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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 43244
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I am wanting to put a caveat on a property my sister and I

Customer Question

I am wanting to put a caveat on a property my sister and I own as her loan share on the property is some $10k more than mine. She is wanting to sell the property and take 50% of the residual after the loans are paid out. She still owes me $5.7k from the original set up costs and does not want to pay that either.
Could you assist me with this.
Thanks
Deborah
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Afternoon,

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

How is the loan structured? Do you each have separate loans or is it one loan and you keep a record of repayments?

Customer: replied 1 year ago.
Each Loan is in both names, but they are individual accounts, my Loan is paid down by myself to $107,033.07 and my Sister's Loan has been paid down by her to $117,717.90 we each keep our own records.
Expert:  Leon replied 1 year ago.

Good Afternoon,

Ok

Is there any agreement in place that when the property is sold that the outstanding loans are paid out of your respective shares or is this a verbal agreement?

Customer: replied 1 year ago.
It was a verbal agreement that is no longer being recognised by my Sister. We purchased the property in 2007.
Customer: replied 1 year ago.
Here is my Sisters comment
"Regarding your previous email, I think the fairest option is to list the property,
“For Sale” & sell the property.
After we pay out our loans to NMC, we should split the residual."
Expert:  Leon replied 1 year ago.

Good Afternoon,

You can register the caveat on title but it may be a breach of the mortgage as the Mortgagee has to be notified.

It has to be drafted carefully to set out the verbal agreement.

I cannot draft the caveat only provide you with the form to complete.

Here is some information followed by the form

https://www.business.qld.gov.au/industry/titles-property-construction/titles-property/transactions/caveats

https://www.dnrm.qld.gov.au/__data/assets/pdf_file/0003/97608/titles-form-11-version4.pdf

You set out that the loans are paid out of the respective shares.

I hope this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Customer: replied 1 year ago.
Hi Leon
Thank you, ***** ***** me an answer, it tells me what not to do but it does not tell me what I can do. So are you saying if I issue a Caveat that it may leave me open to a breach with both my mortgage and my Sister.
Could I not advise/check with the Mortgagee NMC and issue according to their guidlines. Surely this would not be the first time such an event has happened.
Thanks
Deb
Expert:  Leon replied 1 year ago.

Good Afternoon,

Not in breach of your sister but the mortgagee yes.

You can get their consent to the Caveat and advise them that it will not impact on their interests in the property.

It happens all the time. But most mortgages say that you will not register a caveat on title and if you do you will remove it unless you have their consent.

To lodge the caveat you complete the form I have given you and then register it with the department of lands.

All parties will be notified it has been registered.

Is there anything else I can assist you with?

If not

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon