In any property related dealing you encounter, it is important to ensure your property interests in that dealing remain protected. Caveats are instruments you can lodge to protect your interests in real property by preventing others from registering against it.
In South Australia, any interest in real property has to be registered for it to be fully recognised and protected by the law. Interests that are not registered will be taken to be secondary to these registered interests. If you hold interests in real property that are not registered, you could lose that interest to someone who registers an interest conflicting to yours. Ultimate priority will be given to those who register their interests.
If you have an interest that is not registered, and you want to protect it, one way for you to do that would be by lodging a caveat. A caveat is essentially a form of statutory injunction preventing anyone else from registering an interest against yours. An easy example of the importance of caveating may be found in mortgages.
If you hold a mortgage over a property, and there is no remaining equity in that property, you will not be able to register your mortgage. The banks and lenders who have already registered mortgages and loans against the property will have a stronger right because their mortgage is registered and yours is not. Registered rights are stronger than unregistered rights because they receive higher priority.
However, by caveating the property using your mortgage, it would prevent anyone else from dealing with property, thus protecting your unregistered mortgage. The proprietor would not even be able to sell the property without you releasing the caveat. That is just one example of how caveats are useful. Caveats can be lodged for a wide variety of interests including:
- a lease;
- an easement; or
- interests in certain trusts.