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Brisbane.Lawyer
Brisbane.Lawyer, Solicitor
Category: Australia Law
Satisfied Customers: 1601
Experience:  Lawyer of the Federal and High Courts of Australia; Lawyer of the Supreme Court of Qld
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I have a caveat over my house and I have offered to pay the

Customer Question

I have a caveat over my house and I have offered to pay the full amount of the caveat to the person who took it out. He is refusing to communicate with my solicitor to have the caveat removed. I have a buying waiting to complete the sale on my house and I am ready to move to another. He has a 25% interest in the house. I feel we should be able to have the caveat removed and he should have to share 25% of the cost of the sale. Can you please advise me?
Submitted: 5 months ago.
Category: Australia Law
Expert:  Brisbane.Lawyer replied 5 months ago.

Hi, it appears you already have a lawyer acting for you in this matter. They are much better positioned to advise you what your legal rights are in this situation, as they have access to all of the information, and have the conduct of your matter.

Having said that, can you please advise when the property is or was expected to settle? and whether your lawyer has explained the process in NSW with respect to Caveats?

Has a Caveat lapsing notice been issued?

Please read the information in this link:

http://www.lpi.nsw.gov.au/__data/assets/pdf_file/0019/109720/Appn_prep_lapsing_notice.pdf

I await your responses,

Kind regards,

James

Customer: replied 5 months ago.
the property was to settle 28/616
No explanation from Lawyer re caveat and how it works
The caveat lapsing notice has not been issued to my knowledge
Customer: replied 5 months ago.
Does this mean after we apply we have to wait 21 days to have the caveat removed?
Expert:  Brisbane.Lawyer replied 5 months ago.

Yes, the removal process takes time... and also opens the possibility of litigation regarding the Caveat in the Supreme Court of NSW... if the Caveator lodges legal proceedings...

Another possible solution (if the Caveator is actually contactable, and agrees to sign both the transfer to him and to the Buyer at the same time) is whether to proceed to sever the joint tenancy between yourself and your mother, so you both own 50% each.. then to lodge a transfer of the 25% interest in the Property to the Caveator.. this would automatically remove the Caveat, and give the Caveator a right to share in 25% percent of the sale proceeds, after the costs of sale.

I am not sure how you go charging board for 12 months, if no rent was agreed.

I cannot advise much further without seeing the agreement, the Contract, the Caveat, and the correspondence sent by your lawyer, and any response from the Caveator? And this is akin to starting to act for you in the matter... with associated legal fees being charged.

Kind regards,

James

Expert:  Brisbane.Lawyer replied 5 months ago.

As co-owners of the property,there should have been a co-ownership agreement that deals with how the property is to be sold, what happens if co-owners live in the property, etc.

Has the Caveator (as co-owner) paid his share of the mortgage payments, maintenance costs, rates, etc??

Kind regards,

James

Customer: replied 5 months ago.
Can I charge cost of sale, such as agent fees, solicitor fees and the need to repair the tiles in the house, which was a condition of the purchaser
Customer: replied 5 months ago.
He did not agree to pay rates or mortgage payments or maintenance costs. He is not on the deed of the house. I was told originally that he could not force us to sell the house. Now his solicitor has sent a letter saying he will force us to sell
Customer: replied 5 months ago.
Hello James are you there
Expert:  Brisbane.Lawyer replied 5 months ago.

Hi, I am confused.. have you not already sold the property?

All costs of sale can be deducted - including the tile repairs.

I understand he is not on the Deed to the house... but he has a signed agreement that says he owns 25% of the property? what does this agreement say about the mortgage, rates, property maintenance? Does it say he does not have to pay?

By law, co-owners generally must account to the other co-owners in their respective % shares.

This agreement is the basis of his Caveat.

A co-owner of a property (generally even if they are not on the title) can force a property to be sold, if the other owners refuse. But, there is again, generally a process that needs to be followed.

You have stated the property has already been sold... that is why I am confused?

Kind regards,

James

Expert:  Brisbane.Lawyer replied 5 months ago.

Thanks for the letter... everything stated therein sounds plausible.. however, I don't have a copy of the Deed that is mentioned? So I cannot advise further.

Please accept my above answers, and return to your lawyer for further advice, or advice whether you would like to retain my legal services directly.

Kind regards,

James

Customer: replied 5 months ago.
We have a buyer and the exchange of contracts depends upon this caveat being settled at the same time. Yes the agreement says he does not have to pay rates etc.
Expert:  Brisbane.Lawyer replied 5 months ago.

OK, so you don't even have signed Contracts yet with your proposed Buyer. So you have not yet actually sold the property.

You need legal advice regarding the agreement that has been signed, and how much $$ the Caveator has a legal right to claim.

Kind regards,

James

Expert:  Brisbane.Lawyer replied 5 months ago.

The legal advice can then inform your settlement negotiations, so that this matter can be resolved.

Expert:  Brisbane.Lawyer replied 5 months ago.

I am heading out for approx. 1 hour... I will continue this discussion when I return. Cheers, James

Expert:  Brisbane.Lawyer replied 5 months ago.

Hello, are you there? Cheers, James

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