The threshold question in every caveat dispute is whether the caveator had an interest capable of supporting one. Section 82 of the Land Registration Act sets the test.
Section 82 — “a person claiming an estate or interest”
Subject to section 92, a person claiming an estate or interest may, by a caveat lodged in accordance with this Part, forbid:
(a) the registration of instruments affecting that estate or interest; or
(b) the amendment of a certificate of title under section 153.
Note that the section creates two different caveats. A section 82(a) caveat blocks dealings. A section 82(b) caveat blocks an amendment of the description of land under Part XVI — useful where a neighbour is applying to move a boundary on the paper.
Interests that will usually support a caveat
- A purchaser under an executed contract of sale — the classic case, protecting the gap between contract and registration.
- An equitable mortgagee — expressly contemplated by section 91(2)(a)(i).
- A person claiming under an unregistered transfer or an instrument not yet lodged.
- A beneficiary claiming an interest in land held on trust — see trusts and the Register.
- A lessee under an unregistered lease, or the holder of an option to purchase or renew — note that under section 28(3) an option is not protected by occupation alone and must be registered or caveated.
- A person asserting an interest arising from fraud in the registration — while the challenge is brought.
What will not support a caveat
- An unsecured creditor owed money by the proprietor — even a large sum, even with a judgment.
- A contractor who built on the land and has not been paid, with no charge over it.
- A person negotiating to buy, with no executed contract.
- A relative who expects to inherit, before the proprietor has died.
- A person with a grievance about the proprietor unconnected to the land.
- A customary claimant to land that is registered, where the real dispute belongs to the Land Courts.
Section 89(1)(c) gives the Registrar a specific power here: he may cancel a caveat where it is proved to his satisfaction that the nature of the caveator’s estate, interest or claim does not entitle him to forbid the dealing — after at least seven days’ notice to the caveator.
Sections 83 and 84 — scope, form and signature
A caveat may be expressed to operate absolutely, or until after notice of intention to register has been served under section 94; and it may forbid one or more instruments or classes of instruments.
It shall be in the approved form and signed by the person by whom or on whose behalf it is lodged, or by his lawyer or agent.
An absolute caveat blocks everything. A caveat expressed to operate until notice of intention to register has been served gives you warning rather than a block — sometimes the better commercial position, and less exposed to a section 90 damages claim.
Under section 94, all notices relating to a caveat may be served at the address specified in the caveat, or at the office of the lawyer or agent who signed it. Put an address you actually monitor.
Section 85 — it does nothing until accepted
(1) A caveat does not come into force until it is accepted by the Registrar.
(2) It is accepted when the Registrar makes a note to that effect on the caveat.
(3) Notwithstanding acceptance, where the Registrar considers the caveat does not comply with the Act he may raise a requisition.
(4) If the requisition is not complied with within the prescribed period, he may annul his acceptance.
So lodging is not enough. Confirm acceptance, and respond promptly to any requisition — annulment removes your protection retrospectively in practical terms.
Section 86 — what an accepted caveat stops
- While a section 82(a) caveat is in force, the Registrar shall not register an instrument whose registration it forbids — unless the instrument is endorsed with the consent of the caveator, in which case it may be registered.
- While a section 82(b) caveat is in force, the Registrar shall not amend the certificate of title.
The consent route in section 86(2) is often the quickest commercial solution: the caveator endorses consent to the particular dealing, and the caveat continues to protect against everything else.
Section 92 — you get one attempt
Where a caveat lodged by or on behalf of a person has lapsed, or the Court has ordered its removal, that person shall not lodge another caveat on substantially the same grounds.
This is why the first caveat must be got right — the correct interest identified, the approved form used, an address that is monitored, and the three-month lapse diarised.
Before you lodge
- Identify the estate or interest you claim, and the document or transaction that gives it to you. Write it down.
- Ask whether it is an interest in land or merely a claim for money. If the latter, a caveat is the wrong instrument and exposes you to damages under section 90.
- Choose the scope — absolute, or until notice; all instruments, or a class.
- Use the approved form and sign properly.
- Give an address you monitor.
- Confirm acceptance, and diarise three months from acceptance.
- Take advice if the interest is arguable — the Public Solicitor, or a firm from the law firms directory.
Sources
- Land Registration Act (Chapter 191) — ss 28, 33, 82–94, 153; Part VIII
- Raina No.1 Ltd v Elisha [2015] PGNC 158; N6051
- Mudge v Secretary for Lands [1985] PGSC 13; [1985] PNGLR 387
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.