Can I Lodge a Caveat on a House After Separation?
Updated: 4 October 2023 · Read time: 3 minutes
A caveat can be lodged on a house after separation, provided you can demonstrate an equitable interest in the property, and comply with the Land Title Act requirements. However you should be cautious pursuing this direction if done purely as a negotiation tactic or designed to harass the other party.
If you have separated from your spouse or de facto partner, then this can be a valid step in protecting property that you (at least partially) own.
A caveat is a legal document that is lodged with the land titles office to prevent any dealings with the property, such as a sale or mortgage, without the caveator's consent.
Establishing an Equitable Interest in order to lodge a caveat
Firstly, in order to lodge a caveat over a property you need to establish that you have an equitable interest in that property.
Lodging a caveat is similar to obtaining an injunction, a court-issued order prohibiting an individual from doing a specific action. In order to lodge a caveat, one must have reasonable grounds and comply with the Land Titles Act 1925 requirements.
Can you lodge a caveat if you didn’t financially contribute to the property?
If you did not financially contribute to the purchase or maintenance of the property, you may still be able to lodge a caveat if you have an equitable interest in the property.
One way to do this would be by demonstrating that there was an agreement or understanding between you and your ex-partner that you would have an interest in the property, and that you relied on that agreement or understanding to your detriment.
For example, if you and your ex-partner agreed that you would have an interest in the property in exchange for providing domestic or childcare services, you may have an equitable interest in the property.
This can be difficult to prove, and you should seek legal advice before lodging a caveat based on an equitable interest.
What are the "reasonable grounds" for lodging a caveat?
To lodge a caveat on a property, you must have a caveatable interest in the property. This means that you must have an interest in the property that is recognised by law.
For example, if you are a co-owner of the property, you have a caveatable interest. You may also have a caveatable interest if you have a contractual right to buy the property or if you have made substantial contributions to the property's purchase or maintenance.
To have "reasonable grounds" for lodging a caveat, you must have a genuine belief that you have a caveatable interest in the property.
For example, if you have a co-ownership interest in the property and your ex-partner is trying to sell the property without your consent, you may have reasonable grounds to lodge a caveat to prevent the sale.
What are the "unreasonable grounds" for lodging a caveat?
Lodging a caveat on a property without reasonable grounds can have serious consequences. It can delay property transactions, cause financial loss to other parties, and result in legal action against you. Some examples of unreasonable grounds for lodging a caveat include:
- Lodging a caveat as a bargaining tool to negotiate a property settlement.
- Lodging a caveat to harass or intimidate the other party.
- Lodging a caveat without having a genuine belief that you have a caveatable interest.
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