A caveat or notice of claim may be lapsed on application by:
- a person who wishes to register an instrument affecting the estate or interest protected by the caveat, or
- the registered owner or a person acting for or on behalf of the registered owner of the estate or interest affected by the caveat.
Once the statutory process has begun, the caveat or notice of claim will lapse by operation of law unless the caveator/claimant takes action to sustain the caveat or notice of claim within the prescribed timeframes.
A notice of claim takes effect as if it were a caveat against dealings and the Land Transfer Act 2017 (LTA) provisions set out below also apply to notices of claim, subject to s42(3) of the Property (Relationships) Act 1976.
Applying to lapse a caveat or notice of claim
A person who wishes to register an instrument affecting the title or other estate protected by the caveat may lodge an application to lapse the caveat under s143(1)(a) LTA using the form found at Schedule 4 of the Caveats and Other Stops on Registration Guideline 2018 (the Caveats Guideline). The application must be:
- submitted with another instrument capable of registration, or
- accompanied by sufficient information to allow the Registrar to determine what the instrument the applicant wishes to register is.
A registered owner or person acting on their behalf may lodge an application to lapse a caveat under s143(1)(b) LTA using Form 36 of the Approved Electronic Forms (for registration by e-dealing) or the form found at Schedule 4 of the Caveats Guideline (for a manual dealing).
The application must be lodged as a dealing (whether by e-dealing via a practitioner or as a manual dealing) and a lodgement fee paid. The lodgement fee is $96 for an e-dealing or $186 for a manual dealing. The instrument code is A143. A letter from the registered owner containing all relevant details is also acceptable as an application, but must still be lodged as a dealing and the relevant fees paid.
For more information about how to lodge a dealing manually, see our Manual dealing guide. Manual dealings cannot be received in our Wellington office and must be sent to either our Hamilton or Christchurch offices for lodgement.
Urgency cannot be granted on an application to lapse caveat as the Registrar has no authority to alter timeframes set in s143(3) LTA.
Notice periods (prescribed timeframes)
Upon receipt of an application to lapse a caveat, we must notify the caveator of the application. This notice will generally be given within 5 working days of receipt of the application and will be given to the address for service of the caveator specified at the time the caveat was lodged, or the updated address if the caveator has notified us of a change of address.
A copy of the application can be provided on request.
First time period
If the address for service given by a caveator is a physical or postal address, we use NZ Post’s CourierPost service to give notice. This is not delivery by post for the purposes of s233 LTA (see section 2(2A) of the Postal Services Act 1988), but physical delivery by NZ Post’s CourierPost service on our behalf.
Notice given in this way is treated as given on the date that CourierPost’s tracking records delivery having taken place.
If the address for service given by the caveator is a fax number or email address, delivery is deemed to have taken place in accordance with s223(1)(b) and (c) LTA.
The caveator has 10 working days from the date notice is given to themselves give notice to the Registrar that the caveator has made an application to the High Court that the caveat not lapse. If notice of the application is not received by the Registrar within this period the caveat lapses by operation of law.
Second time period
From the date that the caveator gives notice to the Registrar of the caveator’s application that the caveat not lapse, the caveator has a further 20 working days to obtain from the High Court one of the following orders to serve upon the Registrar:
- an order that the caveat not lapse, or
- an interim order that the caveat not lapse, or
- an order adjourning the application.
Giving notice to the Registrar
If you receive a notice of application to lapse, you can avoid the caveat or notice of claim lapsing by giving the relevant notice of your court application to us and serving a Court order upon us within the prescribed time periods.
The caveator’s notice of their r application to the High Court for an order to sustain the caveat may be given to the Registrar under s223 LTA:
- via Request in your Landonline workspace - use the Request type: Application to Sustain Caveat (upload a copy of the notice to LINZ), or
- by email to email@example.com (including Application to Sustain Caveat and the dealing number in the subject line will assist us to locate your notice quickly), or
- by post to one of the following offices of Toitū Te Whenua:
Hamilton office: Private Bag 3028, Waikato Mail Centre, Hamilton 3240 or DX GX 10069, Hamilton
Christchurch office: Private Bag 4721, Christchurch 8140
Any subsequent Court order sustaining the caveat should also be served upon the Registrar using the same methods. There is no recommended form - a letter from the caveator setting out sufficient details to identify the caveat and a sealed duplicate copy of the Court Order will suffice. The LTA requires an order to be provided and a judgment or Registrar’s email confirming the presiding Judge’s decision is not sufficient.
Given the short timeframes involved, it is recommended that both notices are given by email or through the Landonline workspace, rather than post.
Caveat lapsing over the Christmas and New Year period
If you receive a notice of lapse of caveat or notice of claim in the lead up to the Christmas and New Year holiday break, you may need to act quickly to avoid the caveat or notice of claim lapsing.
The definition of working day in the LTA excludes days in the period commencing on 25 December and ending on 2 January in the following year. When 1 January falls on a Friday, the following Monday is excluded. When 1 January falls on a Saturday or Sunday, the following Monday and Tuesday will also be excluded.
However, as provided in s35(6) of the Interpretation Act 1999, if the last day of either the 10 working day or 20 working day period falls on a day that is not a working day, the time period extends to the next working day.
We have no authority to alter the timeframes set in s143(3) LTA or extend lapsing dates to account for our offices or Courts being closed on public holidays or for any other reason.
Withdrawing an application to lapse a caveat
Section 143(8) LTA sets out how an application to lapse a caveat can be withdrawn.
If the caveator has already applied to the High Court for an order that the caveat not lapse, then the application can only be withdrawn with leave of the Court. We will require a copy of the Court’s order confirming leave has been granted before finalising the application as having been withdrawn.
Once an interim order has been granted by the Court and served on us, the application to lapse dealing will be finalised in Landonline and will no longer appear as a pending dealing.
Once the proceedings have been finalised, if there is a final order made to lapse the caveat, a copy of the order should be provided to us in the same way as the interim order and we will update the affected title to remove the caveat. There is no need to lodge this as a Court Order dealing using the ‘CO’ instrument code or pay any registration fee.