I recently purchased a house (a divorcee sale). The title deeds are in the husbands name. The ex-wife has a caveat on the house and lives in it.
She was advised that settlement was on the 30th June, but now refuses to leave the house.
I have refused to settle unless she moves out as I have bought the house as Vacant Posession.
What are my rights? How do I remove her?
I'd love any help/suggestions you can give me.
I’m no legal eagle and I hope Terry W chimes in on this one (which I’m confident he will) but I’d assume your legal side could issue a notice to complete. If settlement doesn’t occur by the completion date, the vendor has to start paying interest (based on the purchase price of the property).
Cheers
Jamie
Jamie Moore | Pass Go Home Loans Pty Ltd
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The otherside has been issued a notice to complete, however the ex wife lives in the house but her name is not on the title deeds. The husband doesnt live there (his name is on the title deeds only) and he wants to complete, but we cant remove her. The interest part is not the issue, but we want her out and she is refusing to leave. She also has a caveat on the house. (We believe that she wants money from the sale from the ex husband so she can move out), however this is not my problem, but it has become my problem if that makes sense.
It's my understanding that a lodged caveat on a property prevents any dealings for sale of the property without the caveat being removed by the caveator (wife). You might want to get some legal advice on that one.
I think scully is right,. The caveat will prevent settlement from taking place. You lawyer should have advised you on the caveat being in place and an examination of the caveat would have revealed her interest in the property relating to a family law issue.
She is unlikely to remove it unless the husband agrees to give her a share of the proceeds.
Your lawyer should advise you on what to do – wait and hope or pull out.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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I think its too late to pull out as I have already exchanged 5 weeks ago and sold my house in the meantime.
From my understanding there is no funds leftover from the sale as the bank is owed the amount of money that I purchased the property for.
If I settle on the property, which in turn the title deeds go into mine and my husbands name, can I have her removed after settlement as the property is then ours. She cant be classed as a tenant as there is no lease in place.
PS I also have a caveat on the property due to previous issues.
You cannot settle while there is a caveat in place.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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BTW, was your caveat lodged before hers? if so you may have some priority.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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No unfortunately Terry. I lodged mine after hers.
The vendors solicitor failed to lapse the caveat as well.
Does anybody know how long this can go on for? And can I go to the supreme court to have her caveat removed? Is there anybody that is a caveat law speacialist?
This can drag on for a very long time. You are unlikely to be able to settle and should consider rescinding the contract.
The problem is the husband cannot sell the property without the wife's permission as it is her property too.
Was the caveat on the title at the date you signed the contract?
And what state is the property in?
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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OMG I sold my house to buy this house and have had to go and rent as settlement has been delayed. I asked if we can rescind and the solicitors have advised that I cant rescind on the purchase and they cant rescind on the sale.
Yes the caveat was on the title when I signed the contract.
Her name however has never been on the title. Its only the husbands name.
The property is in NSW.
When we went to inspect she was there and she showed us through. She was well aware that the property was on the market and had been for 6 months previous to us inspecting it.
I have purchased 2 other properties prior to this one and we have never had any issues with the caveats being lifted. Its never scared us to purchase a property before just because there was a caveat and weve always been advised by the solicitor.
You should never have exchanged knowing there was a caveat on title as this was bound to happen. Did your solicitor advise you about the caveat and the risks?
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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By not settling on time the vendor has breached the contract. You may be able to terminate the contract on this basis and then sue for damages.
Where there any special conditions in the contract?
I am a soliictor btw.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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yes and said there was no problems.
We dont know why there is a caveat. Ive put a caveat on the place too. It looks like anybody can lodge a caveat these days.
Can the vendors solicitor not lift this caveat? If there is a real interest in the property, she will need to go the supreme court to put a caveat on again and this costs serious money- $20k I think??
Vacant possession – is that classed as special conditions? None other that I know of.
There is always a problem with a caveat as caveats prevent dealings in the property – ie prevent sale.
There is a caveat because the wife is trying to protect her interest. It is her property too even though she is not on title. She has an equitable interest and a right to lodge a caveat. This is under the Family Law Act as well as common law.
I think the Supreme Court will be unable to lift the caveat while there is a family law dispute in place . The vendors solicitor can't simply lift it.
The best way to move forward is to try to get the wife to talk to the husband and get her to willingly lift it. But you can't get involved with this, but put pressure on the husband's solicitor to do so.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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So Terry, lets say she wants $200k but the bank is owed $1040k and the purchase price was $1060k, there is nt much money left over after the bank has been paid the debt. Does this mean
1/ she is also responsible for that debt since she has an equitable interest.Well, she didn't borrow the money so she couldn't be held responsible. But the bank holds a mortgage over the property which would give it first priority.
Sounds like she wants more money than is left over. It could be a case of her being unreasonable or she may be thinking the husband sold the property too cheaply.
You are in a very difficult situation, especially if you are left homeless because you were thinking you could move into the property.
This thing is likely to drag on for a long time. Could me many months or much longer.
You both (you and verdor) should be able to exit the contract by mutual agreement.
You may also be able to terminate the contract for repudiation to due a unreasonable delay in completion. You are ready willing and able to settle, the other side is not able to.
Or you can wait it out.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
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thanks Terry. I ve had to find a rental property in the meantime. I cant believe they bought us into this mess.
We paid well above the price they expected.
They are well behind in the repayments too.
I dont know who is going to settle this mess and hopefully after the 14 days is up if they havent settled, I will be in a position to decide whether to pull out or not and whether I will still have grounds to sue. I feel so displaced atm.
A property shouldnt be allowed to be put on the market to be sold if there is a caveat.
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