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April 20, 2015
Removing a Caveat Pursuant to Section 138 of the Transfer of Land Act 1893 (WA) (TLA)

By Kristy Lewis

The registered proprietor of the land in respect of which a caveat is lodged may make an application to Landgate for the removal of the caveat pursuant to section 138B of the TLA.

Further, if a judgment creditor has a Property (Seizure and Sale) Order registered over a judgment debtor’s property, a judgment creditor may also use this procedure to remove the caveat from the judgment debtor’s property.

An application under section 138B of the TLA cannot be lodged at Landgate on the following types of caveats:

1. Caveats lodged under Sections 30, 176 or 223A of the TLA

2. Caveats under any other written law which specifically provides for the lodgement of a caveat

3. lodged by virtue of a Court Order

4. protecting beneficiaries under a will or settlement

5. Caveats lodged by or on behalf, or with the consent of the Minister for Lands

6. Caveats lodged under any Commonwealth Act

7. Caveats lodged by the Registrar of Titles

Removing a Caveat

An application to remove a caveat under section 138 of the TLA is simple and must be made using a Landgate Form AW. It is not necessary to lodge any evidence in support of the application at Landgate.

After the application has been lodged at Landgate, and accepted by Landgate, Landgate will serve the caveator with a notice requiring that the caveator, within 21 days, withdraw the caveat or obtain from the Supreme Court an order extending the operation of the caveat.

If the caveator fails to obtain a Court Order extending the operation of the caveat within the 21 days’ notice period, the caveat will lapse and be removed from the property’s certificate of title.

Once a Caveat has been removed under section 138B of the TLA (by lapsing or being withdrawn) the caveator will not be able to re-lodge a caveat unless the caveator obtains leave of the Court or the consent of the registered proprietor.

However, if the caveator obtains an order from the Supreme Court extending the operation of the caveat, a copy of the order must be served on the Registrar of Titles at Landgate within the 21 days’ notice period.

For More Information

Please contact Kristy Lewis at LBH on klewis@lbhandh.com.au  if you require any advice in relation to removing a caveat pursuant to section 138B of the TLA, or if you have been served with a notice requiring you to obtain an order from the Supreme Court extending the operation of a caveat.