In my previous blogs on caveats (see links below), I have looked at what they are, when you can put them on and how you can get them off.
A caveat is a relatively cheap way to note your interest in a property because the filing fee is only $155.00 (current as at September 2015) and the fees for preparing it are also relatively small. Generally, the information required to determine whether you have an interest in the land will be obtained as part of the process of determining your property settlement entitlements.
In most cases the owner of the land will negotiate a settlement with the person who lodged caveat (“the caveator”) without applying to remove the caveat. Once a settlement is reached, a withdrawal of caveat is generally exchanged for a settlement cheque. It is therefore much quicker, cheaper and easier to lodge a caveat at first instance and try and settle the matter out of court, than to apply to the court for an injunction to protect your interest.
If the owner does apply to remove the caveat, then the caveator either lets it lapse or makes an application to a Family Law Court for a property settlement and injunction against dealing with the land. I discussed this in more detail in my earlier blog “How to keep a caveat on”. If the matter ends up in court in that way, all that is lost by the caveator is the filing fee of $155 and the small cost to prepare the caveat.
In a Family Law property settlement matter, it is much more difficult and costly to try and track and account for money once it has been paid out to a third party. In the case of a property (the family home for example), if a caveat had been lodged on the property in the first place, the process would be much simpler. Therefore, it is important to consider lodging a caveat over a property if it is not registered in your name and you have an interest in the land.
"... lodging an unjustified caveat, such as where you don’t have an interest in the land, can leave you open to a claim for damages."
Another important thing to note is that lodging an unjustified caveat, such as where you don’t have an interest in the land, can leave you open to a claim for damages, so it is important to get experienced legal advice before attempting these steps.
We’ve got a series of blogs on caveats when working through your Family Law property settlement. For more information:
- Who can lodge a caveat?
- How can I remove a caveat?
- Can I lodge a caveat on my ex partner’s property?
- How do I keep a caveat on my ex partner’s property?
Caveats and Family Law property settlements in general can be complex. Our Family Law team at Andersons strongly recommend you seek experienced legal advice prior to finalising any of your Family Law property settlement.