A caveat is a useful tool, functioning as a form of injunction that prevents certain actions from being carried out concerning a piece of land. It plays a crucial role in protecting the interests of an individual who claims to have a stake in the property (a “caveator”), generally ensuring that the Registrar of Titles (the “Registrar”) cannot register transactions that may affect ownership or other interests in the land. This article delves into the concept of caveats, the legal framework surrounding them, and their importance in conveyancing law in Jamaica.

WHAT IS A CAVEAT?

A caveat is a notice that serves as a type of injunction against the Registrar. It works to restrain the registration of any, or certain types of dealings, related to the land in question. A caveat can take the form of an absolute caveat, which completely prevents the registration of any instrument affecting the estate or interest claimed by the caveator, or a qualified caveat that restricts certain transactions as specified in the caveat itself, or which allows dealings with the land subject to the caveat.

Once a caveat has been lodged, the Registrar is prohibited from registering any dealings that affect the land’s ownership unless one of the following occurs:

  1. 1. The caveator consents;
  2. 2. The caveator withdraws the caveat; 
  3. 3. The caveat lapses because it is warned; or
  4. 4. The court orders its removal.

It is crucial to understand that a caveat or caution does not equate to an interest in the land. It grants no proprietary rights to the caveator, but, instead, functions solely as an injunction against the Registrar. This protects the caveator’s alleged claim until a court determines the matter.

WHO CAN LODGE A CAVEAT?

For a person to lodge a caveat, they must claim to have an estate or interest in the land in question. Under Section 139 of the Registration of Titles Act (the “Act”), any beneficiary or other person claiming an estate or interest in land, whether under a lease, mortgage, or an unregistered instrument, or through devolution by law, may lodge a caveat to protect their interest.

Once the Registrar accepts the caveat, it is filed in the caveat registry at the Office of Titles, and a notation is made in the top right corner of the original title. The caveat itself is not considered an instrument under the Act and is not registered on the title—only a notation is made to indicate its existence, and this is why carrying out a caveat search is an important part of due diligence in investigating any title.

ACCEPTABLE INTERESTS FOR CAVEATS

The following are examples of interests that can justify the lodging of a caveat:

  1. 1. Purchaser’s interest: An interest under a sale agreement has not yet been completed.
  2. 2. Beneficial owner: An interest under a will, trust deed, or settlement.
  3. 3. Equitable mortgagee: An interest by virtue of an unregistered mortgage.
  4. 4. Beneficial owner by adverse possession: An interest that may arise from occupying the land for the statutory period required adversely to the registered owner.
  5. 5. Leasehold interest: An interest arising from a lease that is not registered on the title.
  6. 6. Utility easements: Utility companies may have easements over the land for the erection and maintenance of utility services.
  7. 7. Outstanding Strata Maintenance fees: Where a caveat may be lodged to ensure payment of maintenance fees by strata owners, as these are deemed charges on the apartment under the law.

A registered proprietor, whose interest is already expressed on the title, can also lodge a caveat against their own title. This may be necessary in situations such as:

  1. 1. The registered proprietor has lost his/her duplicate certificate of title; 
  2. 2. The registered proprietor has revoked a power of attorney, but is unable to contact the attorney to give notice of the revocation; or
  3. 3. Other instances in which the Registrar sees it fit to allow such a caveat to protect the registered owner.

LODGING A CAVEAT

For the Registrar to accept a caveat, it must meet specific requirements as set out in the Act, which include:

  1. 1. The caveat must be in the prescribed form.
  2. 2. An address for service in the City of Kingston, also known as Downtown, Kingston, must be provided.
  3. 3. The name of the person on whose behalf the caveat is lodged must be included.
  4. 4. The specific estate or interest in the land must be clearly stated.
  5. 5. Documentary evidence of the interest being claimed. 

ROLE OF THE REGISTRAR

The Registrar’s role in the caveat process is limited to ensuring that the statutory requirements are met. Once the caveat fulfils these conditions, the Registrar must accept it and note it on the title. The Registrar does not judge the legitimacy of the caveator’s claim. The caveator need only claim an interest when lodging the caveat, not prove it.

OPTIONS FOR THE REGISTERED OWNER UPON RECEIVING A CAVEAT

The registered proprietor has two main options for addressing a lodged caveat:

  1. 1. Court challenge: The registered owner can file a fixed date claim form and affidavit in support to challenge the caveat in court. If successful, the court will issue an order for its removal.
  2. 2. Warning the caveator: The registered proprietor can request that the caveator be warned, by submitting a letter along with a transaction to be registered. The Registrar will then serve notice on the caveator, giving them the opportunity to justify their claim in court. If the caveator does not respond, the caveat will be removed.

CONCLUSION

Caveats are a valuable tool to provide protection for individuals with claims to property. While useful, they must be used properly, and caveators must be prepared to defend their claims in court, as a caveator lodging a caveat without reasonable cause, is liable in an action for damages at the suit of any person who has sustained damage as a result of same. Understanding how and when to use a caveat is essential for navigating Jamaica’s conveyancing framework effectively. A knowledgeable and experienced attorney-at-law can assist you in advising on, lodging, and removing caveats from a title.