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Caveats on Properties in Family Law

Written by Susan Wild

Susan holds a Bachelor of Laws and a Bachelor of Business. She was admitted to practice in the New South Wales Supreme Court in 2011. Susan practiced in a boutique Family Law firm in Sydney before relocating to Queensland in 2014 to advocate for victims of domestic violence and sexual abuse in the areas of family law, child protection and domestic violence. Susan is knowledgeable in both Queensland and New South Wales jurisdictions. With a primary focus on family law, Susan also has experience in criminal law, civil law, wills and estates and property law.

Relationship breakdowns can be a source of emotional distress and grief.  These feelings can be inflated by the complex, and often unavoidable, exercise of dividing property. You may have an interest in the property you shared with your former partner, however, your name may not be on the property title. There are a number of reasons that a title may not list both partners. One partner may have bought the property prior to the relationship, the property may have been inherited by one party, or for some other reason. If you have an interest in a property that is not registered in your name, you may need to consider lodging a caveat to protect your interest.

My name is not on the title

If you shared a property with your former spouse or partner but your name is not on the title, it is possible that your former partner can make decisions about the property without your consent.

You may have contributed to paying the mortgage on a house or you may have contributed in other financial or non-financial ways during the relationship and this may not be reflected on the property title.

If you are concerned that the person on the title may move to sell the property, transfer a share to someone else or use it as equity for a loan, you can have a caveat recorded on the title.

What is a caveat and how can it protect me?

A caveat is a legal notice made to the Registrar of Titles in whichever state or territory the property is in. By lodging a caveat, the caveator is protecting their interest in the property. In practice, it means that once the caveat has been recorded on the title, the registered owner will not be able to sell or otherwise deal with the property until the caveat is removed.

A caveat remains on the title for three months from its lodgement. During this time, you must commence court proceedings and give notice to the Registrar of Titles of the proceedings. Failure to do so will result in the caveat lapsing. The registered owner may then proceed with the sale of the property or otherwise deal with the property without your consent.

The word caveat means “beware” and a caveat on a property title should serve as a red flag to anyone who is seeking to purchase the property. A title search through the title registry will show that someone else has an interest in the property that they are seeking to protect.

Do I have a caveatable interest?

This is a complex legal question and one best discussed with a legal professional.

Being in a mar­riage or de fac­to rela­tion­ship in itself does not necessarily give you a caveatable interest in the property. However, your financial contributions towards the mortgage or expenditure on the property, such as renovations or maintenance, may give rise to an interest.

There have also been cases where non-financial contributions, such as the provision of childcare, has been found to give rise to a caveatable interest. It is strongly recommended you seek legal advice as there are risks associated with lodging a caveat.

GTC Lawyers can assist you in determining the most appropriate action to protect your legal rights. Should you have a caveatable interest, our team can prepare all documentation on your behalf and ensure the interest in the property is described accurately.

What are the risks?

If you lodge a caveat and you do not have a caveatable interest in the property, you may find yourself liable to pay compensation for any financial loss suffered by the registered owner.

You should also be aware that the owner has some legal avenues they can take in response to the caveat. The owner may not want to wait three months for court proceedings to commence and may seek to compel you to initiate court proceedings within 14 days.

The owner of the property may also make an application to the Supreme Court to have the caveat removed.

Removal of a caveat

There are a number of ways in which a caveat can be removed from a title. These include:

  • the withdrawal of the caveat by the person who lodged it;
  • the lapse of a caveat if court proceedings do not commence within the specified time;
  • by order of the Supreme Court;
  • by cancellation of the caveat by the Registrar.

The team at GTC Lawyers is highly experienced to guide and support you through all family law matters relating to property settlement, separation, divorce and parenting disputes. Our team is skilled in negotiation and dispute resolution processes such as mediation and, if required, will advocate on your behalf in the Family Court until the matter is finalised.

If you require legal advice or representation in a property law matter or in any other legal matter, please contact Go To Court Lawyers.

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