Did you see our blog “Can I lodge a caveat on my ex partner’s property?” That was the first in a series on caveats. To continue the theme, we thought it would be good know exactly who can lodge a caveat.
Not just anyone can lodge a Caveat over a property. They must have an interest in the land. Having been in a marriage or a de facto relationship alone does not give someone an interest in their partner’s land. The question of whether someone has an interest in land is a complex legal one and one which legal advice should be sought on before lodging a caveat over land. The caveat should be prepared by a lawyer so that it is prepared properly and the interest in the land is described correctly.
When determining whether someone has an interest in land we refer to previous cases that have set out the law regarding interests in land. The case of Baumgartner was about a de facto couple and whether the de facto wife had an interest in the de facto husband’s land. The de facto husband had purchased land in his name, had paid the deposit and had borrowed the balance in his sole name. While living together the couple had pooled their financial resources to pay for their household expenses, including payment of mortgage instalments on the property in question.
In this case the court found that the de facto wife had an interest in the de facto husband’s property even though the property was owned solely in the de facto husband’s name. The interest the de facto wife had is known as an equitable interest and is the basis for being able to lodge a caveat over the property in family law matters.
A later case took this area of the law one step further and looked at non-financial contributions. In Parig, the Court had regard to both financial and non-financial contributions of the parties. In this case the de facto wife did not make significant financial contributions to the land however, the Court had substantial regard to the contribution of the de facto wife who was a home maker and caregiver of the children. Accordingly, the domestic contributions of one partner can be regarded as contributing to the acquisition of property by the other partner. However, this will not always be the case.
I question whether these principles extend to a property that is owned outright by the other partner prior to the relationship or in very short relationships with no significant contributions. Generally, this is yet to be fully determined.
Again, it’s important that you are well informed about the complexities of caveats and we recommend that you always seek advice from a lawyer experienced in this field.