Caveats in SA - incoming purchaser's interest

[JayneWilliamsAllens]

We normally deal with lodgment of caveats in NSW and are used to the categories of claim interest including 'estate in fee simple' under a 'contract for sale' for incoming purchasers.   We are looking to lodge a caveat in SA and the only claim category in this state in the PEXA platform that might apply to the situation is 'Trust/Settlement'.  When this option is selected the wording that comes up does refer to an estate in fee simple but goes on to state that this is where the incoming caveator has contributed to the acquisition, maintenance etc etc.  Our concern is that this seems to be designed for acquisitions involving matrimonial disputes and our transaction is an arms length commercial purchase of property.  Can you confirm that the intention of the SA Land Registry is that this claim category (Trust/Settlement) is wide enough to cover all incoming purchasers lodging a caveat in SA?

[bspinner]

Hi @JayneWilliamsAllens,

Thank you for your question.

Looking at all the available Claim Categories (shown below for your ease of reference) and their relating Claim Statements, it would appear that Trust/Settlement would be the most appropriate option for a Purchasers Caveat.

One would assume that by paying a deposit the caveatee is contributing to the acquisition of the described land. Note that in SA you can lodge a Priority Notice, which is more common than a Caveat.

A Priority Notice can be lodged through South Australian Integrated Land Information System (SAILIS).

SA Claim Categories & Claim Statements:

1. Charge: An estate or interest as chargee pursuant to an agreement in writing made between the caveator and the caveatee wherein the caveatee agreed to charge his estate and interest in favour of the caveator dated
2. Mortgage: An equitable estate or interest as mortgagee over the whole of the land described pursuant to an agreement (or mortgage) made between the caveator and the caveatee dated
3. Other: An estate or interest as the administrator of the protected estate of the caveatee under the provisions of Section 39(2)(v) of the Guardianship and Administration Act 1993 that the caveatee has an estate or interest as the registered proprietor in fee simple in the whole of the land described
4. Other: An estate or interest as Manager of the caveatee in an estate in fee simple in the whole of the land described under and by virtue of Section 28(2) of the Aged and Infirm Persons’ Property Act 1940
5. Trust/Settlement: To be beneficially entitled to an estate or interest in fee simple (in some indefinable share or shares) in the land described having contributed to the acquisition, maintenance and improvement of the land described
6. Lease: An equitable estate or interest as lessee over the whole of the land pursuant to a memorandum of lease made between the caveator and the caveatee with the following lease term and date
7. Lease: An option to renew an estate or interest as lessee pursuant to a memorandum of lease made between the caveator and the caveatee with the following lease term and date

[JayneWilliamsAllens]

Thanks Bianca.  I agree that 'Trust/Settlement' is the closest option to protect the purchaser's interest.  I note the possibility of lodging a priority notice.  Do you know whether other users in PEXA are relying on this option or are users still relying on paper caveats (or priority notices) in respect of purchaser's interests - I notice from another thread that the SA Land Registry may still widen the category of caveats and perhaps a clearer category of caveat will be added in the future?  It still feels risky (in terms of the caveat being upheld if challenged) to rely on this claim statement and its references to 'Trust/Settlement' and an 'indefinable share in the property'.  We're surprised that there is not a clear category for purchaser's caveats and updates on any further discussions with the SA Land Registry on the best way to protect a purchaser's interest would be good going forward.  Thanks again.

[Russell · Accepted solution]

South Australia is currently in the process of liaising with PEXA to increase the scope for Caveats and a purchasers caveat is one the caveats that is to be included. In the interim purchasers caveats must be lodged in paper but as you would be aware South Australia also have the option of a Priority Notice to protect a purchasers interest.