New South Wales Consolidated Acts

REAL PROPERTY ACT 1900 - SECT 74H

74H Effect of caveat lodged under section 74F

(1) Subject to this section, while a caveat lodged under section 74F remains in force--

(a) the Registrar-General must not, except with the written consent of the caveator--

(i) record in the Register any dealing, or

(ii) grant any possessory application, or

(iii) register any delimitation plan, or

(iv) cancel the recording of any easement, or

(v) extinguish any restrictive covenant,

if it appears to the Registrar-General that the recording of the dealing, the granting of the possessory application, the registration of the delimitation plan, the cancellation of the recording of the easement or the extinguishment of the restrictive covenant is prohibited by the caveat, and

(b) the caveat does not have the effect of prohibiting--

(i) the recording in the Register of a dealing, or

(ii) the granting of a possessory application, or

(iii) the registration of a delimitation plan, or

(iv) the cancellation of the recording of an easement, or

(v) the extinguishment of a restrictive covenant,

except to the extent that the recording of such a dealing, the granting of such an application, the registration of such a plan, the cancellation of the recording of such an easement or the extinguishment of such a restrictive covenant would affect the estate, interest or right claimed in the caveat.

(2) Where a caveat lodged under section 74F purports to protect a subsisting interest within the meaning of section 28A in land described in a qualified folio of the Register, the Registrar-General shall not cancel the caution recorded in that folio.

(3) While a caveat lodged under section 74F prohibits the recording in the Register of a dealing relating to land described in a limited folio of the Register, the Registrar-General shall not register a delimitation plan which relates to that land.

(4) Where, at the time when a caveat is lodged under section 74F to protect a particular legal or equitable estate or interest in land, a dealing which relates to the same land has been lodged for recording in the Register and is in registrable form, the caveat does not prohibit the recording in the Register of that dealing.

(5) Except in so far as it otherwise specifies, a caveat lodged under section 74F to protect a particular legal or equitable estate or interest in land, or a particular right arising out of a restrictive covenant, does not prohibit the Registrar-General from recording in the Register with respect to the same land--

(a) an application made under section 93 by an executor, administrator or trustee in respect of the estate or interest of a deceased registered proprietor,

(b) an application under section 12 of the Trustee Act 1925 or an order of a court or dealing which, in the opinion of the Registrar-General, effects or evidences a replacement of existing trustees or the appointment of new or additional trustees,

(c) an application under section 101,

(d) a recording under section 46C,

(e) a resumption application within the meaning of Part 5A,

(f) a writ or the cancellation of the recording of a writ in accordance with section 105D,

(g) in relation to a mortgage, charge or covenant charge recorded or lodged in registrable form before the lodgment of the caveat--a dealing effected by the mortgagee, chargee or covenant chargee in the exercise of a power of sale or other power or a right conferred by the mortgage, charge or covenant charge or by or under law,

(h) in relation to a lease recorded or lodged in registrable form before the lodgment of the caveat--a dealing effected by the lessee pursuant to a right conferred by the lease or by or under law,

(i) in relation to a mortgage, charge, covenant charge or lease to the recording of which the caveator has consented or in respect of the recording of which the caveat has lapsed--a dealing effected by the mortgagee, chargee, covenant chargee or lessee, including a dealing effected in the exercise of a power of sale or other power or right conferred by the mortgage, charge, covenant charge or lease or by or under law,

(j) a vesting or dealing effected in accordance with--

(i) an order of a court, or

(ii) a provision of an enactment of this State or the Commonwealth,

being an order or enactment which, expressly or by implication, requires or permits a recording to be made in the Register, notwithstanding that the caveat has not ceased to have effect,

(k) except where the caveator claims to be entitled to a subsisting interest within the meaning of section 28A--the cancellation of a caution,

(l) a change in, or a correction to, the name of a proprietor,

(m) easements, profits à prendre, restrictions on the use of land or positive covenants created by section 88B (3) of the Conveyancing Act 1919 ,

(m1) an easement created by a dealing if the caveat is noted on the folio for the land benefited by the easement,

(m2) a positive covenant created pursuant to section 88BA of the Conveyancing Act 1919 for maintenance or repair, or maintenance and repair, of land that is the site of an easement or other land that is subject to the burden of the easement (or both),

(n) an order, memorandum or other instrument pursuant to section 88D, 88E, 89 or 98 of the Conveyancing Act 1919 ,

(o) a dealing varying, releasing or cancelling an easement, the abandonment of an easement or the effect of an instrument under section 88B of the Conveyancing Act 1919 releasing an easement, if the caveat is noted on the folio for the land burdened by the easement,

(p) a dealing releasing or varying a covenant referred to in paragraph (m2),

(q) a notation or an application for notation of the existence of a cross-easement for party walls created by the operation of section 88BB or 181B of the Conveyancing Act 1919 ,

(r) a dealing releasing, extinguishing or varying a restriction on the use of land,

(s) a change in the address of a body corporate,

(t) an application under section 74I (1) or (2), 74J (1) or 74JA (2) for the preparation of a lapsing notice,

(u) an application for the issue of--

(i) a consolidated folio of the Register, or

(ii) separate folios of the Register where there is more than one registered proprietor for land or for an estate or interest in land,

(w) an application under section 135B for the determination of a boundary by the Registrar-General,

(x) a dealing by one or more joint tenants the sole purpose of which is to effect a severance of a joint tenancy,

(y) a dealing by a lessor or sub-lessor recording the determination of a lease or sublease if the caveat is not recorded against the lease or sublease that is the subject of the determination, or

(z) a dealing recording the bankruptcy of a registered proprietor.

(6) Where particular land is affected by a caveat lodged under section 74F and a dealing relating to that land is subsequently lodged for recording in the Register, the Registrar-General may record the dealing notwithstanding the existence of the caveat if satisfied that the estate or interest to which the caveator claims to be entitled would, on the dealing being recorded, vest in the caveator.

(7) Whenever a dealing is recorded pursuant to subsection (6), the Registrar-General must record in the Register that the caveat concerned has lapsed.