To lodge a caveat you must have an equitable interest in the property. A caveat acts like an Injunction, which is a Court order directing a person to not do a specific thing. This can stop the sale of land or property. You must have reasonable grounds to lodge a caveat, together with meeting the requirements of the Land Titles Act 1925.
Reasonable Grounds
Examples of reasonable grounds include:
There is a Constructive Trust: where you are not on the title or mortgage but you can prove that you have made financial contributions to the property either through:
Mortgage repayments; or
Contribution to the purchase of the property; or
Contribution to the maintenance or improvements of the property.
A declaration has been made by the Courts that an equitable interest exists.
In proving that there is a constructive trust, you must have proof in writing between you and your ex-partner that these financial contributions are contributions towards the property. This can be difficult to prove if you are simply transferring money for the purpose of your share of the mortgage to the personal account of your ex-partner.
Despite the above, a caveat cannot stop the registration of a Writ; the registration of another caveat; the registration of a document executed by the property owner whose interest was registered before the lodgement of your caveat or a correction or alteration of the registered by the registrar-general.
The caveat will require your full name and address, and a sufficient description to identify the land and the interest that you seek to claim. This is different to caveats lodged by order of the Court or by the registrar-general.
Unreasonable Grounds
Examples of unreasonable grounds include:
Simply being in a personal relationship with the owner of the land or property; or
An interest under the Family Law Act 1975 or the Property (Relationships) Act; or
An interest in the sale proceeds of the property expected to be included in a property settlement; or
A simple debt owed to a person by the person selling the property; or
You and your partner simply “agreeing” that you have an interest.
This means:
You are not able to justify a caveatable interest under the Acts if it has not been declared by the Courts. The interest must be an interest in land, not to protect a contractual or personal right or a statutorily based right that does not confer any interest in the land. This means it is not enough to have a verbal agreement between you and your ex-partner that you have an interest in the property, nor is an interest found in your non-financial contributions to the property, such as caring for the property and/or the other person.
You are also not able to lodge a caveat for an interest that will arise in the future, such as an expected property settlement. This means if you have an interest in the proceeds of the future sale of land or property, you do not have a right to lodge a caveat. This is different to a right to enforce the sale of the land or property, which can come into force once you have formalised your property settlement either by Consent Orders or a Binding Financial Agreement.
What can I do if I didn’t financially contribute to the property?
If you do not have reasonable grounds to lodge a caveat, you can file an injunction with the Federal Circuit and Family Court of Australia and seek a declaration from the Courts that you have an equitable interest.
If you or someone you know is considering your rights and interests to their property, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters.
If you would like advice in relation to your family law matter, contact our office at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.