QLD Caveat process for Qld property

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Sonlyme

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7 February 2020
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Can anyone shed light on how long it takes to register a caveat on a property - is it instant? And once the caveat is registered what is the process?
 

Rob Legat - SBPL

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A caveat takes effect the moment it is lodged. In terms of registration, around a week - depending on whether the Registrar wants further information.

If it's a non-consent caveat, there's two ways it will broadly go:

1. The caveatee gives notice to the caveator to commence court action within 14 days of service of the notice. The caveator either does so and informs the Registrar, or the caveatee can inform the Registrar and lapse the caveat (removing it).

2. The caveatee does not give notice to the caveator, then the caveat will automatically lapse in 3 months unless court action is started.
 
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Sonlyme

Well-Known Member
7 February 2020
16
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71
A caveat takes effect the moment it is lodged. In terms of registration, around a week - depending on whether the Registrar wants further information.

If it's a non-consent caveat, there's two ways it will broadly go:

1. The caveatee gives notice to the caveator to commence court action within 14 days of service of the notice. The caveator either does so and informs the Registrar, or the caveatee can inform the Registrar and lapse the caveat (removing it).

2. The caveatee does not give notice to the caveator, then the caveat will automatically lapse in 3 months unless court action is started.
Thanks again for your reply Rob - much appreciated.

If I understand correctly- if my solicitor lodges a lien/ caveat against a property that has already sold (cash sale), it takes effect immediately but it will not be registered for a week? Which means any solicitor or Conveyancer dealing with the sale may not be aware of the caveat for at least a week?

The reason I ask is - I own a percentage of a property that has recently been sold to a cash buyer. The other party who own the property have refused to provide solicitor details. Indeed they did not advise the house was sold as I found out. I believe they are going to take all the money and leave the country and not pay me out. There is a history of this being their modus operandi.

Once I let them know the property had been sold and asked repeatedly for their Solicitor details they have refused. They offered to "send me the money without getting solicitors involved". Despite repeated requests for their Solicitor or Conveyancer details they have refused to provide them.

They are planning on leaving the country. The view is they will transfer the money from the cash sale direct into their overseas account and leave without paying my part of the property. We have a "Deed of Agreement". I was informed initially that this was watertight and meant we were "on the house deeds" however given the fact they were able to sell the house without our involvement and now this, it seems it is not watertight after all.

As we don't have their Solicitor or Conveyancer details, and they refuse to provide them, I have been informed the caveat is our only option. My concern is that as it's a cash sale they will take the money and run and the caveat will be too late as it's not being lodged until Monday. Should I be concerned?
 

Rob Legat - SBPL

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16 February 2017
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First, back up a bit. If you are a registered owner of the property, you will need to (a) sign the contract of sale and (b) sign the Titles Office transfer document. If you're not getting sufficient answers to your questions, don't sign.

Just because the property is 'sold' doesn't mean that's the end of it. There is generally a period of at least 30 days from signing the contract until settlement (when payment is exchanged). It is standard conveyancing practice for a title search to be done on the day of settlement to ensure nothing has been placed on the title in the meantime - like a caveat.

Lodged but unregistered dealings show on title searches. That means the very moment the caveat is lodged it will show on the search.
 

Sonlyme

Well-Known Member
7 February 2020
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71
First, back up a bit. If you are a registered owner of the property, you will need to (a) sign the contract of sale and (b) sign the Titles Office transfer document. If you're not getting sufficient answers to your questions, don't sign.

Just because the property is 'sold' doesn't mean that's the end of it. There is generally a period of at least 30 days from signing the contract until settlement (when payment is exchanged). It is standard conveyancing practice for a title search to be done on the day of settlement to ensure nothing has been placed on the title in the meantime - like a caveat.

Lodged but unregistered dealings show on title searches. That means the very moment the caveat is lodged it will show on the search.
Thanks again for your reply Rob, it's been of great help thank you.

I'm not actually sure if I am registered on the title deeds. The reason for the confusion is because many years ago I sold the house to family members ( husband and wife) who, at the time, could not afford to pay what the house was worth ( they obtained quotes as advised by a Solicitor at the time). I wanted to help them so I offered to accept part payment and the rest of what the house was worth I agreed to allow them to *owe* it. This was to occur on the death of them both when the house would be sold out of their estate. This was all addressed via solicitors on both sides and a "Deed of Agreement" was put into place to ensure everyone was in agreement and it was all above board and covered legally - for both parties. Other family members were also involved so that it was all above board.

Roll on many years later and neither of them have died - however they have now decided they no longer wish to live in Australia. I sought legal advice months ago and was informed that this Deed of Agreement meant I was on the deeds - which confused me initially because at one point I was told to lodge a caveat, and when I stated this would be expensive and I couldn't afford it I was then informed not to bother as in fact the Deed of Agreement meant I was part owner anyway i.e it would form part of the property deeds, which was news to me. I was informed as I was on the property deeds the caveat / lein would actually not be required after all so the decision was to not follow it through. I was advised to just keep a check of the property to see if it went up for sale, and advised the minute I see it has been placed for sale, to advise my Solicitor who would then contact the Real Estate Agent to ask for the owners Solicitor details.

Roll on to now; the house has been sold to a cash buyer, which I found out by chance by checking online randomly, and when I contacted the Real Estate Agent he had no idea I had a Deed Of Agreement with the owners which included a percentage of the property. He stated he was unable to give me information in regards to their solicitor however he would speak to the owners. They have refused to provide their Solicitor details.

Despite numerous requests the owners have point blank refused to provide any details. I suspect given they did not tell the Real Estate Agent and the fact they did not tell me they had sold, they probably have not told their Solicitor or Conveyancer either. Given my numerous requests for info and their reluctance to tell me anything as well as their numerous requests for me to not involve a solicitor, I believe they are planning to pocket the proceeds and get the Solicitor or Conveyancer to unwittingly send the proceeds of the sale directly to their overseas bank account.

I have a Deed of Agreement - however given the circumstances this isn't worth the paper it's written on if they conveniently don't tell their Solicitor of the Deed of Agreement- and he sends all the proceeds of the sale to their overseas account. From what I can gather the Deed of Agreement would be legal in Europe however the amount owing would not make it a viable option to chase up as the costs would far outweigh what was owed. I believe they know this.

Regarding the sale timeline : many years ago I completed a sale completion in 14 days - not normal from what my Solicitor told me, but I did manage it. This is why I'm concerned because this cash sale may be at least a week old by now. They will be pushing it through in case I'm on their trail...

Regarding the caveat register showing on a title search: would that be enough for a Conveyancer or Solicitor to stop the proceeds of the sale being sent overseas? In other words does the fact it's been lodged but not registered mean a solicitor or Conveyancer would be alerted to not sending the money overseas? Is this discretionary given it would be registered but not lodged?

Thanks again Rob - your help in trying to understand this has been invaluable. I really appreciate it.
 

Rob Legat - SBPL

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Get a caveat lodged urgently. A prudent buyer will do a title search on the day of settlement and not complete with a caveat in place. That will start the process for you as they will be scrambling around to find out what is going on. While settlement may still take place (but any solicitor who does so is begging for a negligence claim), the buyer won’t be able to register the property in their name with the caveat over the title.
 
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Sonlyme

Well-Known Member
7 February 2020
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Get a caveat lodged urgently. A prudent buyer will do a title search on the day of settlement and not complete with a caveat in place. That will start the process for you as they will be scrambling around to find out what is going on. While settlement may still take place (but any solicitor who does so is begging for a negligence claim), the buyer won’t be able to register the property in their name with the caveat over the title.
Rob thanks for your invaluable advice it's really appreciated.
 

Sonlyme

Well-Known Member
7 February 2020
16
0
71
Get a caveat lodged urgently. A prudent buyer will do a title search on the day of settlement and not complete with a caveat in place. That will start the process for you as they will be scrambling around to find out what is going on. While settlement may still take place (but any solicitor who does so is begging for a negligence claim), the buyer won’t be able to register the property in their name with the caveat over the title.
Hi Rob please can you shed some light on the following:

1. A caveat has now been lodged and I believe it takes about 5 days for this to move into the "registration" stage after which a letter is sent to the property owners at their address. Who sends this letter? is it the Titles office where the caveat was lodged or the Solicitor?

2. Given the house has been sold to a cash buyer - and the property is now stated as "sold" (as opposed to "under contract" which it was for 2 days) - the fact it's a cash sale could it still sell despite having a caveat placed on it?

3. The Real Estate Agent selling the property was not aware there was a Deed of Agreement (with explicit reference to the house not being sold without my written agreement) - is it prudent at this lodgment stage to contact the Real Estate Agent and fwd a copy of the Deed of Agreement and advise him to notify the owners and their Solicitor of the caveat lodgment?
 

Rob Legat - SBPL

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16 February 2017
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1. The Registrar of Titles sends the formal notice.

2. It could, but it's unlikely. If whoever is doing the conveyance for the buyer is prudent (and they're begging for a professional indemnity claim if they're not) will do a 'check' title search on the day of settlement which will show up the caveat. They will then strongly advise the buyer not to settle until the caveat is removed. If they had a lender, the lender would refuse to advance funds, etc. It is possible the title search could be missed, or the buyer could elect to settle anyway - but I've never seen it happen.

3. Write to the agent. Refer to the deed, but don't produce a copy if there's any sort of confidentiality clause in it. Otherwise you could be in default of the deed and that could erode your position. Also refer to the caveat, state it has been lodged, and you can even give them the dealing number if you want. That should be enough for them to go to the solicitor. In fact, just breathing the word 'caveat' to a real estate agent tends to be enough, especially when their commission is under threat.
 
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Sonlyme

Well-Known Member
7 February 2020
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1. The Registrar of Titles sends the formal notice.

2. It could, but it's unlikely. If whoever is doing the conveyance for the buyer is prudent (and they're begging for a professional indemnity claim if they're not) will do a 'check' title search on the day of settlement which will show up the caveat. They will then strongly advise the buyer not to settle until the caveat is removed. If they had a lender, the lender would refuse to advance funds, etc. It is possible the title search could be missed, or the buyer could elect to settle anyway - but I've never seen it happen.

3. Write to the agent. Refer to the deed, but don't produce a copy if there's any sort of confidentiality clause in it. Otherwise you could be in default of the deed and that could erode your position. Also refer to the caveat, state it has been lodged, and you can even give them the dealing number if you want. That should be enough for them to go to the solicitor. In fact, just breathing the word 'caveat' to a real estate agent tends to be enough, especially when their commission is under threat.
Excellent advice as always thanks Rob - much appreciated.