Payment disputes

Charge over property

What is a charge over property?

If you are a head contractor and an adjudicated amount (as determined through the adjudication process) owing to you hasn’t been paid in full by the due date, you may be able to request registration of a charge over the property where the work took place (the relevant property).

The charge creates the right for you – if the debt is not paid – to apply to the court to sell the property to recover the debt.

When can a charge over property be used?

As a ‘claimant’ wanting to request registration of a charge over property – you must:

  • be a head contractor
  • be owed an adjudicated amount which has not been paid in full by the due date
  • ensure the person or company who owes you money (the ‘respondent’) or a related entity – is the registered owner of the property where the construction work occurred or related goods and services were supplied
  • have lodged the adjudication certificate as a judgment debt in the relevant court.

How charge over property works

Charge over property - for claimants

How to register the charge over property

You can request a charge over property by lodging ALL the following documents with the Titles Registry and paying the relevant fee:

  • a request to record the charge over the property – using Form 14
  • the adjudication certificate (or certified copy)
  • a statutory declaration stating the:
    • details of the relevant property (lot on plan description)
    • adjudicated amount has not been paid
    • registered owner is a related entity for the respondent (if relevant).

The Titles Registry will duly record your charge against the relevant property.

How long does a charge over property last?

The Titles Registry records your registration for charge over the relevant property. The charge is valid for 24 months and then automatically expires – unless released earlier.

If the adjudicated amount is still not paid you can request an extension of the charge by applying to the relevant court. The extension can only be for an additional 24 months, after which time the charge will expire. If the court grants the extension, you must notify the Titles Registry of the extension – using Form 14 – General Request.

Recovering amount owed if still not paid

If after a charge over property has been registered and you’re still not paid, you can apply to the relevant court for an order to have the property sold.

Before commencing court proceedings you must advise the registered property owner in writing of your intention to seek an order for the property to be sold.

Proceeds from the property sale will be used as follows:

  • to pay for the costs to sell the property
  • to recover your costs in seeking the court order for the sale
  • to pay any registered encumbrances over the property, that is, an outstanding mortgage as well as your charge over property (the unpaid adjudicated amount)
  • the balance to be paid to the registered owner.

Request the charge to be released

As a claimant, you must lodge a request to release a charge over property as soon as possible after any of these events – otherwise you may incur a penalty: 

  • the adjudicated amount has been paid to you by the respondent
  • the adjudication decision for the adjudicated amount is set aside
  • court proceedings for enforcement of the debt have been dismissed
  • the unpaid adjudicated amount has been paid into court as security by the respondent (pending court proceedings).

Remember the charge over the relevant property also automatically expires 24 months from initial registration (this can be extended by up to 48 months if an extension is approved by a court).

To request a charge be released – use Form 14 – Release of Charge.

For full details on how to register, extend or release a charge over property, refer to the Titles Registry’s Land Title Practice Manual.

Charge over property - for registered property owners

When a charge is registered over your property

If you are the registered owner of the property for which a charge has been registered, you can respond by:

  • requesting a release of the charge because you have paid the adjudicated amount or the charge has expired
  • apply to relevant court for the charge to be set aside.

Request the release of the charge

If the claimant has not requested a release of the charge over your property, you can request the release if any of the following occurs:

  • the adjudicated amount has been paid
  • the adjudication decision for the adjudicated amount has been set aside
  • court proceedings for enforcement of the debt have been dismissed
  • the unpaid adjudicated amount has been paid into court as security
  • the charge over the relevant property has expired (24 months from initial registration or up to 48 months if a court has approved an extension).

 

To request the charge over property be released you’ll need to lodge the following documents with the Titles Registry:

  • a request to release the charge over the lot/property – using Form 14
  • a Statutory Declaration which :
    • states the adjudicated amount had been paid or that the charge has expired
    • if the charge expires because it has been 24 months since registration – a search of court records has been conducted to ensure the claimant has not sought an extension.

For full details on how to release the charge over property – including the relevant fee – refer to the Titles Registry’s Land Title Practice Manual.

Apply to have the charge set aside

If you have paid the adjudicated amount or you are not the respondent for the adjudicated amount (or a related entity for the respondent), you may choose to challenge a charge registered over your property by taking the matter to court and having the charge set aside.

Before commencing court proceedings you must advise the claimant in writing of your intention to legally challenge the charge.

If you’re successful you can request the Titles Registry remove the charge over the property. For full details on how to do this – including the relevant fee – refer to the Titles Registry’s Land Title Practice Manual.

How long does a charge over property last?

Once the Titles Registry records a charge over property, it’s valid for 24 months and then automatically expires – unless released earlier.

If you do not pay the claimant the adjudicated amount within 24 months, they can request an extension of the charge by applying to the relevant court. The extension can only be for up to an additional 24 months, after which time the charge will expire.