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To caveat or not to caveat?

Caveats 1When a relationship breaks down the parties often lose trust and faith in each other. If the property the parties lived in is owned in one of the parties names solely (Party A), the other party (Party B) needs to be aware that Party A may try and do something with the property, such as to sell it or refinance it without the other party's consent. In this situation Party B should consider whether to lodge a caveat over Party A's property.

We're going to run a series of blog postings on this topic and this series will explore the pros and cons of taking that approach.

A caveat is a way that an interested party can record their interest in a property on the certificate of title. The certificate of title is the document that records important information about the property such as ownership and any mortgages etc.

The most common circumstance for lodging a caveat on a property is where the parties have been in a de facto relationship or married yet the property is owned in only one party's name. This means that when they separate Party A can deal with the property in any way they like such as:

  • Selling the property (for example to a friend or acquaintance at less than it is worth.)
  • Borrowing against the property, referred to as "encumbering" the property (such as borrowing money secured against the property and thereby reducing the equity in it)

In each of the above examples Party A will get access to money from the property which they could then hide or spend.

If a caveat is registered on the property, Party A will not be able to follow through with any sale as the transfer of the property can not be processed while the caveat is on the title.

When lending money, a lender will want to protect the loan to reduce the risk that they won't be paid back. This process is known as "security" and a mortgage over a property is the preferred form of security for lenders. If you want to borrow money against your property, the lender will check the certificate of title of the property when determining whether to lend money.

In this case, without a caveat, Party B would not be mentioned at all on the certificate of title for the property as it is registered solely in the name of Party A and the lender would have no idea that Party B has an interest in the property. If there is a caveat, the lender would be alerted to the interest of Party B straight away and would not be able to register their mortgage on the property. This preserves the equity in the property and means that the lender would be far less likely to lend the money to Party A.

If you'd like more information on caveats or you wish to obtain advice on getting a caveat put on a property to protect your interests, you should contact our Partner in Family Law, Ryan Thomas.

Please note, this Blog is posted in Adelaide, South Australia. It relates to Australian Federal legislation in relation to Family Law matters and South Australian legislation in relation to caveats.

74 Comments :

Geoffrey Adam said...
September 3, 2012 12:49
Thank you for your comment, and I agree that an interest in land is required to be able to lodge a caveat. Please refer to part 2 of my 5 part series on caveats titled “Family Law Property Dispute: Who can lodge a caveat” where I address two of the leading cases that relate to caveats in Family Law matters. Part 2 provides some basic information about how the Courts have determined whether a former party to a relationship has an interest in the other parties land. These matters are complex and require legal advice from an experienced legal practitioner.
September 6, 2012 08:22
Sarafina said...
Hi there
I am a bit confused and hoped you could clarify the part re. Loaning money.
Say I lent money to someone who had a mortgage on their home already with a bank- would I put a caveat on their property/what protection would that give me as a lender to the person?

(This is hypothetical, just trying to get my head around caveats and securities and mortgages- studying property law currently)
Thanks
September 20, 2012 10:12
Sarafina,

Thanks for the question.

If you loan someone money and wish to secure it’s repayment because they own property, they are, as the registered proprietors of the property entitled to provide their property as security.

The issue usually arises where the first registered mortgagee (the bank) will need to provide their consent for the registration of a secondary mortgage – as you guessed – all banks will refuse such a request.

If there is an existing mortgage on the property you can lodge a caveat (recording your interest) without reference to the bank (mortgagee) so it is a far simpler process but you do not gain any priority over other debts the property owner may have.

If you are loaning a large sum then you should demand a full mortgage be registered, if the borrower cannot provide you a mortgage (due to their own bank) you should probably reconsider.
September 24, 2012 03:56
corinna said...
October 24, 2012 08:10
said...
Hi Corinna,

Thank you for your blog comment on our caveat article.

There are many different types of claims that a caveat can protect. Our current series of articles deals with claims arising out of matrimonial or defacto relationships but there can certainly be caveats lodged in relation to certain types of debts.

In South Australia an ordinary person cannot lodge a caveat based solely on the existence of a debt, there must instead be some other caveatable connection between the land and the debt.

In many cases a caveator can force the sale of a property in order to recover what is owed to them. Doing so may involve the caveator(s) bringing Court proceedings against the pensioner to do so.

With 14 caveats it sounds like a very complicated situation that would not be easily resolved, but there could be a few options available to the pensioner to at least minimise the future impact upon her.
October 25, 2012 09:26
Matt Ward said...
Hello, I have built my house and put up a fence between my house and my neighbours property (Vacant block of land which they have for sale) I went through all fo the correct procedures in regards to obtaining quotes, gaining their consent and agreement to go halves. However, They claimed hardship and said that they will pay me within 6 months. I didn;t receive anything and they then agreed to pay in instalments but we still haven't received anything. I am just wondering do I have grounds to lodge a caveat on my neighbours property which is for sale so that if it sells I receive my money for the fence first
October 31, 2012 11:33
Hi Matt,

Thank you for your comment about our Post regarding “To caveat or not to caveat.”

My advice is anyone in this situation should seek advice from a solicitor regarding this, as a caveat must be connected with an interest in the Real property, that is, land. It is not normally applied for the repayment of a debt which is not related to the land. Where a person has lodged a caveat unnecessarily, they may be liable for compensation (s191 J Real Property Act 1886 (SA)).

You may be able to recover the debt through the Magistrates Court (Minor Civil Action Division), under the Fences Act 1975.
October 31, 2012 01:30
Tan said...
Hi, I have been in a defacto relationship for 7 years and we have two properties. 1 family home the other a investment. My partner has changed the locks on the family home so I couldnt gain access to the house where I was actually residing . The mortgages for both properties are in both of our names but the actaul title's are in my ex partners name. Our mortgage broker at the time said not to worry about adding my name to the title as it was costly and I would be proteceted as my name is on the mortgages. Should I lodge a Caveat on both properties to protect my interests.

Kind Regards
December 4, 2012 09:44
Hi Tan
We have read your comment on the question of lodging a caveat. The actions of your former partner are concerning and you should get legal advice as soon as possible to protect your interests. Having your name on the mortgage does add some protection but it does not have the same effect as lodging a caveat. If someone was to look at the title of the properties they would only see your former partners name and would not be aware of your interest in them. You need to get legal advice about this issue as soon as possible.
December 4, 2012 10:14
Kathryn said...
Hi, We have applied to remove a caveat off the property we are selling. She has 21 days to applied to keep it on. On the Caveat it says "The Caveator Claim, That she is beneficially entitles to the estate in fee simple in some (at present) indefinable interest in the land about described by virtue of having contributed of the maintenance, conservation, or improvement of said land" what does this actually mean please? she never lived at the house nor paid any money towards the house.
December 4, 2012 04:05
Hi Kathryn
Thanks for taking the time to comment on our blog. The wording you have referred to is very common wording for a caveat in family law cases as well as other types of claim. We would need to find out more information about the situation to be able to advise on the likelihood of any claim being successful. We are happy to provide you with advice should you require. We offer a first free interview to meet with you to discuss your enquiry. Regards, Ryan Thomas
December 5, 2012 01:20
grant said...
Hi Ryan, is a caveatable interest to be found in the beneficaries of public land. Council is looking to sell off foreshore land where we keep over 50 of our dinghys. We have not been consulted or an alternative solution proposed. Cheers
January 5, 2013 06:04
Hi grant,thanks for taking the time to read and comment on my article. That question, however, is outside the scope of the blog, which relates to family law matters. In order to give advice on your question it would be best to speak with one of our property lawyers to find out more information. You can contact our Adelaide head office on 08 8238 6666 to discuss further whether we are able to be of assistance. Regards, Ryan
January 6, 2013 12:47
Ian said...
Firstly thank you for the interesting and informative article/blog.
We are wanting to loan our daughter and son-in-law some money to upgrade their small house with a growing family to a family house that will accommodate them comfortably. We would like to ensure that in the event of any possible future separation we have a call on the loan......would a caveat be the most suitable approach?
The reality is we are happy to "gift" the loan as long as they are together so we are not looking for a repayable loan i.e. monthly repayments just the money loaned repaid in the event of separation.
We realise that we would rank second behind a bank first mortgage which is no problem as our daughter and son in law would have a reasonable amount of equity from their first house to put into the purchase.
Seems a caveat would provide protection if required in what we hope is the unlikely event of a separation?
What would be required to set such a caveat up? What typically would be the legal costs preparing a document and would there be any stamping duties or other cost associated with setting the instrument up?
Thanking you in advance.
Regards,
Ian
January 8, 2013 05:16
Hi Ian. Caveats have a wide ranging ability to assist in situations such as yours. This blog article was originally designed to address caveat options in Family Law matters. Your inquiry is more a commercial inquiry but nonetheless a good question. Financial matters are inherently risky and even more so when family members are involved. An important point to remember when attempting to secure monies in the form of caveats, is, where possible, to ensure that there is sufficient equity in the caveated property to protect your financial position. Whilst a caveat may act as a hindrance in the ultimate sale of a property, if there is insufficient equity in the property to protect your position, other methods of security need to be considered.
January 9, 2013 05:46
olivia said...
Hi , I have a 30% share in a mortgage with my partner and am on the title as well with my partner. We separated a couple of months ago however I'm still residing in the house. He has refused to come to a suitable and fair settlement. He has threatened to sell the house and has commenced getting valuations on the property. Should I get a caveat on the property to stop him from selling or is this unnecessary as I am part owner of the property and will not give my consent to any sale without settlement.

thank you
January 11, 2013 03:45
Dawn said...
I am in a same sex defacto relationship. If I have an established title and mortgage in my name, am I able to add my partner to the title? Is this expensive to do? Or is it just as effective for her to submit a caveat staking her right to an interest in the property (she would be paying a percentage of the mortgage). What is the benefit for her name to be on the deed?
Cheers!
January 12, 2013 12:39
Eva said...
Hi I would like to ask whether a caveat would serve to stop a mortgagee (a bank) from lending money to the caveator's husband who is addicted to gambling. Both the caveator and her husband signed their names for the mortgage but the husband kept borrowing from the mortgagee whenever their payments are in front.
January 14, 2013 10:20
Hi Olivia, given the issues you have raised we recommend that you obtain legal advice about your situation. More information is required to provide you with advice about whether to lodge a Caveat or not, but there are some situations when a caveat should be lodged even when you are registered on the title.
January 15, 2013 08:44
Hi Dawn, In response to your comment on our blog regarding caveats, lodging a caveat over a property and transferring part of the property into your de facto’s name are two very different steps. There is also the issue of claims under the Family Law Act 1975 in respect of that property. If you would like legal advice on the issue please don't hesitate to contact our Adelaide office on 08 8238 6666 and ask to speak with someone in Family Law.
January 15, 2013 10:27
Hi Eva, in response to your comment on our blog regarding caveats, this is a complicated area of the law. A caveat could have some benefit, but with proper legal advice we would be able to address the situation properly to take further measures to prevent monies being wrongfully withdrawn from the mortgage. If you would like legal advice on the matter please get in touch with me; 08 8238 6666, Regards, Ryan
January 15, 2013 10:29
Anthony Zammit said...
Hi, I have a friend (don't you like these ones) that has a property and the children (2) want to subdivide the property into two portions to build a town house on the rear portion. The mother is worried about future partners wanting to sell or distribute the property assets for their gain.
Is there such a process where by the Mother sells the rear portion of land once sub divided, to her children for the value of the land but does not want any forward funds only to have a caveat or such that if for any reason the children sell their property then the Mother can claim first right for payment of the original stated cost of the land.?? Thanks Anthony
January 16, 2013 07:51
jackie said...
I am asking this question on behalf of my partner He is divorced and has been seperated for 8 years. his ex wife hasnt made any claim for settlement with in the time but put a caveat on the property.. what does this mean? and how can he remove the caveat they have no children.
January 17, 2013 11:34
Hi Jackie
That raises issues of time limits for bringing an application and extensions of time, both of which are complex issues. We can advise on whether he should apply to have the caveat removed but need more information in order to do so. We offer a First Free Interview to meet with you and discuss the matter further. If you would like to take up that opportunity please advise and we will contact you to make a time. Regards, Ryan
January 17, 2013 04:39
In response to Anthony
Thanks for your post.

There are a few different ways that the mother could be protected, and there are stamp duty and taxation considerations which ought to be considered, in addition to the issue of what is best to protect those involved and issues of convenience and cost.

One fairly simple method could be a “vendor finance” style arrangement where the purchase price is secured by a loan & mortgage in favour of the mother. This would ideally be tied in with an agreement relating to the development and subdivision.

It would mean that the children continue to owe your friend the amount of the purchase price and it might then be treated in any Family Law proceedings as a debt that must be repaid. Whether that approach would work appropriately for your friend would vary on her circumstances and so we can’t give any advice on that from this distance.

Even if it is appropriate it won’t be perfect, as the arrangement could still be considered as part of Family Law proceedings. Also, upon the death of your friend it may well be that her children inherit the debt, and other assets, which would then be available in any property settlement application with their partners.

If your friend does need any advice, then please do not hesitate to contact us.

January 17, 2013 04:59
Amanda said...
I've placed a caveat on the house as it's only in my ex's name and he's selling it, as I'm entitled to a payout can a cheque be written to me by the buyer and then I will lift the caveat?
February 1, 2013 11:39
Richard said...
I am a director of a building company which has shares in another building company. I am not a director of this second company. Long story short, company no.2 used an account I am a guarantee to and defaulted on payment. As this has resulted in a caveat on my properties. Is it possible to complete the section 32 on a property and sign before the caveat is lifted, with the intention that it will be removed before settlement.
Regards,
Richard.
February 4, 2013 12:29
Hi Amanda
The situation you have described does not cover the overarching issue which is the finalisation of the property settlement. Property settlement is the term we use for the division of assets, liabilities and financial resources following separation. I assume from your email that you were either married or in a de facto relationship. Any agreement about your property settlement should be formalised, rather than left as an informal agreement as you have described. This is a matter you will need to get legal advice on, so please do not hesitate to give us a call to make a time for a first free interview.
Regards, Ryan
February 5, 2013 10:09
In response to Richard's comment, from your reference to a Section 32 statement it sounds like the property is in Victoria. We have a similar disclosure document in South Australia, but as the laws are different we’re unable to give you any specific advice on the subject. If you’d like we could refer you to one of our affiliated law firms in Victoria. For a referral, please call us on 8238 6666.
Regards, Travis
February 6, 2013 08:38
Greg said...
Hi, I'm looking at buying at auction. The property is a deceased estate, and the kids have taken out a joint caveat, probably they are fighting, and dont trust each other. The caveat is still listed on the section 32 title search.

Can the vendor (ie the exectuor) still sign the contract for sale at the conclusion of the auction with the caveat still in place?
February 14, 2013 10:37
brett said...
We loaned our to be daughter in law a deposit for a property,My son and this female have now split up,We have a caveat on the property,Can we force the sale of the property to recover our money?regards brett
February 18, 2013 08:33
Hi Greg,

That’s a difficult question really and it very much depends on the circumstances – both as to the factual background of the dispute and any arrangements that have been put in place with the executor.

From your query, in particular your reference to S32, it looks like the property is not in SA, so we would not be able to advise you, but we could refer you on if you like.
Regards, Travis

February 19, 2013 08:44
Kaye said...
My partner had an agreement with his wife three years ago to pay $25,000 to her after separation although court orders were signed for $35,000 as a commercial agreement. The commercial agreement was done as she couldn't afford to go to court and he was told by the Court that this was the amount that would get the orders through court without any additional cost to either of them (although a personal agreement between them was for $25,000). She has now come back after two years since payment was made, demanding the $10,000 and saying she would put a caveat on his property if he doesn't pay the additional $10,000. He doesn't have the funds or this, and has provided her with all the documentation agreeing to the $25,000. The property has always been only in his name, can she do this?
February 19, 2013 09:28
Andersons Solicitors (author) said...
HI Brett
This issue often arises in family situations. The treatment of that loan by the Court can vary depending on the circumstances of the loan. We will need to meet with you or speak to you to find out more information about the matter. We can then advise you about the matter. If you would like to make a time for an appointment please advise. Regards, Ryan
February 20, 2013 05:24
Hi Kaye, There are two issues here, whether the $10,000 is payable by your partner and whether there is a legal right to lodge a Caveat on the property. It is highly unusual for a matter to proceed with two agreements as you have suggested. We would need to meet with you or speak to you to find out more information about the matter. We could then advise you about the matter. If you would like to make a time for an appointment please advise.
February 20, 2013 05:27
Lisa said...
Hi

If the property is under one persons name in a defacto relationship and no caveat has been out on, is the owner able to sell the property? Will the ex defacto get any ownership of the property
February 21, 2013 08:35
Andersons Solicitors (author) said...
Hi Lisa, if the parties satisfy the criteria to bring a claim under the Family Law Act as a de facto, then one party can bring a claim against the other. If one party has sold the property in the meantime that can complicate matters. It is certainly something that legal advice should be obtained about. If you would like to make a time to discuss the matter further please advise. Regards, Ryan

February 22, 2013 05:58
Dennis said...
We have a purchaser interested in purchasing our property. They have secured a bank loan for 80% of the purchase price and intended to secure the balance by a mortgage on a property oveseas. The oveseas bank will not provide the balance on this property even though the owner is way ahead in his repayments. We are contemplating a vendor finance arrangement for the balance to the purchaser. Is the better security option for us prior to settlement, to place a caveat on our property title or by second mortgage?
Regards, Dennis
February 26, 2013 04:43
Hi Dennis, Thank you for your comment, we will contact you separately to discuss it with you. As a general comment, any vendor finance agreement carries with it risks that you do not face with an ordinary sale, and therefore such an arrangement needs to be considered carefully.
February 27, 2013 12:20
James said...
My wife sold our property without my knowledge. I am not on title and had placed a caveat on the title. Monies from settlement are going to her lawyers trust fund according to our agreement. The % share each of the house is still in dispute with lawyers acting for us. If we do not agree before settlement can the caveat remain to force a settlement.
March 2, 2013 11:04
Andersons Solicitors (author) said...
Hi James. We note you already have a lawyer acting for you in this matter. You should seek legal advice from them about this issues.
March 4, 2013 09:38
Trudi said...
Hello, we are about to purchase a block of land in rural victoria. In the paperwork received from our broker was a Caveat application. We have spoken with our real estate agent and to the best of our knowledge there are no issues with the sale of this property. Is a caveat really necessary?? Thank you
March 4, 2013 12:41
Andersons Solicitors (author) said...
Hi Trudi, Our Blog relates to land in South Australia. Unfortunately we can’t assist with a query about land in Victoria. You will need a solicitor in Victoria.
March 4, 2013 01:53
Hi, can someone/anyone take a caveat on a business if moneys owed to staff and is it legal??

However the land or building is owened and managed by another party, that person only owns the lease and the business.

Lionn
Looking forward to your reply
March 4, 2013 10:58
Hi Lionn, in South Australia a mere debt is not enough to justify a caveat, there must be some connection with the land (lease) itself. Having said that, the full understanding of many matters can reveal the basis for a caveat, or at perhaps some other options for recovering monies. Please do not hesitate to give us a call if you want some advice on your query.
March 7, 2013 11:13
Moira said...
Hi My step mother has lodged caveats over some of my father's investments properties (even properties where she is joint owner with him) - how can I get a copy of the caveat for him as he has no knowledge that caveats were lodged. Thanks
March 9, 2013 03:24
isabelle said...
Can someone put a caveat on my car I am trying to sell?
March 9, 2013 05:39
Sylvia said...
Hi just wondering if this would be possible at all.

My partners mum wants to sign the title of her house over to him however this house has a caveat placed on it, can she still sign the title over to him with the caveat still on the house, or must the caveat first be lifted before she can sign the title over to him?
March 12, 2013 01:11
Andersons Solicitors (author) said...
Hi Sylvia, we have just put up a new post "Caveats - a simple guide" (http://www.andersons.com.au/lawtalk/posts/2013/march/caveats-a-simple-guide.aspx) which hopefully addresses your query a little bit.She may be able to sign the title over, but it would not be risk free and it may not be effective in the way that is intended.If you would like us to look into it, then please let me know. Regards, Travis
March 13, 2013 05:23
Hi Isabelle, no they can’t, but if you’ve borrowed money for the car, then there could be a security interest registered against it – which can be quite similar. Regards, Travis
March 13, 2013 05:26
Hi Moira, please see my new blog post here: http://www.andersons.com.au/lawtalk/posts/2013/march/caveats-a-simple-guide.aspx. You could go to the Lands Titles Office, or use their Property Assist website ( here: http://www.propertyassist.sa.gov.au/ ), or ask us to look into it for you. Fees do apply however. If you father is looking for family law advice then we may be able to see him for a free half hour initial appointment. If he would like that, then he should not hesitate to give us a call.

March 13, 2013 05:30
good day, i was married to my ex for 26 years and had 6 children (now adults ), i divorced him 6 years ago and settled for 70,000 when i was entitled to over 2 hundred thousand, i agreed to this amount due to death threats made by him, during the marriage we purchased a property in both names and when i left him he had my name removed without my consent or knowledge. can i lodge a caveat on the property now in the interest of my childrens future beneficiary entitlements and mine.
March 22, 2013 02:14
Paul said...
Hi, I have recently split from a defacto relationship. 5 years ago I bought a house by myself. (My partner didn't want to be part of it) I have made all the re payment & also played off a considerable extra amount. There is no Caveat on my house but im worried she will try to claim part of the house even though she has not put a cent towards it. Should I withdraw all my additional funds? If she does put a Caveate on the property will I still have access to the funds I have payed in advance? Im afraid that she will receive a share of the house she has not contributed a cent towards. Also she has moved out of the property 5 times since buying it, the last time 14 months ago. Would we still be considered defacto?
Regards, Paul
March 24, 2013 07:49
Andersons Solicitors (author) said...
Hi Dennise, I am not able to determine from the information you have provided if a Caveat can be lodged on the property. I think the most pressing issue is to determine whether you have a claim for property settlement. We need to look at how the matter was finalised on the previous occasion and whether you are bound by the terms of it. We offer a first free interview to meet with you and discuss the matter further. Please contact us to make a time to meet for a first free interview. Regards, Ryan.
March 25, 2013 09:36
Andersons Solicitors (author) said...
Hi Paul, Your ex partner may bring a claim against you for a de facto property settlement. We need to meet with you to determine what the size of such a claim may be. There are a number of factors to be taken into account. We offer a first free interview to meet with you and discuss the matter further. Please contact us to make a time to meet for a first free interview. Regards, Ryan

March 25, 2013 09:38
Daniel said...
HI, this may be a little different, but I have a friend who many years ago put his 2 young sons on the title of his home (one who was a minor at the time) with the intention for them to have it when he was gone. He later married again and lives in the home with his wife and 2 younger children and now the older two ( in their 30's) want to try and sell it to get their share. He is in his 70's and as no money ever changed hands in the transfer and they have never contributed a cent to ongoing costs he wants to remove them from the title as he considers them to be greedy and just after money. It was always intended to be shared after he died, not taken out from under him.
April 10, 2013 05:07
Hi Daniel, your friend’s scenario, and similar scenarios like that, always depend upon what has transpired and what can be proven. It sounds like there may well be a caveatable interest, although perhaps not to the extent that your friend might desire - but we would need to look into it to give a proper answer. feel free to have your friend contact us if they want to discuss the matter - 08 8238 6666. Regards Travis
April 11, 2013 10:50
james said...
Hi, I brought a house 4 years ago and used money that was gifted to me by my mother (this was not a loan) the day I brought the house she put a caveat on it and I did not receive information of this until I went to sell it. She has no interest in the house and nothing written down about a loan or giving her any rights to the property. Is there a way to remove this so I can settle the sale?
April 13, 2013 07:34
Hi James, you could apply to the LTO or to the Court to have it removed, but that could easily lead to a legal fight with your mother as to whether or not she intended it to be a loan, even if that isn’t what she told you. The caveat may or may not stay on whilst any such fight occurs, depending upon how you deal with it. We would definitely suggest getting some advice before you apply to remove the caveat.

April 15, 2013 03:41
Jun said...
Hi, would it be possible to lodge a caveat over ex-spouse's property where Family Court has made a consent order that property can only be sold by agreement by both parties of the price & net proceeds to be divided equally?
April 19, 2013 01:53
Andersons Solicitors (author) said...
Hi Jun, if you are wanting to lodge a caveat over the property in these circumstances, it sounds like there are more than likely other issues involved. In order to give specific legal advice we need to more information on the full circumstances. Please feel free to contact us on 8238 6666 if you wish to make an appointment. Regards, Ryan
April 19, 2013 11:19
Bernie said...
My mother died 1999. My dad remarried to a woman with 2 sons. My dad died in 2005. When our farm was divided into equal shares, my step mother inherited our permanent house and the portion where our mother and father are buried. Now she wants to sell her property including our parents graves. Do we put a caveat to protect the graves?
April 20, 2013 11:53
Hi Bernie, whilst you obviously have a familial and emotional interest in the graves, that would not be enough for you to have a claim in law to the land. There would need to be something else, such as in connection with your father’s estate, the subdivision of the farm land or perhaps even the burial itself. It may well be that nothing can be done, but if there are circumstances that you would like some advice on, then by all means give us a call. Regards, Travis
April 22, 2013 03:32
Cynthia said...
My ex husband and I gave our children their inheritance (our property, it was put into their names ) some years ago now. Since then my husband and I have separated ( we had been divorced for a long time but lived in the house as man and wife.) The divorce was insisted on by my ex husband because of something he did and he claimed it was to protect our property. Since we have ceased any relationship my ex husband has insisted I stole the property from him and he has now placed a caveat on the property. Can I place a caveat on the property and what benefit will it have ?
May 23, 2013 08:10
Andersons Solicitors (author) said...
Hi Cynthia, thanks for reading our blog. That is a complicated legal question that you raise and really requires very detailed advice. We can provide advice about this issue and would be happy to offer a First Free Interview. If you would like to make a time to meet please contact me on 8238 6622. Regards Ryan
May 24, 2013 09:42
Ede said...
Hi,
I have a half brother, step brother & step sister, & recently deceased sister.
My father died 20 years ago, & he left everything to my step mother, on the understanding that when she died she would then leave everything to the then (5) children. Soon after she sold the family home & went for a trip around the world. On returning she bought a new residence, (house.)
Now she has died, & I am concerned that she has not kept to the agreement. Is this a suitable scenario to place a caveat on the property, lest it be sold? Thank you
June 3, 2013 12:20
Hi Ede, thank you for your comment. Unfortunately the circumstances you have described would not support a caveat lodged against the property of your step-mother. The more interesting question is whether you (and possibly your other siblings) may have a claim against her estate. That is also a complicated and difficult question to answer without further specific information.Please feel free to contact us if you'd like advice on this. Regards, Greg Welden
June 3, 2013 01:02
Susan said...
A good friend a few years ago handed a $ 250 000 cheque to his solicitor in order to purchase a house for him. The solicitor agreed to handle the purchase but somehow the house in question ended up in my friends son's name. How did this happen I do not know. My friend now is worried ~ and he is an elderly man ~ that his son will sell the house and he will have nowhere to live. I have advised him to put a caveat on the house until the issue of ownership is sorted. Is this good advice?
July 24, 2013 11:05
Hi Susan, it is not possible to give proper advice without knowing more about the situation, unfortunately. On what you have described, your friend has given consideration for the purchase of a property but has not received Title to it. On the face of it, that gives rise to a caveatable interest. Having said that, a caveat is only as good as the “right” which it seeks to secure. The situation you have outlined is fairly unusual and in order to consider whether it is advisable to lodge a caveat would need to take consideration of all issues, otherwise any “pre-emptive” caveat may fail.I would be happy to assist your friend further in this matter. Regards, Felix
July 24, 2013 11:54
Cathy said...
Hi team,
A questions to assist my niece, Her mother died 8 years ago and her mothers insurance etc, was used to pay for the family home. recently her father has remarried, and my niece and nephew are worried that they dont have any interest in the property anymore. Can they lodge a caveat against the property to protect their interest, incase the father dies.
July 29, 2013 04:42
Hi Cathy, it sounds like the insurance etc was provided to the husband (their father) either directly (not via her estate) or via their mother’s estate (and a Will giving everything to her husband). If that’s correct then the money is in the husbands hands and even if he uses that to pay off the mortgage or buy a house etc that is his asset. In other words if he then remarries etc there is nothing the kids can do about it and certainly cannot caveat the house. Unless there is a more complicated Will of their mother or the insurance policies were paid somewhere different for instance half paid to the kids but because they were young it was given to their father to hold for their benefit) then the kids might be able to caveat the house. Regards, Greg.
July 29, 2013 05:11
Alex Taylor said...
Thankyou Andersons. In a rental situation when one has concerns with an unscrupulous landlord reneging on returning a bond, without good reason. Would it be considered fair and reasonable to take out a caveat on the rental property?
Kind regards,
Alex
October 9, 2013 12:18
Andersons Solicitors (author) said...
Hi Alex, you most likely wouldn’t be able to lodge a caveat in those circumstances, but you could take your dispute to the tenancies tribunal. Regards, Travis
October 9, 2013 09:30

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