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Real Property Protection Upon Relationship Breakdown

September 04, 2020 by Douglas McMillan

When relationships breakdown, whether marital or defacto, questions arise about what are a party’s legal rights with respect to property that they do not legally own, such as a home in which the other party is the sole proprietor (i.e. the legal owner of the home or other real property).  The person who is not registered on the title often asks how they can protect their interest, if they have any, in the real property.

People who are in acrimonious breakdowns often quickly file a court proceeding in which they seek injunctive (prohibitive) orders to be put in place by a court to restrict how the legal owner of the property deals with the property until the court proceeding is determined, or there is agreement between the parties.

In many cases, people seek to avoid court due to legal costs and the negative impact such legal proceeding may have on their families, and thus negotiations take place over a substantial period of time to endeavour to resolve such dispute.  In these cases, the issue is regularly raised whether a caveat should be lodged so as to register the non-owner party’s interest in that property, and importantly, that the non-owner and third parties are on notice of any dealings with the property while such negotiations are underway.

There is no automatic right to register a caveat against a property unless there is a legal right to do so.  Filing a court Application regarding relationship breakdown does not give an automatic right to caveat real property.  Serious cost consequences may result if a caveat is registered against a property without the proper grounds to do so.

Given the complexities of federal and state laws interacting, it is important to promptly obtain legal advice to address all relevant circumstances to ascertain a party’s position.

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