taking legal ownership of a property. You can find out if there is a caveat on Title by conducting a title search of the property.

There are many situations where caveats may or should be used, including the following:

  • Purchasers of real estate can usually lodge a caveat to ensure that the property is not transferred to someone else prior to their own Transfer of Land instrument being registered at Land Victoria after signing a Contract
  • Note that the Contract of Sale may include special conditions preventing the purchaser from lodging a caveat (e.g. in 'off the plan' sales where the property needs to be subdivided before settlement)
  • Parties to an agreement may include terms to allow a party to secure their interest under the agreement by lodging a caveat over a property (e.g. to secure a charge under a loan agreement)
  • Parties in dispute over a property may lodge a caveat to stop dealings with the property until the dispute is resolved (e.g. by court order under the Family Law Act 1975 or where properties may be subject to trusts)
  • Landowners can lodge a caveat on their own property if their Certificate of Title has been lost or destroyed in order to prevent improper dealings with the property (e.g. fraud).

However, there are some limitations to caveats, including the following:

  • A caveat can only be lodged by a person with proper grounds to claim an interest in the property
  • A caveat will not permanently prevent subsequent dealings with a property. If a subsequent dealing is lodged at Land Victoria, the person who lodged the caveat (called a 'caveator') will be notified by Land Victoria and have 30 days after the notice to commence legal proceedings in the Supreme Court of Victoria to substantiate their interest. The caveat will automatically lapse if no proceedings have been commenced within 30 days, and subsequent dealings can then be registered
  • The timing of lodging a caveat is crucial, as any dealings lodged at Land Victoria before the caveat is lodged will take priority.

How do I lodge a caveat?

Land Victoria provides guides on how to lodge a caveat. However, complex issues may arise in lodging a caveat, including the following:

  • Land Victoria's prescribed form for caveats must be completed correctly in every particular or else the caveat may not be effective (e.g. the land and the caveator must be correctly identified)
  • You may need legal advice as to whether you have proper grounds for claiming an interest in the property, as it is not open for anyone to lodge a caveat on any given property
  • There is a risk that the caveat may be improperly lodged, such as without reasonable cause, and in this case you would be liable under section 118 of the Transfer of Land Act 1958 for any loss caused by the caveat (e.g. stopping others from dealing with the property)
  • There can be practical difficulties in lodging the completed form at Land Victoria in time to prevent an imminent dealing with the property, noting the priority issue above.

Your lawyer can complete the form and sign on your behalf, or you can sign the form yourself. The completed form must be sent to Land Victoria with the prescribed fee.

From November 2015, Land Victoria requires that any person dealing with real estate in Victoria must have their identity formally verified before the dealing is registered. This includes a caveator. Your lawyer can complete the identification requirements for you.

How do I remove a caveat?

There are several ways to remove a caveat, including the following:

  • If a Transfer of Land is lodged with Land Victoria to transfer the property to the caveator, the caveat will automatically lapse so the property can be transferred (provided that the caveator and the transferee are identical)
  • If the caveator does not commence legal proceedings within 30 days of Land Victoria's notice of a subsequent dealing as above, the caveat will automatically lapse so that a subsequent dealing can be registered
  • The caveator or their legal representative can lodge a Withdrawal of Caveat form with Land Victoria with the prescribed fee (note that a purchaser's mortgagee will often require a Withdrawal of Caveat at settlement, especially when the purchaser has placed a caveat and then nominated an alternative transferee)
  • The registered proprietor or another person with an interest in the property can apply to the Registrar of Titles under Section 89A of the Transfer of Land Act 1958 so that a notice will then be served on the caveator requiring them to substantiate the caveat within 30 days or less, failing which the caveat will lapse
  • A person adversely affected by a caveat can apply to the Supreme Court for removal of the caveat under section 90(3) of the Act.

A caveat which lapses or has been removed cannot be renewed by the same person in respect of the same interest. Furthermore, if the caveator loses their grounds for claiming an interest in the property (e.g. on rescission of a Contract of Sale), the caveat will no longer be effective and may be removed.

Many of the complex issues above also apply to withdrawing a caveat. You should engage a lawyer for advice on caveats and to ensure that a caveat is properly removed.

Tips for dealing with caveats

  • Conduct a title search if you intend to deal with real estate so that you can identify any caveats already registered on Title
  • Engage a lawyer for legal advice regarding caveats and to assist with lodging or removing caveats
  • Do not delay lodging your caveat because priority will be given to any dealing with the property which is lodged at Land Victoria before your caveat
  • Beware that a caveat will lapse if proceedings are not commenced by the caveator within 30 days of Land Victoria's notice to them of a subsequent dealing.

How can Sharrock Pitman Legal help?

We are Accredited Property Law Specialists, having extensive experience and expertise in assisting customers with their property matters. If you need advice, please contact us and it would be our pleasure to assist. Call Sharrock Pitman Legal today on 1300 205 506.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

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For further information contact

Andre Ong

Andre is a Principal of Sharrock Pitman Legal.

He heads our Property Law Group and is an Accredited Specialist in Property Law (accredited by the Law Institute of Victoria).  He also deals with Commercial Law. For further information, contact Andre Ong on his direct line (03) 8561 3317.

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Property Law

We are often asked "what is a caveat?" A caveat is a useful way to record your interest in a property and stop dealings with the property. Anyone dealing with real estate in Victoria should be aware as to how a caveat can be used and the ways for removing a caveat from a Certificate of Title.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers'. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is a Principal Lawyer of Sharrock Pitman Legal. He is an Accredited Specialist in Business Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.