I am in the middle of purchasing a property which has had a caveat on it. The caveat has been in place since mid-2009. The caveat is in relation to money owed to the caveator by the owner of the property, which actually totals more than the property's current value.
There was a court order in June 2012 to list the property for sale, and have the caveat withdrawn. I found the property on realestate.com.au in mid-August (I found it as a new listing). Upon getting the contract from the agent, is when I found out about the caveat being on the property.
My solicitor said the caveat needed to be removed before exchange of contracts. So the estate agent started the process of getting it removed.
I did a title search just yesterday and the caveat IS now removed for certain. I also did a history of title search which shows it was removed late September.
Now.... just a day or two before exchange (which was supposed to happen today), my solicitor has raised concerns that the method of the removal of the caveat was possibly not legal. The estate agent got the OWNER'S solicitor to fill out a Withdrawal of Caveat form and submit it to the LPI office in Sydney. So it was NOT done by the caveator, or the caveator's solicitor.
The solicitor who did submit the form apparently got advice at the time as to whether he could do this or not, and he was advised by a barrister that it was OK (again, only apparently, this is what I was told from the estate agent).
But my solicitor still has concerns over the way it was done. He thinks that what was done was possibly still not legal. We also think that the caveator himself does not even know that it has been removed. By the way, he had taken no action since the court order to remove the caveat.
So, did the withdrawal of caveat form absolutely have to be submitted by the caveator or the caveator's solicitor to be legal? Does the caveator have any possible grounds to sue me as the new owner, or take this back to court after i have moved into the new property? Even now that the caveat has been removed?
There was a court order in June 2012 to list the property for sale, and have the caveat withdrawn. I found the property on realestate.com.au in mid-August (I found it as a new listing). Upon getting the contract from the agent, is when I found out about the caveat being on the property.
My solicitor said the caveat needed to be removed before exchange of contracts. So the estate agent started the process of getting it removed.
I did a title search just yesterday and the caveat IS now removed for certain. I also did a history of title search which shows it was removed late September.
Now.... just a day or two before exchange (which was supposed to happen today), my solicitor has raised concerns that the method of the removal of the caveat was possibly not legal. The estate agent got the OWNER'S solicitor to fill out a Withdrawal of Caveat form and submit it to the LPI office in Sydney. So it was NOT done by the caveator, or the caveator's solicitor.
The solicitor who did submit the form apparently got advice at the time as to whether he could do this or not, and he was advised by a barrister that it was OK (again, only apparently, this is what I was told from the estate agent).
But my solicitor still has concerns over the way it was done. He thinks that what was done was possibly still not legal. We also think that the caveator himself does not even know that it has been removed. By the way, he had taken no action since the court order to remove the caveat.
So, did the withdrawal of caveat form absolutely have to be submitted by the caveator or the caveator's solicitor to be legal? Does the caveator have any possible grounds to sue me as the new owner, or take this back to court after i have moved into the new property? Even now that the caveat has been removed?
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