In an earlier blog post, we discussed the question of whether to caveat or not to caveat. In second blog of our caveat series, we will discuss how to keep a caveat on an ex partner's property.
Have you lodged a caveat on a property?
Once a caveat is lodged at the Land Titles Office and registered on the title of a property, it remains effective until it is withdrawn, removed or otherwise extinguished. Copies of your caveat can be obtained from the Lands Titles Office, all you need is the address of the property. A solicitor or conveyancer can also conduct a search to obtain a copy of the caveat. There are fees for doing this type of search.
Have you received notice of Removal of the Caveat?
If you have a caveat on a property and your ex-partner is trying to have it removed, they can file an application to remove the caveat. After an application to remove a caveat is filed at the Land Titles Office, a notice is sent to the person that lodged the caveat. The notice is sent to the address that you put on the caveat as the address for service of notices. This is often either your home address or your lawyer’s address, so beware if you have moved since the caveat was lodged as you may not get the notice. You then have 21 days from the date that the notice was sent before the caveat is removed forever. It is up to caveator to make an urgent application to the Supreme Court or District Court to have their interest registered or to resolve the issue in some other way, such as an injunction through the Federal Circuit Court of Australia.
Avenues for preventing removal:
- Supreme Court/District Court
It is very expensive to apply to have the caveat maintained with an application to the District Court or Supreme Court and you should consider the following costs:
- filing fee alone is $1,329.00 in the District Court and $2,652.00 in the Supreme Court (figures current as at 1 July 2019).
- legal fees involved in your lawyer making the application to the Court.
If the application is not successful then the party seeking to maintain the caveat will most likely have to pay a portion of the legal costs of the other party, making it even more costly.
- Federal Circuit Court
An alternative is to commence proceedings for either matrimonial or de facto (Family Law) property settlement in the Federal Circuit Court. The Federal Circuit Court has the power to grant an injunction restraining the owner of the land from selling or encumbering the property. This has a similar effect to a caveat. The injunction can also be lodged over the title of the property with the Land Titles Office. The caveat can then be removed from the title with no adverse effect. It is harder for the owner of the property to then remove an injunction as this involves an application to the Court for the injunction to be lifted. There are also legal costs involved in an application to the Federal Circuit Court.
Generally clients will opt to issue proceedings in the Federal Circuit Court as not only does it resolve the issue of the caveat but also the property settlement itself.
Things you should consider when preventing removal of a caveat:
- Costs that may be incurred by you:
It is also important to note that If the Court decides that the caveat was lodged unnecessarily, the you may be required to pay compensation to the other party as well as their own legal costs.
- Further Caveats:
In most cases, you may only ever caveat a property for that particular interest once. If that caveat is removed as a result of a caveator’s failure to prove their interest, they have no further opportunity to caveat the property for the same interest.
So now you have choices to protect your interests in your Family Law property dispute. At Andersons, our Family Law team strongly recommend you seek experienced legal advice before finalising your property settlement.