- Intrigue wrote:I am amazed that someone can put a caveat on someone elses house!
I am wondering now why the small business man who is owed funds from the rich man on hill doesnt put a caveat on his home?
A tenant could do this to the home they rent so that the landlord cannot sell and thus they secure a long term rental opportunity..
hmm.. crazy
Its not that easy. You will need to have an interest in the property to register a caveat. eg you may have helped with the improvements, spousal relationship, provided the deposit etc.
A debt is usually not sufficient grounds.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
I have actually known of someone who quite successfully placed a caveat onto another persons property because of a debt owed. It isn't that hard to do.
Also fairly recently there was a program on TV that reported on some credit card companies who had sold people's properties (without their knowledge) for the small amount owed & overdue on the credit card(s). The first these people knew about it was an eviction letter.
One couple that this happened to was elderly so I am presuming that, to be able to do this, the property had to be unencumbered.
Some people actually sing papers allowing people to lodge a caveat if a bill isn't paid – solicitors and builders often do this. It may also depend on what the debt is for. eg. if you lend X $20,000 and X uses the money as deposit on the property, then you would have an equitable interest in that property.
Re the selling of property, this is not related to a caveat, but the satisying of a court judgment. If someone gets a judgment against someone else then they can proceed to sell their property, including real property, if they don't pay up. Even if the property has a mortgage over it it could be sold and the mortgage paid out, then the debt satisfied.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
It is quite easy to put a caveat on someone's property. I don't think that you need to have an equitable interest in the property. I have placed caveats on someone's property (with their consent) because I loaned them some money.
Please don't consider this as legal advice but I think the way it works is that once a caveat is placed on a property, the owner of the property can issue a notice to the person placing the caveat, letting them know that unless they can justify their caveat in a court, then the caveat will be lifted within a certain timeframe (maybe 28 days?).
The caveat is a legal document as is the notice to remove the caveat, which is a proforma court document. The onus is then on the person placing the caveat to justify to the court why the caveat should remain. This is an expensive process and the person placing the caveat would really need to financially justify going to the Supreme Court to ensure the caveat remains.
So while it is very easy to place a caveat, it is also very simple to remove the caveat, unless the caveat is there for very good reasons. At least thats the way I think it works!
Cheers
K
Hi Linar
Thanks for your post. I have heard conflicting info from lawyers regarding the ability to lodge caveats. I am stil convinced that for someone to lodge a caveat on someone else's property that person would need a equitable, or legal, interest in the property. eg. a spouse under family law act, a beneficiary of a trust, unregistered mortgage, agreement to charge the property etc.
in NSW, i think, the relevant legislation is the Real Property Act, 74F
http://www.austlii.edu.au/au/legis/nsw/consol_act/rpa1900178/s74f.htmlWhen you lend someone money and the agree for you to lodge a caveat they are essentially giving you a charge over their property. When you give someone a loan without an agreement for caveat there is no charge given and no interest will generally arise – so there would be no caveatable interest.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
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