Is it possible to sell real estate before property settlement has been finalised

Learn the risks and procedures of selling assets during property settlement. Ensure compliance and avoid legal issues. Contact us for personalized legal advice.

Property settlement deals with all assets and liabilities held in the parties sole or joint name. Therefore you should not unilaterally try and sell or dispose of an asset unless it is agreed by the party or there is a risk you will be accused of diminishing or reducing the asset pool.

Any assets that are sold need to be fully accounted for even if you are selling a lawnmower on Gumtree or similar so you need to make sure you ideally should agree with the other party what will be sold and for how much but should at least provide evidence of the funds received and what they have been used for although it is preferable that the funds are held either in a joint account for the parties or in the trust account of a solicitor pending the final agreement.The parties can agree to sell any asset and the preference would be that the agreement be in writing or that there are Orders reflecting the agreement, how the sale will happen and what will happen to the net sale proceeds if the case is already in Court.

If one party only is on the Title for a real property they technically can sell the property at any time but the risk if they attempt to do so, is that the other party may discover the sale listing and assert that they have an equitable interest in the property and either lodge a Caveat against the property with the Titles Office which prevents its sale unless the Caveat is removed or file an Initiating Application seeking an injunction preventing the sale or at least to have the sale proceeds looked after in a solicitors trust account.

If because of financial reasons it is essential that a real property be sold urgently, it is advisable to always contact the other party to try and reach an agreement even if you are the only person on the Title otherwise you risk costly legal proceedings when otherwise the matter may be capable of being settled by consent or at a Mediation.If you cannot reach an agreement you should consider filing an Initiating Application seeking Orders for sale rather than taking a unilateral decision to do so.

If you are seeking legal advice specific to your matter, contact us on 07 2113 4645 to schedule your initial consultation with one of our Solicitors.