NSW Separation - Am I Trespassing on My Own Property?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

jjones3

Member
7 December 2017
1
0
1
Hi, I am desperately seeking answers!

My husband and I have been separated for the past seven years. However, we are still yet to divorce. We have 3 children together, one which lives full time with me and the other two who are 50/50 each.

My husband and I have four properties shared between the two of us, with my husband living in what was once the family home. The other three properties are currently used as rental properties, however, my husband has always received 100% of the income generated from them as he manages them (I have tried to contact/speak with the rental agents in order to be incorporated into the management of our properties however they never respond/give me access).

I have been renting for the past seven years due to not being allow access to any properties I own and, while recently looking at new rental properties online, discovered that one of the rental properties we own is currently vacant/for lease. I would like to know if I gained access to this property and had the locks changed in order to allow myself and my child to live there, could my husband call the authorities and have me charged with trespassing (even though the property is in my name)? Is there any way I could live in that property?

Rent in my city is very expensive and I have to support three children on my income, so I am hoping to find an answer!

Thanks
 

AllForHer

Well-Known Member
23 July 2014
3,664
682
2,894
Wow, you're really drawing the short end of the stick, here. Why haven't you divorced and sought a property settlement??

This is a bit tricky because of the time lapse, and I think it ties up some legal principles in joint tenancies, but insofar as your question goes, my understanding is that trespass is not available to either party of a joint tenancy in respect of a property - one cannot sue the other for trespass, since both own the property in question.

Do I think the police will do anything? Hard to know, but speculatively, my inclination is to say no. This is a family law matter, which is outside of state police jurisdiction - they're more likely to direct your ex to a family law solicitor than arrest you.

However, there are two potential complications that I can see - the first is that your ex might get an AVO to stop you attending property, and the second is that if a contract is drawn to let the property, the tenants are going to have rights of their own, no matter what dispute is going on between the owners. It may be worth a phone call to the real estate agent to advise that as a joint tenant in ownership, consent to let the property on your behalf is withdrawn until further notice. You might also look into putting a caveat on the property to stop your ex from carrying out any business with the property until you've sorted it out.

You do need to get legal advice, though, to make sure you're not about to do something very, very stupid. It would be worthwhile talking to a lawyer about a divorce and property settlement, too.
 

Rob Legat - SBPL

Lawyer
LawTap Verified
16 February 2017
2,452
511
2,894
Gold Coast, Queensland
lawtap.com
My initial thought is how does the agent get any lease signed by the owners without your signature, when you're one of the owners? Or are you not a registered proprietor?
 

Time101

Well-Known Member
10 July 2017
31
8
149
Wow,jones.
Seek divorce and property order asap.

His reaped the rewards for the last seven years as getting the rental income for all 3 and him having the benefits of living in the family home .. while u go renting. ALARM BELLS !! Can't believe you'll let him get away with that.
Do the maths of 3 properties rent x 7 years. You'll be in shock when ur entitled to half of the full total.

I don't understand why you wouldn't do property split and finances when you separated.??

Of course he won't seek a property order or divorce, sounds as though his happy with the arrangement.

Look the house is in your name. Go live in it change locks, he can't kick u out if your own home.
Also don't understand how he can rent a house that's not under his name. You need both signatures.

not sure if he supports u in any way , doesn't sound like it.

I wouldn't tell him that your moving into the rental which is yours anyways keep it quiet. When he finds out see what he says. If he threatens you then I'll call the police don't think he would.

Don't wait another 7 years to do the divorce or property orders.
dont know what the properties are worth and what the mortgages are.

I'm still in shock that you left him do that, not only to you but the kids.

Go live with the kids in your home. Don't let him stop you.

Good luck
 

Rod

Lawyer
LawTap Verified
27 May 2014
7,203
969
2,894
1. ... and have me charged with trespassing (even though the property is in my name)?
2. Is there any way I could live in that property?

1. No. Hopefully you have evidence of this to show the police if they turn up.
2. Yes. If it was me I'd move in while vacant and before a tenant signs a lease. The validity of any lease may well depend on missing details (ie have you at some distant time in the past signed an authority giving your ex and or agents permission? Is your name on the title?) I'd also be writing to the agent saying they do not have authority to enter into any new leases on property x and they will be responsible for all damages you incur as a result of their unauthorised behaviour, including but not limited to, reporting the agency to the REINSW and Fair Trading for possible breaches of their licence.

Without knowing more of the background, and I suspect more is happening here, then it is hard to predict what the ex will do in response.
 

SamanthaJay

Well-Known Member
4 July 2016
335
55
794
Wow,jones.
Seek divorce and property order asap.

His reaped the rewards for the last seven years as getting the rental income for all 3 and him having the benefits of living in the family home .. while u go renting. ALARM BELLS !! Can't believe you'll let him get away with that.
Do the maths of 3 properties rent x 7 years. You'll be in shock when ur entitled to half of the full total.

I don't understand why you wouldn't do property split and finances when you separated.??

Of course he won't seek a property order or divorce, sounds as though his happy with the arrangement.

Look the house is in your name. Go live in it change locks, he can't kick u out if your own home.
Also don't understand how he can rent a house that's not under his name. You need both signatures.

not sure if he supports u in any way , doesn't sound like it.

I wouldn't tell him that your moving into the rental which is yours anyways keep it quiet. When he finds out see what he says. If he threatens you then I'll call the police don't think he would.

Don't wait another 7 years to do the divorce or property orders.
dont know what the properties are worth and what the mortgages are.

I'm still in shock that you left him do that, not only to you but the kids.

Go live with the kids in your home. Don't let him stop you.

Good luck

Really, none of us know their history and it's unfair and unhelpful to say things like you can't believe she let him get away with it.