WA Caveat Placed on Property - What are My Property Rights?

[Cimara]

Hi,

I have been contributing to the mortgage payment for my husband's property since we got married.
Recently his "ex" placed a caveat on the property over their child support issue. His ex-partner never had anything to do with this property. They had a one night stand and ended up with a child.

This has put me in a predicament because although I have been contributing to the mortgage payment, my name is not on the title. So what is my right in this situation under Property Law? Will his "ex" be able to ask the court to see the property? What about my share of it? Do I legally have any property rights to it?

Thank you

 

[James D. Ford - Solicitor]

Hi Cimara

The following questions will assist to help determine what rights "if any" your husband's "ex" has to his property.

1. Has their been DNA evidence to prove that your husband is actually the father?

2. How old is the child? More or less than 2 years old?

3. Has there been a binding property settlement entered into between your husband and his "ex"?

4. How long ago was the Caveat placed on the Property? Was the Caveat prepared by a lawyer?

With regard to your property rights... as his wife, it does not matter that your name is not on the Property. You have a right to a share, in the event that you separate.

Kind regards

 

[Rod]

My knowledge of caveats is incomplete.

I had thought (from limited reading), that caveats (regardless of type) on land titles were only allowed to be placed if a person had a financial interest in the property. A creditor of the owner does not acquire an automatic right to place a caveat on a land title merely because the owner owes money to a creditor. Is this understanding correct?

In the situation above, if there are no property settlement issues, then owing a debt for child support does not entitle a non-resident parent to place a caveat on the title.

 

[James D. Ford - Solicitor]

Hi Rod,

You are correct. A debt by itself is insufficient to constitute a "caveatable interest" over a Property.

If however, the husband is the father of the child, and no property settlement has been reached with the "ex" -- the "ex" has a right to a property settlement with the husband, which is a "caveatable interest".

So until we obtain more information, we have to assume that a lawyer prepared the Caveat, and knew enough to couch the claim, in terms of a right to a property settlement.

If the Caveat has been lodged, and there is no "Caveatable Interest", the husband will have a right to make a compensation claim against the "ex" for any losses caused by the lodging of the Caveat.

Kind regards

 

[Cimara]

Hi James,

1. Yes, DNA test was done and it was confirmed.
2. the child will be 6 in August this year.
3. No, currently the case is with Family Court. Because my husband is not liable to pay maintenance under CSA (he doesn't reside within Australian jurisdiction). The court case has been going on since August 2013
4. Caveat was placed around October 2013, and I believe it was prepared by a lawyer

My issue is I have put a total of $80k into the mortgage of that property. With the interest rate drop in the last 3 years, I (or we, should I say) could have benefited from the rate drop but we believe we are unable to re-finance to take advantage of lower interest rate.

Another thing, it seems that the caveat will stay forever until my husband returns to reside in Australia, even after the Court determines a periodic maintenance payment. This is what the Magistrate has eluded to so far.

So should I stop contributing paying to this mortgage? What happens if the "ex" demands to sell the property? Can she do that?

James, you mention that as the wife I have a right to a share of the property if we separate. So if we don't separate, do I lose my share to the "ex" (because my husband and I are seen as a unit, what happens to my $80k)?

Thank you.

 

[James D. Ford - Solicitor]

Hi Cimara

Thank-you for the additional information.

The Caveatable interest will be supported by the right to a "property settlement" currently being claimed in the Family Court.

As the Caveat has been prepared by a lawyer, I am assuming it will have correctly described the "caveatable interest", though it is worth having this confirmed by your own lawyer.

It is possible that the Court could order the sale of the Property, as part of the property settlement orders.

Does you husband have a lawyer acting for him in the current Family Court proceedings?

What is the legal advice regarding the anticipated outcome?

What is the "ex" asking the Court to order her with regard to the Property Settlement?

Has a settlement offer been made with the "ex"?

How much equity is left in the Property, if the "ex" gets what she wants?

All of the above, needs to be considered before you make drastic decisions, such as whether to stop paying the mortgage, whether to stay with or separate from your husband, etc.

You matter is complex, and you need to have a properly briefed lawyer advising you, so you can make fully informed decisions.

Whilst you are married, your $80k, is both you and your husband's $80k.

What happens to the $80k, cannot yet be determined. It depends on the answers to the above queries... depending on the facts, the outcome of the proceedings, or any settlement negotiations, and the decisions you make, it may or may not be at risk, of being lost or partially lost to your husband's "ex".

Kind regards,

 

[Cimara]

Hi James,

Neither my husband nor his lawyer has seen the "Caveat", Do we obtain this from landgate? we have only seen the title with the caveat on it.

Yes, my husband does have a lawyer acting on his behalf.

The Magistrate did release a Reason for Decision document which stated that there is no reason for lump sum payment. And proposed the order of periodic payment (yearly). However, the matter is being re-looked at for it to be re-opened given that my husband has lost his job and re-employed with 40% pay cut and a friend told him that his "ex" has money in the bank account not previously declared. Now we find she has, at least, 120k in the bank previously undeclared.

This matter is dragging on also because the Magistrate is ill so the court date has been rescheduled 3 times, and the "ex" still has not (after 3 years) provided financial documents requested such as bank statements, remuneration statement, not declaring that she is in fact in a de-facto relationship and claiming expenses that she doesn't have such as child care (not required because child is at school and/or with nana).

My husband has offered periodic payment though less than what the Magistrate originally proposed to order

There is $300k in equity, the "ex" is demanding lump sum of "210k" My husband's lawyer advised against doing anything that will prompt the Magistrate to order a lumpsum or to offer a lump sum settlement, because given the "ex"s history she will definitely 'try again' in the future even after getting a lump sum payout now. The Magistrate did order a temporary removal of caveat to allow my husband to refinance, but the "ex" still has not removed it. There seems to be no consequence for not following orders?

I cannot lose the $80k. It's paid out of my savings, I quit my job when my husband and I had our son. So if I (or we) lose this, then we'll have no property and no savings. My husband's seeing a psychiatrist over this, and recently received a warning letter from his employer about his performance at work. He's diagnosed with depression.
So I'm at a loss. I have a depressed husband and I stand to lose $80k which I've worked for the last 7 years because of my husband's mistake.

Thanks for your help, James

 

[James D. Ford - Solicitor]

Hi Cimara

Yes, you can use the titles reference/dealing number and search Landgate (Titles Office) online for a copy of the Caveat (if it has been successfully registered)!!

It seems strange that your husband and/or his lawyer has not been provided with a copy of the Caveat?

The Landgate search result will advise the status of the Caveat.

If they do not have a copy - this can occur when a Caveat is lodged against a Property, but it is defective and is requisitioned to be fixed by the Titles Office.

The status is then unregistered, unless and until the defect or issue is resolved.

In this case, your husband and his lawyer, do not get to see the Caveat unless it is successfully registered.

If after a period of time, the defect or issue is not resolved, the Caveat will then be rejected by the Titles Office, and the title will be clear again - so your refinance could take place.

Regarding the Magistrates Order to temporarily remove the Caveat - if this was a Court order and it has not been followed...

Your husband can make an application to the Court for a Contravention Order which will impose a penalty/consequence for what is effectively contempt of Court!

What is your husband's lawyer doing, if you have not been advised regarding a Contravention Order application? Or the status of the Caveat?

A Contravention Order should force some movement with the Caveat, whatever it's status... which will then allow the refinance...

Kind regards