Withdrawal of Caveat?

Rupert- there is no such thing as a caveat just to "let her know" that you are selling. Put her on notice that if settlement is delayed due to the release of caveat that you will be holding her liable for any losses incurred. Do this in writing. If settlement is less then 21 days away you probably don't have the time but you can issue a notice for her to remove it or after 14 days go to Court to get an order for it to be removed (plus legal costs to be paid by her).

I am not sure how she caveated your interest but assuming you went 50/50 with your brother can his half share of net proceeds be put into a trust account pending the resolution of their spat.

If the caveat is over 3 months old you may be able to remove it without her signature if she hasn't started proceedings and notified the registry of that.
 
Hi cu@thetop,

My brother and I have 50/50 interest in the property and his half share will be put into (her solicitor's) trust account to divide accordingly as per their agreement. It shouldn't effect my half.

The whole "just to notify her" thing was something her solicitor fed her. I don't think she realised it could cause problems with settlement. (English is not her first language). The caveat was lodged a while ago and as court proceedings were taken not long after, it is now deemed to be non-lapsing.

On the sales contract, the buyer has stated specifically in capital letters under "special conditions" that the caveat is to be removed prior to settlement otherwise the contract will end and he gets his deposit back. My understanding is that if the withdrawal papers are handed over ON settlement day (which I assume would be the usual way) he would still have to wait at least a few business days for it to be lifted before he could transfer the title in his name.

Looking at the copy of the caveat, she signed it on the 18th day and it was not registered until the 28th day. So there you go, could be 10 days to get it processed. Her solicitor still insists on waiting until settlement day.
This little techniicality that could cost us the sale is giving me a bit of chest pain.

Anyhow she knows the situation and I asked her to consult with her solicitor. I'll have to set up a meeting with my solicitor to see what steps we need to take to ensure it's done in time.

Cheers,
rupert11
 
rupert11 said:
Hi cu@thetop,

My brother and I have 50/50 interest in the property and his half share will be put into (her solicitor's) trust account to divide accordingly as per their agreement. It shouldn't effect my half.

The whole "just to notify her" thing was something her solicitor fed her. I don't think she realised it could cause problems with settlement. (English is not her first language). The caveat was lodged a while ago and as court proceedings were taken not long after, it is now deemed to be non-lapsing.

On the sales contract, the buyer has stated specifically in capital letters under "special conditions" that the caveat is to be removed prior to settlement otherwise the contract will end and he gets his deposit back. My understanding is that if the withdrawal papers are handed over ON settlement day (which I assume would be the usual way) he would still have to wait at least a few business days for it to be lifted before he could transfer the title in his name.

Looking at the copy of the caveat, she signed it on the 18th day and it was not registered until the 28th day. So there you go, could be 10 days to get it processed. Her solicitor still insists on waiting until settlement day.
This little techniicality that could cost us the sale is giving me a bit of chest pain.

Anyhow she knows the situation and I asked her to consult with her solicitor. I'll have to set up a meeting with my solicitor to see what steps we need to take to ensure it's done in time.

Cheers,
rupert11
Click to expand...


Title is not changed at settlement. What happens is all the paperwork and money is handed over. The caveat withdrawal form included. This will result in 'settlement'. The purchaser's lender will then later lodge the transfer and removal of caveat. This could be many days or even years down the track. (I had one with ANZ where the title wasn't transferred at all and I only found out when I tried to sell it!).

So, having a condition that the caveat be removed prior to settlement may pose a problem. The legal sellers are not in control of the caveat so you cannot guarantee this will happen, and it probably won't happen without some good negotiations. She should probably accept a solicitor undertaking that the proceeds will be placed into a trust account at settlement and not disbursed until xxx. But family law disputes rarely end smoothly.
 
I would think that if the court order says something along the lines of "x proceeds from the sale of the property will be paid to Mrs ex-wife at settlement" and both the buyers and your solicitor are aware of the court order, then she can lift the caveat without being concerned she won't get her share. Your solicitor should be able to sort this out but it sounds like you have been talking to her again.
 
NedKelly said:
I would think that if the court order says something along the lines of "x proceeds from the sale of the property will be paid to Mrs ex-wife at settlement" and both the buyers and your solicitor are aware of the court order, then she can lift the caveat without being concerned she won't get her share.
Click to expand...

What if the husband just takes the money and runs?
 
Terry_w said:
What if the husband just takes the money and runs?
Click to expand...

My brother's half share will be made out to the ex-wife's solicitor's trust fund as per court order. I did talk to her, only to ask her to contact her solicitor to contact my solicitor and then to contact my brother's solicitor. Who said Family Law issues were complicated?

The real doozy is that it's not even my divorce!


Cheers,
rupert11
 
rupert11 said:
My brother's half share will be made out to the ex-wife's solicitor's trust fund as per court order. I did talk to her, only to ask her to contact her solicitor to contact my solicitor and then to contact my brother's solicitor. Who said Family Law issues were complicated?

The real doozy is that it's not even my divorce!


Cheers,
rupert11
Click to expand...

That is fine, but think of it from her point of view. What guarantee does she have that she will get the money? Her solicitor will be doing everything possible to make sure she does and this would entail not giving away the power of caveat too soon.

I think an undertaking by your bro solicitor to pay the money to the trust account would be enough, but you never know.

Will there be much money left over?
 
Terry_w said:
That is fine, but think of it from her point of view. What guarantee does she have that she will get the money? Her solicitor will be doing everything possible to make sure she does and this would entail not giving away the power of caveat too soon.
Click to expand...

Well it sounds like if she doesn't then none of them will end up with anything.
 
NedKelly said:
The lawyer acts for the husband. If the husband directed the lawyer to go against a court order the lawyer should not allow it.
Click to expand...

The court order has nothing to do with the lawyer. If the client directs the lawyer to pay money into a savings account the lawyer must do it. For all the lawyer knows the client may be paying the wife directly.

If the court order directed the husband to sell the property and the proceeds placed into a trust account then it may be different. But it probably just orders the husband to pay the wife $xxx.
 
Terry_w said:
The court order has nothing to do with the lawyer. If the client directs the lawyer to pay money into a savings account the lawyer must do it. For all the lawyer knows the client may be paying the wife directly.

If the court order directed the husband to sell the property and the proceeds placed into a trust account then it may be different. But it probably just orders the husband to pay the wife $xxx.
Click to expand...

According to Rupert:-

My brother's half share will be made out to the ex-wife's solicitor's trust fund as per court order.

I cannot see any lawyer going against that.
 
I hadn't looked at the orders for a while, it just says:

Brother's half share from the proceeds to be divided xx% to the ex-wife and xx% to the brother.

I recall my solicitor saying something like that, that his half would be placed in a trust account for them to deal with but I guess it's not in writing. I would only assume it was the correct and legal way to close the issue. But now I get where you're coming from Terryw.

There's not really a lot of money leftover at all. I think her solicitor's fees ended up being more than what her share will be out of the sale of this IP.
She said she doesn't really want to deal with him any more... but I don't know if she has a choice All of us will still have to engage in a solicitor to make sure the order is followed through correctly one the IP is sold. I don't want anything to come back to bite me or my brother.

Cheers,
rupert11
 
Yep- the wife or ex wife has an equitable interest. The lawyer has lodged the caveat because as the ex wife -sounds like the property is still settling.
You would as Kristine advised stay out of it.

Yes, Family Law IS a DOOZY! Another reason to stay out of it!
Rupert you are very funny!
 
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