QLD Property Transfer - I've Been Paying Mortgage - Who Owns the House?

[JMichael]

I currently live with my sister in our father's house. A few years ago, we made an informal deal where I would pay $500 a week to cover mortgage repayments (as well are rates, etc.), and once the mortgage was paid, he would transfer the property from him to me. I receive all the council mail care of and cover all costs.

Just recently, I have found out that my father has signed a transfer form to give the property to my sister. I don't know why because my sister knew about the deal, but all she has paid for on the house been some minor renovations.

What are my rights on this under property law? Do I have any options for pursuing ownership of the property if something happens to my father?

 

[Ivy]

Hi there,

See this thread on a similar topic: QLD - Paying Mortgage - Will House Go to Me When My Mum Passes? | LawAnswers.com.au Legal Aid Forums

Firstly, has the property been registered under your sister's name yet?
Secondly, have you spoken with your father about why he didn't honour his agreement with you?
Thirdly, I suggest that you seek legal advice promptly and consider lodging a caveat before your sister's interest is registered. This is a notice on the register of your interest that will stop the registration of any dealings that are inconsistent with your claim (eg a transfer to your sister). However once you lodge a caveat in Queensland, you will have to prove your claim in court.

 

[JMichael]

Thank you.

My sister showed me the completed transfer form, but I don't think she has done anything with it yet. Does that mean it's not yet registered to her?

I haven't spoken to my father yet, I wanted to get an idea of where I stood because I don't want to rattle cages if I don't have a leg to stand on. I spoke briefly to a friend who is a solicitor, he said it would be considered an 'equitable interest', is that right? And that I might be able to prove that on 'part performance' of the agreement, since I've been paying the mortgage and all?

Again, thank you.

 

[Ivy]

Hi again,

Registration occurs when the transfer form and other required documents are sent to the registrar and the title is transferred to the new owner. If your sister hasn't lodged the form then title won't have passed to her yet.

Your solicitor friend is correct that you may have an equitable interest. However there are two important things you have to note:
1. It is very difficult to get an equitable interest recognised and upheld once title has been transferred. Registered interests are considered 'indefeasible' unless there is an exception such as for example if your sister committed fraud. And her merely knowing about your interest in the property probably isn't enough on its own to prove fraud. This is why I suggested in my first response that you should consider lodging a caveat as soon as possible. A caveat will stop the title being transferred to your sister until you have had a chance to prove your interest in court.

2. The 'part performance' your friend referred to is related to the equitable interest of a specifically enforceable contract. A specifically enforceable contract can be in writing or it can be proved through sufficient acts of part performance. In Australia, there is a strict definition of what constitutes part performance to prove the existence of a contract. The test comes from a case called Maddison v Alderson and to meet the test, the acts of part performance can only be referable to the existence of a contract of the kind alleged. You might run into difficulties under the strict test. This is because the existence of a contract for property transfer between you and your father is one explanation of why you paid the mortgage however another reason could be love and affection between family members.

So I think you should speak to your father as soon as possible and try to sort out this situation with him. Failing that you will need to speak with a property lawyer and lodge a caveat (if the property lawyer advises you to do so). Time is an issue here so you need to get onto this quickly before your sister lodges the transfer documents.

I hope this helps.

 

[JMichael]

Thank you for the information - very much appreciated.