Image supplied.
It’s a common scenario: you’re owed money and your debtor is refusing to pay. Surely the next step is to protect your debt by lodging a caveat over the land they’re sitting on, right? Wrong. The mere existence of a debt is no basis for lodging a caveat. If you lodge a caveat without reasonable cause, then you could end up compensating your debtor for your actions.
A caveat is a form of statutory injunction; a ‘notice to beware’ that flags to the world that someone other than the property owner holds an equitable interest in the land. Where properly lodged and recorded on the property title, a caveat will thwart registration of any other interests, and prevent the property from being transferred or otherwise dealt with until the caveat is removed; it effectively freezes all dealings with that property.
However, before you can properly lodge a caveat, you must have a “caveatable interest”. Whilst there is no comprehensive definition of that term under ACT law, it must always constitute an “interest in the land”. This could be a purchaser protecting their interest pursuant to a sale contract before the purchase is settled, a trustee registering an interest held pursuant to a trust deed, a charge granted over your property as part of a guarantee, or a formal or informal mortgage. The mere existence of a debt will not be sufficient. A debt does not give the creditor any proprietary interest in the land, being merely a contractual right to sue for the return of the money. A debt is not a caveatable interest.
If you register a caveat without a valid caveatable interest, the Land Titles Act 1925 (Act) confirms that you could be liable to pay “just compensation” to the owner. Such compensation could extend to the owner’s legal costs or far more where a sale or lease of the property is lost or delayed.
If you’re considering extending credit or entering a credit arrangement with a customer or client, and want to ensure you have a “caveatable interest”, then make sure you get security over the land at the outset, upfront and in writing. Such security is much more likely to be granted at the time the credit, goods or services are provided, than later on when things go wrong. If you’ve got developing concerns about an existing debtor, ask for additional security before granting further credit. Be proactive and protect yourself early; if you wait until the money runs out, then you could be out of luck.
Mark Love, Legal Director, Business Law 9th Floor, Canberra House, 40 Marcus Clarke Street, Canberra ACT 2601 E: [email protected]