Caveats

Introduction

Dominica’s Title by Registration Act, Chapter 56:50 is patterned on the Torrens System of land registration and includes provisions for the placing, sustaining and removal of caveats which are themselves also a creature of statute.

Despite these provisions, save for the forms for lodgment and orders of withdrawal and removal of caveats there are no further forms pertaining to caveats contained in the Title by Registration Act.

Caveats function as statutory injunctions. A caveat prevents the transfer of title to a registered interest and its purpose is to keep the title in its present state while disputes or claims concerning the interest in the property are contested. Unlike injunctions however which require an application to the court and the obtaining of an order to take effect, once caveats are lodged, the Registrar immediately notes them on the caveatee’s certificate of title and they automatically prevent inconsistent dealings on title to land[1].

The Eastern Caribbean Civil Procedure Rules 2000 (CPR 2000) provide generally for the initiation of claims, filing notices of applications including for interim relief but contain no provisions specific to caveats.

This article is concerned with the procedure for sustaining caveats and the relationship with the CPR 2000. It will focus on the situation in which a caveat has been placed against registered land and the procedure which is applied to remove it through application to the court. It will consider present practice, the difficulties which arise and suggestions for reform.

Title by Registration Act

Sections 119, 120 and 121 set out the procedure for the removal of caveats. In particular section 119 allows the caveatee to send an order to the Registrar of Titles for removal of the caveat. The Registrar following receipt of this order, must inform the Caveator of its presentation and that at the expiry of 21 days from the date of noting of the order for removal he will remove the caveat unless before the expiry of this period, there is an order from the Judge sustaining the caveat or otherwise allowing for its continuance. 

Further 120 states:

The caveator may at any time and without any notice from the Registrar of the receipt of an order of removal from the caveatee, apply to the Court to sustain the caveat, and to order continuance on the register either until some question of right has been determined between the caveator and the caveatee, or till such time and in such manner as may be ordered by the Court, and the Court, after such notice to the Caveatee or service upon him as may appear sufficient, may proceed to hear the parties or, in the absence of the caveatee if he does not appear, to deal with the case as may appear just’.

While the abovementioned provisions of the Title by Registration Act, stipulate that applications are to be made to the Court, the Title by Registration Act does not set out the procedure nor the forms for making these applications. The practice has been, in respect of section 120, to apply to the Court by way of Fixed Date Claim Form to sustain the caveat while simultaneously or shortly thereafter filing a claim to have the substantive dispute determined by the Court.  The court also has the jurisdiction to maintain the caveat on condition that the caveator commence proceedings to establish the interests claimed. This is the approach which has been taken in some other jurisdictions with the Torrens System[2] (Pacc Offshore Holdings Ltd v. Kensteel (2017) SCHG 175). The caveat application which was brought by originating summons (Fixed Date Claim under the Part 8.1 of CPR 2000) sought an interim order that the caveat remain until the resolution of the main dispute which had been brough in a separate claim at the High Court.

Though not exhaustive some of the interests which may be validly protected by a caveat are:

1. The interest of a mortgagee under a mortgage;
2. The interest of a purchaser under a contract for sale of land including some conditional contracts. Brownie J in Jessica Holdings Pty Ltd v. Anglican Property Trust Diocese of Sydney  (1992) 27 NSWLR 140 referred to the issue of caveatable interests arising from conditional contracts as a vexed question. The judicial attitude has been moving away from the position in Re Bosca Land Pty Ltd’s  caveat [1976]Qd R 119 and the Courts have been taking a less restrictive view of caveatable interests arising from conditional contracts for the sale of land.
3. Interest of the beneficiaries of an express, resulting or constructive trust in respect of land;
4. Purchaser’s lien, whether or not specific performance is available. The purchaser’s lien is intended to do justice between the vendor and purchaser involved in a sale of land where the purchaser has made a deposit and or payments to the purchase of the land. While the contract subsists the purchaser has a lien for that part of the purchase money which he has paid. When the contract goes off whether or not by reason of his default, and the purchaser is entitled to recover that part of the purchase money, his lien for such money continues to subsist[3].

These are among interests not considered caveatable interests:

1. The interest of a judgment creditor against a judgment debtor in respect of an unsecured money judgment.
2. Interest of a beneficiary under an unadministered estate[4].

Further Considerations

While caveats are similar to injunctions, it would be unwise to consider them to be the same. For example, the provisions of Part 17 of CPR2000 which relate to interim remedies are not really apt to applications relating to caveats. Unlike applications for interim relief which have to be considered by a judge, and which may not be granted, once the caveat is filed, it is almost automatic that the Registrar notes it on the certificate of title and it takes effect. Further, the relationship between the provisions of Part 11 (which relate to applications generally) and the applications to sustain caveats can be considered anomalous.

It is generally acknowledged that there is need for revision of the conveyancing and land registration laws; the regulations relating to caveats included. In the meantime, it would be useful, as has been done in other jurisdictions which apply the Torrens System of land registration to implement guidelines such as Registrar’s Guidelines which can clarify and simplify the process for registration, and applications for sustaining and removal of caveats. The provisions of these guidelines would be consistent with objectives of CPR 2000 including dealing with cases justly and ensuring that parties including pro se litigants are on an equal footing.

_{[1] J&H Just Holdings v. Bank of NSW [1971] 125 CLR 546}

_{[2] https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/-2017-sghc-175-pacc-joffshore-holdings-ltd-v-kensteel-engineering-pte-ltd-pdf.pdf}

_{[3] Bestland Development Property Ltd v. Mannit Udomkunnatum and another [1997] 1 SLR (R) 177.}

_{[4] Commissioner of Stamp Duty v. Livingston (1965) AC 694 Privy Council}