When a relationship ends, figuring out who gets to keep certain property can be a cause of concern, especially if you have been contributing to mortgage repayments on a property owned solely in your former partner’s name. What happens if you break up? Can your partner just sell the house without telling you? This is where a caveat may assist, in certain circumstances.
What is a caveat?
A caveat is like a public record indicating an interest in real property. If you lodge a caveat on a property, it means that the registered proprietor is unable to sell or deal with the property without the caveat being removed from the title.
Why and when to lodge a caveat?
In certain circumstances, including where you can establish an equitable interest in a property, a caveat may be used to protect your interest, or to delay certain dealings with a property that you may not know about or consent to. The Family Court has dealt with cases involving caveats in the past and has determined that a mere interest in a property as a result of an arguable case for an adjustment of property interests between separated parties may not (of itself) be a caveatable interest. Care must accordingly be taken when exercising such a right or taking such a step to lodge a caveat over a property not legally owned by you.
How to lodge a caveat?
To lodge a caveat, you must be able to demonstrate that you have a legal or equitable interest in the property. This may include by having made financial contributions towards the acquisition or improvement of the property. The application process involves completing specific forms and submitting them to the land titles office, as well as paying a fee. It is very important to seek legal advice before you do so, as lodging a caveat without a proper basis can have consequences, including in some circumstances financial penalties.
Does a caveat expire?
In jurisdictions like the ACT, a caveat remains on the title of a property once registered, until the caveator takes steps to remove it or the registered proprietor of the property applies for the lapsing of the caveat. If a caveat is disputed, the issue may need to be resolved in the Supreme Court, where a judicial officer decides whether the caveat is valid based on the evidence presented to the Court.
If you have a query about lodging a caveat and you are separated or considering separating, you should seek specialist family law advice.
Our team at Robinson + McGuinness is ready to guide you to ensure your rights and interests are prioritised. Contact us today to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Charlotte Wei