Shared Common Driveway - Cross Leased - Advice needed

[Jackflash]

My elderly father purchased a unit on a cross leased property back in 2004. The other unit on the land is owned by a Family Trust. There is a shared common driveway. The driveway was in terrible disrepair and needed fixing.

Costing was sought and a family member (on behalf of my father) approached one of the Family Trust members from the other unit to discuss the driveway needing maintenance. This member of the Family Trust stated that they were going to put their unit on the market for sale and that "doing up" the driveway was a great idea so that it would have more sale appeal. This member said that after the sale of the property, the half share of the driveway repair from the Family Trust would be reimbursed to my father. The Family Trust member stated that she didn't want to sign anything as it looked too confusing and was happy to just give a verbal agreement.

My father paid for the driveway to be repaired.

The unit is close to a sale.

What rights or legal avenues does my father have at getting reimbursed the money he has paid out on the new driveway if the Family Trust Members next door decide to not reimburse him?

What can he do?

[Ivan McIntosh]

My elderly father purchased a unit on a cross leased property back in 2004. The other unit on the land is owned by a Family Trust. There is a shared common driveway. The driveway was in terrible disrepair and needed fixing.

Costing was sought and a family member (on behalf of my father) approached one of the Family Trust members from the other unit to discuss the driveway needing maintenance. This member of the Family Trust stated that they were going to put their unit on the market for sale and that "doing up" the driveway was a great idea so that it would have more sale appeal. This member said that after the sale of the property, the half share of the driveway repair from the Family Trust would be reimbursed to my father. The Family Trust member stated that she didn't want to sign anything as it looked too confusing and was happy to just give a verbal agreement.

My father paid for the driveway to be repaired.

The unit is close to a sale.

What rights or legal avenues does my father have at getting reimbursed the money he has paid out on the new driveway if the Family Trust Members next door decide to not reimburse him?

What can he do?

The cross leases may have provision for your father to recover the money. Depending on how much it was, he could launch a Disputes Tribunal claim (unless the family trust acknowledges it is liable, but just refuses to pay...in which case there isn't a dispute as such) under the leases.

To help himself, he could send through the invoices for the driveway to the neighbour and ask them to confirm they'll be paying half across. Btw, that could be a long time in the future if they decide not to sell, as your Dad's agreement with them was that they would only pay on the sale of their property.

[Nice]

Consult a lawyer and seek to have a caveat lodged against the other property based upon the agreement to pay the driveway costs. You might find the money forthcoming quite quickly then !

[Ivan McIntosh]

Consult a lawyer and seek to have a caveat lodged against the other property based upon the agreement to pay the driveway costs. You might find the money forthcoming quite quickly then !

Good idea, but that's not a basis for a caveat. They have to have agreed to grant you an interest in their property (to secure payment, in this instance), not just agreed to pay you some money.

If a lawyer puts a caveat on for a debt without any agreement that the debt be secured against the property, that's pretty good evidence they're either unethical or incompetent.

I had a think about various constructive trust arguments for a caveat, but I don't think they fly. If you get judgment for a debt you can apply to put a charging order on the property, which amounts to roughly the same thing....but you have to get that judgment first.

[donthatetheplayer]

A verbal agreement is still an agreement. Document everything your father can remember. I agree with Ivan. Send through costings and request confirmation in writing they will pay their share. If they're not forthcoming with confirmation I'd mention caveats, lawyers, talking to the RE Agent etc...

It will be difficult to enforce a verbal agreement with no proof beyond your fathers word so the best time to get confirmation from them is now, before they have a signed S&P in place.

[John the builder]

If a member of a cross lease is claiming against another member of the lease does this have to be disclosed by the vendor like a disclosoure statement in a body corporate?

[donthatetheplayer]

If a member of a cross lease is claiming against another member of the lease does this have to be disclosed by the vendor like a disclosoure statement in a body corporate?

I think this is where this situation gets curly John. The agreement seems to be personal. The claim is against the individual, not the property... I don't think liability would be passed on to the new owner.

If the claim was formally made against the other lessee under the terms of the lease I expect disclosure would be required and liability would be passed on.

[John the builder]

make it a formal claim then?

This becomes a claim on the owner at the time and if the real estate agent is aware they may have to disclose this as well?

JF is the property listed?

If I was the vendor i would want this dealt with toot sweet so as not to complicate a sale with a written agreement to cover it at settlement.

[Ivan McIntosh]

make it a formal claim then?

This becomes a claim on the owner at the time and if the real estate agent is aware they may have to disclose this as well?

JF is the property listed?

If I was the vendor i would want this dealt with toot sweet so as not to complicate a sale with a written agreement to cover it at settlement.

I think that if a contribution is required under the cross lease document then it would arguably run to the new owner in legal terms...but you can bet it would be a hard road getting anything out of them in practical terms. If there is nothing under the lease document, then its a personal debt.

Vendor warranties (see clauses 6.1 and 6. would catch a notice demanding payment of contributions to the driveway...it would be a breach of the agreement for the vendor not to advise prospective purchasers. Your best bet, incidentally, is to make sure the agent selling the property is aware of it. They are more likely (touch wood) to make a puchaser aware of the problem.

Minor side point: Tout suite, not toot sweet...it's from the french "tout de suite", meaning immediately

[John the builder]

(thanks for the edification)

from that if the claim isnt made now then the Vendor can claim ignorance?

'Tout suite' for now (actually that isnt the right context either right?)

[Ivan McIntosh]

(thanks for the edification)

from that if the claim isnt made now then the Vendor can claim ignorance?

'Tout suite' for now (actually that isnt the right context either right?)

Nope

Without something in writing, the vendor would not be in breach of warranty for failing to disclose a "notice", as all notices have to be in writing.

However the warranty section 6.1(1) uses this language:

Has not received "any notice or demand and has no knowledge of any requisition or outstanding requirement......from any other party...which directly or indirectly affects the property.."

A demand is not specified as having to be in writing, and perhaps we could also use "outstanding requirement". So the Dad could perhaps make a verbal demand for payment, and the vendor would be obligated to disclose. However the difficulty, as always, lies in proving a verbal demand was made. Giving a notice or demand in writing is always, ALWAYS, far preferable, and without one you could expect the vendor's memory to become conveniently cloudy.