Reader Emily Mills-Bignell recently commented on the article Can you lodge a caveat over the property of someone who owes you money? by Colin Biggers & Paisley dispute resolution lawyer Grazia Zhou, asking whether a caveat can be lodged against a business.
We went back to Ms Zhou to find out the answer:
Q: Can a caveat be lodged on a business?
A: No, a caveat can only be lodged against real property.
Q: Can a caveat be lodged on a property owned by a business, or only one owned by an individual (or individuals)?
A: A caveat can be lodged over property owned by a company or an individual.
However, a caveat can only be lodged if the person lodging the caveat (known as the 'caveator') has a caveatable interest. That is, if the caveat is protecting an interest in the land.
There are certain classes of cases where the courts have recognised that a caveatable interest exists. For example, a purchaser under a contract for the sale of land has a caveatable interest.
Q: What is the general process of lodging a caveat?
A: There is a form that needs to be completed and lodged with Land and Property Information, in order to lodge a caveat.
There are specific rules about filling in a caveat form, and a person should always seek legal advice before doing so.
The person who is intending to lodge the caveat also needs to sign a statutory declaration, declaring that they have a good and valid claim to the property.
In some instances, stamp duty must also be paid on the caveat before it is registered. If duty is not paid, the caveat may be invalid.
Q: What is the success rate?
A: In our experience, if a caveat is lodged correctly and there is a valid claim, a caveat is generally a successful mechanism to achieve payment or any other claimed interest.
Ultimately, the success of a caveat depends on the facts and circumstances of each case.