WHO CAN PLACE A CAUTION OR CAVEAT
Any person who is claiming a contractual or other right over land
amounting to a defined interest capable of creation by a registrable
instrument, for example a lease, may lodge a caution with the Registrar against
any dealing which is inconsistent with his or her interest. Entry of a
transaction, with respect to such land, may not then be made unless the
cautioner has received notice that the same has to be done. Lodging of a caveat or caution without reasonable cause can lead
to a remedy in damages.
HOW
TO PLACE A CAUTION
A caution is registered by a person who has an interest on a certain
parcel of land to prevent any other person from dealing with the land in a way
that prejudices the said interest. The effect of a caution is to forbid, to a
certain extent, the registration of dealings and the making of entries in the
register relating to the land without the cautioner’s consent or until the
caution has been withdrawn by;
The cautioner or;
Removed by order of the Court or;
The Registrar.
The registrar then gives notice in writing of a caution to the
proprietor whose land, lease or charge is affected. So long as the caution
remains registered, no disposition which is inconsistent with it shall be
registered, except with the consent of the cautioner or by order of the court.
Section
71(1) of the Land Registration Act outlines the
qualifications of a lodger. However, this is not an absolute right and the
Registrar pursuant to Section 71 (4) of
the Land Registration Act may reject a caution that is unnecessary or whose
purpose can be effected by the registration of an instrument.
REGISTRATION
PROCESS OF A CAUTION/CAVEAT
One
requires the following documents:
The prescribed form (Form R.L. 22)
An affidavit explaining the interest the cautioner has in the land
A copy of the title (or the title number)
The prescribed fees
It is important to note that no notice is required to be given to the
proprietor of the land before one lodges a caution. The documents are filed
with the Registrar of Lands who then gives notice, in writing, of the caution
to the proprietor whose land, lease or charge is affected by the caution.
WITHDRAWAL
AND REMOVAL OF CAUTION
A caution can be removed by the person lodging the same, or by order of
the court, or subject to Section 73 (2) of the LRA, by order of the Registrar,
if such person fails to remove it after being served with a notice to do so by
the Registrar.
According to Subsection 2 the registrar may, on the application of
another person interested, serve notice on the cautioner warning him that his
caution will be removed at the expiration of the time stated in the notice. If
at the expiration of the time stated the cautioner has not objected, the
registrar may remove the caution.
However, if the cautioner objects to the removal of the caution, they
shall notify the Registrar, in writing, of the objection within the time
specified in the notice, and the Registrar shall, after giving the parties an
opportunity of being heard, make such order as the Registrar considers fit, and
may in the order provide for the payment of costs.
EFFECTS
OF LODGING A CAUTION OR CAVEAT WITHOUT CAUSE
Any person who lodges or maintains a caution wrongfully and without
reasonable cause shall be liable, in an action for damages at the suit of any
person who has sustained damage and to pay compensation to such person
This is because placing a wrongful caution that may lead a registered
owner losing prospective clients would attract high damages and compensation.
Cautions or caveats are temporary restraints that are lodged with the Registrar
of Lands by people forbidding the transactions. Cautioners must prove that they
are entitled to interests in the disputed property whose transfer they seek to
forbid.
Section 75 of the LRA states that ‘Any person who lodges or
maintains a caution wrongfully and without reasonable cause shall be liable, in
an action for damages at the suit of any person who has sustained damage, to
pay compensation to such person.’
