FOR registered land in Jamaica, the system of land ownership is supported by an important document called the certificate of title, commonly referred to as “the Title”. The original titles are stored in a particular volume and folio of the Register Book of Titles, which is kept at the Titles Office of the National Land Agency (“NLA”). The registered system of land is underpinned by the notion of the title reflecting the status quo as to the ownership of the land. In other words, one can rely on the title for correct information regarding past and present interests and ownership. However, in reality, there may be a legitimate interest not reflected on the title due to some delay or error. This is where the instrument of a caveat may be utilised by someone whose estate or interest is not registered on the title.

A caveat lodged under section 139 of the Registration of Titles Act is a type of injunction forbidding the registrar of titles from registering “a dealing”, either absolutely or until after notice of the intended dealing is given to the person who has lodged the caveat (“the caveator”). A dealing generally refers to a transaction or activity conducted in relation to property and its ownership. For example, a dealing would contemplate transfers (such as the transfer of property from vendor to purchaser or adding someone’s name on the title as an additional owner); the registration of mortgages; noting the death of a proprietor and an application for a new duplicate title where the title has been lost or stolen. After notice is given to the caveator, they will be given the opportunity to protect their claimed interest in the land by initiating a claim at court to prevent the dealing. It is important to highlight that although a caveat may be noted on the face of the title, the legal interest in the land remains vested in the registered proprietor. Therefore, the effect of the caveat is merely to put a pause on the registered proprietor’s ability to deal with their land until the interest of the caveator is determined.

How to lodge a caveat against the registered proprietor’s property

Before you lodge a caveat, you need to first determine whether you have an acceptable or “caveatable” interest in the property. Examples of persons who could satisfy this pre-requirement include:

• An equitable lessee of the property, ie the lease agreement has been executed by the parties but has not yet registered at NLA nor endorsed on the title;

• An equitable mortgagee of the property, ie the mortgage deed has been executed by the parties but has not yet registered at NLA nor endorsed on the title;

• A beneficiary of the property pursuant to a will or trust deed;

• The personal representative of a deceased person who had an interest in the property at the date of death;

• A beneficial owner of the property that was acquired by adverse possession;

• A purchaser of the property under an executed agreement for sale; and

• A strata corporation, where there has been a strata proprietor who has been delinquent in paying maintenance fees.

To lodge a caveat at NLA, the following must be submitted:

1) The application form;

2) Supporting documentation evidencing your claimed interest in the property, which could include an agreement for sale, mortgage deed, receipt showing payment, a birth certificate or a grant of representation etc;

3) Statutory declaration of the applicant (if required by NLA); and

4) Lodgement fees in the amount of 0.5 per cent of the monetary value of the interest being claimed by the applicant.

If the application succeeds, the caveat will either be endorsed on the face of the original title and/or noted in the caveat register, both stored at NLA. Should any dealing relating to the property be presented to NLA for registration, the registrar is to notify the caveator of the said dealing. Upon receiving notice, the caveator has 14 days to approach the court for an order requiring the registrar to stop the dealing and/or an order recognising the interest of the caveator. Failure to apply to the court within this period can result in the caveat lapsing and the registrar proceeding to register the dealing.

Why You Should Lodge a Caveat

If you believe that you have an interest or estate in land which is not endorsed on the title, it is strongly recommended that you lodge a caveat. By taking the active step of lodging the caveat, you can better protect your interest. The caveat lodged against the land ensures that your interest is recognised by the registrar and requires the registrar to notify you of any intended registration of a dealing with the land which could affect your interest in the property. The lodged caveat can also provide you with peace of mind; you need not worry about the rug being swept from beneath you and your interest instantly being extinguished.

For example, as the purchaser of land, it may be useful to lodge a caveat where the agreement for sale has a long completion period, or where the sale has been completed but the property has not yet been transferred to the new owner. You should also lodge a caveat to put the world on notice of your claimed interest; anyone who requests a copy of the original title and/or search certificate will be able to see the lodged caveat and can request the particulars of the caveat thereafter. Lodging a caveat may also be appropriate in property disputes. The caveat will temporarily preserve the title, preventing any changes of ownership or interest from being made.

It is critical to highlight that without a lodged caveat, the registered proprietor (or any other legally entitled person) will be able to transfer or deal with the property without any obligation or regard to your interests.

Depending on the specific facts of your situation, it may be in your best interest to lodge a caveat to protect your interests. Seeking the advice of an attorney-at-law is strongly recommended to ensure that the subject property is dealt with in a fair and efficient manner.

Stephanie Barnes is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Property & Estates Department. Stephanie may be contacted via stephanie.barnes@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.