Protect Your Best Interests with a Property Caveat

The demise of a long-term relationship can be one of the most stressful things you will experience. Unsurprisingly, caveatable interest can leave you utterly distressed and grief-stricken. Add your current legal obligations to these swirling emotions, and the complex, yet essential division of your assets can seem an impossible task. Fortunately, the legal advice of the experts at KMB Legal is ready to help you with all property land act and law matters.

As mentioned previously, your name might not be on the property title. In this case, you should rectify the situation immediately if you believe your former spouse intends to deal with the property before your property settlement is finalized.

If not, your former spouse is entitled to make decisions about the property without your consent. Fortunately, a legal caveat gives you a voice in the property’s future. It enables you to protect your caveatable interest if your former spouse elects to sell, transfer shares to another party or use the property as equity to obtain a loan agreement.

How exactly does a scheme-approved caveat protect me?

Simply lodge a caveat, a property caveat is a legal notice, addressed to your state or territory's Registrar of Titles. By lodging, this document, the caveator (you) safeguards their caveatable interests in said property. In practical terms, when the caveat is recorded on the property title, its registered owner is forbidden from selling or making other arrangements (i.e. loan agreement, selling, transferring, further encumbering, etc.) with the property, until and unless the caveat is removed.

From the date of lodgment, lodge a caveat remains on the property's title for three months. Throughout this period, you are legally obliged to commence court proceedings and advise the Registrar of Titles that these proceedings are taking place.

If you fail to do so, your caveat will no longer be valid and will lapse. The registered proprietor will then be able to deal with the property without your consent.

What should potential buyers know about a caveat?

In Latin, the word "caveat" literally translates as: "let him beware". As such, when on a property title, it should serve as a red flag to any potential buyer. By conducting a simple title search via the title registry, they will discover that someone else is interested in the property they wish to protect.

How do I know if I have a caveatable interest?

While on the surface it may seem simple, this is quite a complex legal question. Therefore, we strongly advise you to discuss your needs and concerns with the professional standards legislation at KMB Legal.

Firstly, to register a caveat on your property, you must establish a "caveatable interest". And, contrary to popular belief, the proprietary interest is not established by default if you have been married or in a de facto relationship.

However, in family matters like this, you can establish a caveatable interest in the property in other ways. The most common is by demonstrating the "financial and non-financial contributions" you have made to the "acquisition, improvement, and maintenance" of the household throughout the relationship.

During the relationship, you may have contributed by making mortgage payments, for instance. Or, you may have contributed to the property in non-financial ways, or in a reasonable cause. These can include: carrying out housework, undertaking renovations, or making improvements to the property. And, if your name is absent from the title, these contributions will not be reflected within it, however may still give rise to an equitable interest in the property law.

When should I seek legal advice?

When arranging property caveats, we have seen cases in which significant non-financial contributions are sufficient to give rise to caveatable interest. This includes tasks such as caring for your children. As there are substantial risks involved in lodging a caveat, we advise you to seek legal counsel.

At KMB Legal, we will walk you through the entire process. We will advise you on the best course of action to protect your legal rights. If you do have a caveatable interest in your property, our team will prepare all the necessary documentation for you, and ensure you provide your unregistered interest in the property and explained it in detail.

Are there risks in lodging a caveat? If so, what are they?

Registering a caveat is not without risk. For instance, it may be discovered that the person lodging the caveat has no caveatable interest in the property. As a result of the action, the property's legal owner may suffer substantial financial loss. If this is the case, the owner is legally permitted to recoup those losses from the person who initiated the action.

It's also important that you are aware the legal owner can pursue certain legal avenues in response to the caveatable interest. If they do not wish to wait three months for the court proceedings, they are legally entitled to compel you to initiate proceedings within a fortnight. In addition, the owner may also exercise their right to apply to the Supreme Court to remove the caveatable interest.

How can a caveat be removed?

There are various ways a caveatable interests may be removed from a property title. These include:

* It is withdrawn by the purchaser's interest who lodged it;

* If the caveat lapses, due to court proceedings not commencing within the specified timeframe;

* The Supreme Court orders the caveat to be removed, or;

* The Registrar cancels the caveat

Are you currently going through a divorce or separation? If so, professional standards legislation may have concerns over the sale of the property without your consent. However, you can prevent this. To lodge a caveat, simply call or email the skilled KMB Legal team today.