The caveat is there to show there is a dispute. If they are behind in the loan repayments then maybe the bank will take possession of the property and you can enter into negotiations with them.
If you are going to sue then bear in mind that the husband may not have any assets left to pay you even if you win.
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
Hi shoppingarigas,
Unfortunately, Terry is right, that you should not have exchanged with a caveat in place. Most buyers wouldn't. The whole point about putting a caveat (which by the way anyone can do) on a property is to prevent it from being sold. I cannot believe your solicitor didn't alert you to this and advise you of the potential consequences? Might be a good idea to change solicitors?
It is actually not that easy to lodge a caveat. Not anyone can do it, but only those with some sort of equitible interest in the property – in NSW anyway. It can't be lodged by a creditor just because the owner of a house owes them a debt for example (but I hear that this can happen in other states such as Tasmania).
When lodging the Land Titles Office (or whatever they are called now) are pretty strict and not letting lodgment until they are satisfied the lodger has grounds. If someone does get past LTO then if they haven't got grounds they can be sued in the Supreme Court which could be costly.
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
there are circumstances where caveats can be forcibly removed , whereby the owner of the real property can seek a court order or obtain a lapsing notice from the department of lands and serve it on the caveator who can apply to the supreme court to extend the operation. How does the court decide that the caveator has a legal or equitable interest? The court I believe has the power to remove it if the property has been sold or if it has no equitable value.
Hi Terry,
I know of two cases in NSW where someone who was owed money by the owner of a property has gone and lodged a caveat. Neither of these two people were related to the owner or had an 'equitable interest'. One had a contract signed by a deceased relative of the property owner committing to investing funds in a business, the other was owed a small amount by the owner and had a court order to show that. Both were allowed to lodge their caveat, in Sydney, in the past 12 months. One was later removed, the other is still in place. So, based on my experience, even in NSW almost anyone can go and lodge a caveat.
Hi Sandra
I cannot see how this could be possible unless the loan agreement was structured so that it gave the lender some sort of charge on the property (which would give an equitable interest).
The Real Property Act deals with caveats at s74F deals with who can lodge one.
http://www.austlii.edu.au/au/legis/nsw/consol_act/rpa1900178/s74f.htmlI guess you would have to look into the case law to see what constitutes an equitable 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
Can someone please tell me what this means?
Second Schedule (3 notifications)
1/reservations and conditions in the crown grant
2/ mortgage to the Westpac
*3/ Caveat byNOTATIONS
Unregistered dealings-NIL#3 has an asteriks that states the entry doesnt appear on the current edition of the certificate of title. The information appearing under NOTATIONS has not been formally recorded in the register
I am not sure what it means exactly, but it seems to be on the certificate of title. there is nothing under notations so this is not relevant.
Do you have a copy of the caveat?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
No, Ill get a copy tomorrow Terry.
Can I ask a real silly qst?
If it is money that she wants from the sale and there is no funds after the bank has been paid out, can she stop the sale of the house until she gets what she wants even though there is nothing left over? Is that the reality of her lifting the caveat?
Good question actually.
She probably can delay or prevent settlement. My guess is that the bank may step in before she steps out.
A relative of mine actually had this happen to him. He sold the property and the woman he was involved with put a caveat, after the sale too I think, and they couldn't settle. He still owns that property today, 5 years later. He ended up being sued in the family court and gave her a payout to get rid of her.
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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