How to Remove a Caveat From Your Alberta Land Title

You check your title, or your lawyer does, and there is a caveat registered against it. It may be a surprise, and it can hold up a sale or a refinancing. The first step is understanding who filed it, what they claim, and what options you have.

This article explains in plain terms what a caveat does under Alberta's Land Titles Act, the two main ways to get one removed, the situations where removal is unlikely, and what happens if a caveat was filed without good reason. The details of your situation matter, so use this as a map and not a substitute for advice.

This article covers the law of Alberta.

Who can file a caveat and what it does

A person who claims to be interested in land that has a certificate of title can file a caveat with the Registrar. The grounds can include a will, a trust deed, an instrument of transfer or an unregistered instrument.

While a caveat stays in force, any instrument registered after it is subject to the caveator's claim. A caveat is registered with the same priority effect as an instrument. A caveat does not by itself prohibit a sale, but a buyer takes the land subject to the caveator's claim. In practice, that is why buyers and lenders usually want caveats dealt with before closing.

Route one: a notice to take proceedings

The first main route is to serve the caveator with the prescribed notice requiring them to take court proceedings. The caveat lapses on application made after 60 days following service of that notice.

The caveator can stop the lapse. It does not occur if the caveator takes proceedings in court by application and a certificate of lis pendens is filed. A judge may also extend the time for the caveator to proceed, for sufficient cause shown, if the application is made before the time expires.

If waiting 60 days is a problem, for example because of a closing date, the court may shorten the 60 days on an ex parte application, meaning an application made without the other side present.

• Confirm who the caveator is and what interest they claim before you act.
• Serve the prescribed notice. The form and process are set out in the Land Titles Procedures Regulation, so confirm the current form before you use it.
• Keep proof of service, because the 60 days run from service.
• After the 60 days, an application is made for the caveat to lapse, unless the caveator has started proceedings and filed a certificate of lis pendens.

Route two: asking the court to make the caveator show cause

The second route is a court application. The applicant or the owner may at any time apply to the court calling on the caveator to show cause why the caveat should not be discharged. Because this can be done at any time, it does not depend on waiting out the 60 days.

How the court decides will depend on the facts of your situation, so it is worth confirming with a lawyer before you file. The court's approach is different where the caveator holds an interest under a written contract for sale and there is no uncured default.

When a caveat is hard or impossible to remove this way

Two situations deserve particular attention.

• Restrictive covenants: the lapse process in s. 138 of the Land Titles Act does not apply to a caveat protecting a restrictive covenant. That kind of caveat may be modified or discharged only by court order under s. 48.
• Written contract for sale: where the caveator holds an interest under a written contract for sale and there is no uncured default, the court shall refuse to remove the caveat unless the case otherwise warrants removal.

If either applies to you, the practical question is usually whether the underlying agreement or covenant can be resolved, not just whether the caveat can be struck.

Compensation for a wrongful caveat

Anyone other than the Registrar who files or continues a caveat without reasonable cause is liable to compensate a person who suffers damage. This can matter if a caveat cost you a sale or financing. Whether a caveat was filed or continued without reasonable cause, and what loss you can show, depends on the facts.

What to do next

• Get a current copy of your title and a copy of the caveat to see who filed it and why.
• Gather any contracts, correspondence or court documents connected to the caveator's claim.
• Check whether the caveat protects a restrictive covenant or arises from a written contract for sale.
• Note any closing or financing deadlines, since they affect whether you ask the court to shorten the time.
• Confirm the current notice form with a lawyer before serving anything.
• Talk to a lawyer before choosing between the notice route and a show cause application.

Frequently asked questions