My ex passed away on 24/4 2020. How could I put a caveat on the property. Which dept deal with tenancy and landlord.

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Customer: My ex passed away on 24/4 2020. How could I put a caveat on the property.
JA: What state are you in? It matters because laws vary by location.
Customer: Which dept deal with tenancy and landlord. Thanks
JA: The Lawyer will be able to walk you through that. What steps have you taken so far?
Customer: I am from Perth WA
JA: Anything else you want the Lawyer to know before I connect you?
Customer: My ex left his will for the sale of our house to one of his previous married son and two to our sons. We have separated since 2001, but not divorced. The house is in joint name. He also has a daughter in his previous marriage. She might challenge the will. Might i put a caveat on the property or what right do I have. The house in our joint names and freehold.
Answered by John Melis in 8 hours 2 years ago
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John Melis, Expert

Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.

Concerning your important matter, where you want to place a caveat on the property, what you need to do is utilise your local conveyancer or lawyer.

The alternative is to go to the titles office directly and manually lodge a caveat against the property.

The caveat will protect you and this will provide you negotiating power with your son to settle the dispute without fear of loss.

Caveats are a form of a statutory injunction and may only be lodged by persons who have an estate interest in land.

A party cannot confer a right under contract to lodge a caveat where no caveatable interest exists. However, if there is a proprietary right created through contract, which creates an interest in land a caveat can be registered against that land.

A caveatable interest is a proprietary interest. In Municipal District of Concord v Coles (1906) the court held: it is only a person who has a legal or equitable interest in land, partaking of the character of an estate in it or equitable claim to it, who can lodge a caveat.

Considering this point another way. An existing proprietary interest at law or in equity will support both the lodgement and extension of a caveat, whereas a straight contractual right will be insufficient. The legal and equitable interest must presently exist and not be a mere potentiality.

There needs to be no relationship between the registered proprietor and the interests of the caveator, all that is required to lodge a caveat is a legal or equitable interest in the property.

Once the caveat is lodged, it will remain in place until removed by the caveator or by order of the court.

Some examples of caveatable interests include:

1. A purchaser under a contract of sale.

2. A lender that finances a property.

3. A building contract which contains a charging clause for a caveat but this claim is with risk.

4. An option to purchase or repurchase land supported by valuable consideration.

5. A caveat may be lodged pursuant to an implied trust.

6. A caveat may be lodged pursuant to a constructive trust.

7. Personal representatives of a deceased estate have a right to lodge a caveat to protect the estate.

Caveats may be lodged under a range of claims, but caution must apply because wrongly lodging a caveat can destroy a registered proprietor’s right to deal with the land in the way that party requires. And in order to protect registered proprietors, a party that wrongly lodges a caveat without reasonable cause, the registered proprietor will be able to bring a claim against that party for compensation and damages sustained.

Thank you for reaching out today.

You have a legal right to protect your interests in this important situation.

I am a user like you in this chat forum to assist in your important question today.

Thank you kindly for rating me with 5 stars, which helps me support the community.

You can come back to this post any time to ask questions without additional charge.

I hope I have assisted with answering your important question today, and thank you for supporting the community.

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