Can I lodge a Caveat to stop a property from being sold?

I am concerned my partner will sell the property in their sole name – what can I do?

A property with a caveat lodged on the title cannot be transferred or re-mortgaged until the caveat is removed.  While lodging a caveat can be a quick and relatively cheap way to prevent a property from being dealt with.  

However, a caveat can only be lodged if you have a caveatable interest in the property.   

When can I lodge a caveat in a family law matter?

In family law matters, caveats are usually lodged to prevent the sale or transfer of a property until a distribution of assets is agreed upon. 

However, the existence of a marriage or de facto relationship, or the fact that you have commenced family law proceedings, does not automatically give rise to a caveatable interest. 

The usual claims for lodging a caveatable interest between former partners is the existence of an implied trust. 

Some of the factors that would evidence the existence of an implied trust are as follows:

  1. The combining of financial resources; 
  2. Contribution made to mortgage payments;
  3. Non-financial contributions to the property, such as child care, domestic duties and renovations;
  4. If the spouse financially contributed to the deposit of all or part of the purchase price but was not on title.

How can I remove a caveat that has been incorrectly lodged?

A caveat will usually be removed with the consent of the caveator as part of a final settlement.  This article provides the alternative methods of removing a caveat if consent is not provided and the caveat has been lodged incorrectly or will seriously disadvantage the owner.

A Section 89A Application is an application made to the Registrar of Titles at the Land Registry Services for a ‘lapsing notice’ to be sent to the caveator.  Once the caveator has received the notice, they have 30 days to issue court proceedings to verify they have a legal right to lodge the caveat.   If they do not issue proceedings, in a week after the 30 day period, the Caveat will be automatically removed.

A Section 90(3) Application (derived from Section 90(3) of the Transfer of Land Act 1958) may be a more time effective method in urgent circumstances (for example, the property has been sold to an independent third party and settlement is pending).   

Applications for a Section 90(3) Application is made to the Supreme Court.  The Court will invite the parties to a hearing where the caveator must prove that they have a proper legal interest for the caveat to remain.  If the Caveator cannot prove that they have a valid legal right to retain the caveat, the caveat will be removed.  

If the caveator can prove to the Court that they have the right to lodge a caveat, however the retention of the proceeds of sale, rather than the property in specie is an equally helpful option, then the Court may make orders for the settlement to proceed, with the entire proceeds (or part thereof) to be held in trust pending a decision by the Court as to an appropriate distribution.

In the event that a person lodges a caveat without a valid legal reason for doing so, in the event a Section 90(3) Application is filed, they may have to pay the property owner’s costs.

Arrange a ½ hour free legal advice appointment by calling us today on (03) 8390 7007 or by filling in the Contact Us form.

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Andy Z
Andy Z
2022-03-08
hqman74
hqman74
2022-02-11
Great lawyers, highly recommended
Vjollca Dervishi
Vjollca Dervishi
2021-12-13
When I first visited Aberdeen Lawyers I was scared and emotional, as soon as I met with Suzanne all my fears went away, she has this kind of magic to her that I can not explain. I can not whole heartdly recommend Suzanne at Aberdeen Lawyers enough! Suzanne made me feel like I was speaking to a good friend she made me feel welcomed and justified all my feelings, I was with Suzanne in my matter for a year and honestly she has become like family now. At every point in my case Suzanne walked me through it she made me laugh when I wanted to just cry. I have not met a most caring lawyer in my life and I've been through quite a few. I owe Suzanne my life. Thank you Aberdeen Lawyers- special mention to AnnMarie who went above and beyond for me also!
Paul Kelly
Paul Kelly
2021-11-23
Easy relationship with our conveyancers as we were first time property sellers. All calls were returned in a timely manner, and settlement was made easy for us!
Sally Mannix
Sally Mannix
2021-11-14
I first went to see Suzanne more than 3 years ago for what should have been a straight forward property settlement. I had no idea at that time just how complicated things were going to get. While I was having a lot of emotional breakdowns, Suzanne always remained calm and dealt with each new issue as they came up. While Suzanne was always professional, she was also very caring and empathetic at the same time. Her “can do” attitude and determination to do her absolute best for her client really stood out from that very first appointment. Suzanne and Vittoria were always available for a “calming” chat and, I can tell you, I needed plenty of them. Andre was very helpful and professional in dealing with another part of my property settlement, also having to deal with issues but able to get things done. I know that the reason I still have my home (with no more fear of ever losing it) is 100% due to Suzanne and her wonderful team. A big heartfelt thank you to you all, you are amazing! I would recommend Aberdeen lawyers to anyone, and I have!!!
Collette Marshall
Collette Marshall
2021-10-08
I Consulted with Emmanuel Kefalas for my Divorce & Property Settlement. Kind, Considerate & Knowledgeable with Family Law matters. Emmanuel has a soft tone and was compassionate which made a big difference to my mental state at the time. I appreciated that he wrapped up the settlement as soon the opportunity emerged, no delays ! Thank you. I highly recommend a consultation with Aberdeen Lawyers
Jayne Cassar
Jayne Cassar
2021-09-21
Suzanne and the team at Aberdeen Lawyers were supportive, professional, reassuring and compassionate throughout my recent emotionally stressful case. I was guided through every step of the legal process. They were by my side the whole way through. I highly recommend Aberdeen Lawyers. Thankyou Suzanne for your guidance and support.
Rebecca Shill
Rebecca Shill
2021-09-17
Thank you to Suzanne and AnnMarie from Aberdeen Lawyers for all their hard work on my Family Court Matter. You were very professional and knowledgeable when it come to Family Law. I appreciate all the support you have given myself.
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walter fiedler
2021-08-19
I highly recommend Aberdeen Lawyers, as they helped me settle a long and ongoing property dispute with a very good outcome in my favour and I could not be happier. Big thanks to Val and Suzanne
Vasanthi Christina Jayasingh Lazarus
Vasanthi Christina Jayasingh Lazarus
2021-08-14
I went through a very difficult (to say the least) and traumatic children custody court case for 2 years. Emmanuel from Aberdeen lawyers was referred by one of my friend, who was going through his own case at the time. He too had only great things to testify about this law firm. Right from the time I made an appointment for the initial consultation, starting from Vittoria, in the reception, everyone in the law firm were very warm and empathetic. Emmanuel is a very genuine lawyer, who listens and wants the best outcome for his clients. He makes time whenever needed and is always available to discuss any aspect of the case, however small it maybe. He is always reachable and returns calls and emails promptly. The one thing that really stood out for me about him was that he never once during the whole process made any claims or promises to just make it look good or easy. I’m really grateful to him for getting us across the line with a positive outcome. He took me through every step of the process patiently and provided the much needed moral support I needed to get out of the traumatic experience. I would highly recommend Emmanuel and Aberdeen lawyers for their professionalism!!!

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