The Land Registration Act, 2012 defines caution as a notice in the form of a register to the effect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice or a caveat.
Lodging of Cautions
A caution forbidding the registration of dispositions of the land, lease, or charge concerned and the making of entries affecting the land lease or charge may be lodged with the Registrar by
- A person who claims the right, whether contractual or otherwise, to obtain an interest in any land, lease or charge, capable of creation by an instrument registrable under the Land Registration Act, 2012.
- Is entitled to a licence.
- Has presented a bankruptcy petition against the proprietor of any registered land, lease or charge.
A caution may either forbid the registration of dispositions and the making of entries or forbid the registration of dispositions and the making of entries to the extent expressed in the caution.
A person who wishes to register a caution is to lodge an application in Form LRA 67 set out in the Sixth Schedule of the Land Registration (General) Regulations, 2017. The caution is to be registered in the property section of the register.
The Registrar thereafter issues a notice of caution upon receipt of an application for the registration of caution in Form LRA 68 Notice of Caution set out in the Sixth Schedule of the Land Registration (General) Regulations, 2017.
(3) A caution shall be in the prescribed form, and the Registrar may require the cautioner to support the caution by a statutory declaration. (4) The Registrar may reject a caution that is unnecessary or whose purpose can be affected by the registration of an instrument under this Act. (5) Subject to this section, the caution shall be registered in the appropriate register. 72. Notice and effect of caution (1) The Registrar shall give notice, in writing, of caution to the proprietor whose land, lease, or charge is affected by the caution. (2) A disposition that is inconsistent with the caution shall not be registered while the caution is still registered except with the consent of the cautioner or by the order of the court.
Withdrawal of Caution
Cautions may be withdrawn by the cautioner or removed by order of the court or, by order of the Registrar. A person who wishes to withdraw a caution is to apply for the withdrawal of the caution in Form LRA 69 set out in the Sixth Schedule of the Land Registration (General) Regulations, 2017.
The Registrar, on the application of any person interested, may serve notice on the cautioner warning the cautioner that the caution will be removed at the expiration of the time stated in the notice. If a cautioner does not raise any objections at the expiry of the time stated, the Registrar may remove the caution.
However, if the cautioner objects to the removal of the caution, the cautioner shall notify the Registrar, in writing, of the objection within the time specified in the notice, and the Registrar is to give 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. The notice of objection to the removal of a caution is to be in Form LRA 72 Notice of Objection to Removal of a Caution set out in the Sixth Schedule to the Registrar.
It is important to note that after the expiry of thirty days from the date of the registration of a transfer by a chargee in exercise of the chargee’s power of sale under the law relating to land, the Registrar shall remove any caution that purports to prohibit any dealing by the chargee that was registered after the charge by virtue of which the transfer has been effected.
The registration of caution is canceled on the withdrawal or removal of caution and any liability of the cautioner is not be affected by the cancellation.
Removal of Caution
An application for the removal of caution is to be made in Form LRA 70 Application to remove a caution set out in the Sixth Schedule of the Land Registration (General) Regulations, 2017. The Registrar will then issue a notice to remove a caution to the cautioner, in Form LRA 7l Notice of Intention to Remove a Caution set out in the Sixth Schedule.
Second Caution in Respect of the same matter
Section 74 of the Land Registration Act, 2012 empowers the Registrar to refuse to accept a further caution by the same person or anyone on behalf of that person in relation to the same matter as a previous caution.
Wrongful Cautions
Section 75 of the Land Registration Act, 2012 provides that any person who lodges or maintains a caution wrongfully and without reasonable cause is liable, in an action for damages at the suit of any person who has sustained damage, to pay compensation to such person.
REFERENCES
Land Registration Act, 2012
Land Registration (General) Regulations, 2017.