Sunday, October 10, 2010
Optional Focus Study 3 – Shelter – Michael Atteya
o Real property means land and anything attached to the land.
o Freehold means legal title to land so that the freeholder can sell, lease or build on the land.
o Possession means actual physical control of the land.
o Lease hold or tenancy means having permission from the freeholder or Crown to possess the land for a period of time.
o Crown land is land that does not belong to anyone and thus belongs to the government or Crown.
o Adverse possession means gaining legal entitlement to land by occupying it for a period without legal entitlement.
o Squatting is deliberately taking unauthorized possession of vacant land or dwelling.
o The right to shelter is recognised as an international human right under the United Nations Declaration of Human Rights, 1948.
o Though it is not recognised as a human right in Australia, all political parties are committed to providing adequate shelter for all.
o There is a significant number of homeless people in Australia. 100 000 in 1996.
o The steps to buying a house or unit are:
Find the property you want and apply for a loan.
Exchange contracts and pay the deposit
After the exchange of contracts there is a five-day cooling-off period during which the buyer can change his/her mind
Arrange for a building inspection and a pest inspection.
Pay stamp duty and arrange insurance
Make settlement and move in.
o There are two types of freehold title:
Old systems title
o Old systems title:
Under this title a chain of title has to be established for at least thirty years by gathering past deeds transferring title.
Much of this title has now been converted to Torrens title.
o Torrens title:
Introduced in NSW in 1862 and provides and easier system for registering title than old systems title.
Under this title the title merely has to be registered with the Lands Office for perfect title to be received.
o Leasehold title gives the right to occupy a property for the period of the lease. The freehold or ownership of the property remains with the landlord of the property.
o Houses and units are bought and sold through a contract of sale governed by the Conveyancing (Sale of Land) Amendment Act 1990 (NSW).
o Sellers of real property must have a contract for the sale of the property prepared and available for inspection before putting it on the market.
o The contract must be in writing, name the parties, name the price and must have a description of the property.
o Sellers must provide zoning certificates, a sewage diagram and any documents pertaining to easements, covenants and details of future government plans.
o Exchange of contracts takes place when the buyer decides to buy the property and hands over a deposit. Both buyer and seller sign the contract.
o Conveyancing means transferring the property from the vendors name to the buyers name.
o In NSW conveyancing can be done by a solicitor or by a licensed conveyancer under the Conveyancers Licensing Act 1992 (NSW).
o People can do their own conveyancing.
o Gazumping occurs when someone thinks they are the buyer of the property, only to find that the vendor has another buyer. Gazumping can be quite costly
o Settlement takes place when the whole transaction is completed and the property is completely paid for.
o During the period before settlement, conveyancing is arranged.
o Most people who buy their own homes in Australia have to borrow a considerable amount of money to do so.
o The usual way of borrowing money to buy housing is through a credit provider, such as a bank, who will arrange a mortgage on the property being bought.
o When a property is mortgaged the credit provider can sell the property if the borrower fails to make repayments on the loan.
o Borrowers also usually have to save a substantial deposit before they can get a loan.
o Credit contracts for home purchase are governed by the Consumer Credit Code introduced by the Consumer Credit Act 1995 (NSW).
o The Fair Trading Tribunal can alter credit contracts.
o Difficulties people have financing a home purchase and government responses to these difficulties include:
Saving a deposit: The First Home Owners Scheme gives $7000 grants to first home buyers.
Unemployment, illness or other hardship in paying a mortgage: The Fair Trading Tribunal can vary credit contracts because of hardship for amounts less than $125 000. In serious cases the NSW Mortgage Assistance Scheme can provide a loan of up to $10 000.
Over-commitment of borrowers: The Fair Trading Tribunal (FTT) can vary a contract if the credit provider knew the borrower wouldn't be able to repay.
High prices and interest rate: Governments attempt to control inflation and interest rates.
Unfair contracts: these can be changed by the FTT.
o Strata title is the most usual title for owning a home unit. It replaces company title.
o The Strata Schemes Management Act 1996 (NSW) governs the operation of strata schemes in NSW.
o Owners' corporations are made up of all the owners in a block of units. The owners' corporation elects a committee annually to make decisions about the administration of the block of units.
o By-laws cover many aspects of day-to-day living in home units, such as use of laundry facilities and keeping pets. Some by-laws can be changed by special resolution of the owners' corporation.
o The owners' corporation also collects levies from owners to pay for maintenance, insurance and special projects.
o A lease creates and defines the relationship between a landlord and a tenant.
o A tenant pays a regular sum of money, called rent, for being allowed to occupy the dwelling.
o Under the Landlord and Tenant (Rental Bonds) Act 1977 (NSW), an additional sum of money, called a bond, is paid by the tenant when he/she first enters the premises. This can be paid to the landlord if the tenant leaves the premises damaged or with rent owing.
o The Residential Tenancies Act 1987 (NSW) governs the relationship between tenants and landlords.
o The Consumer, Trader and Tenancy Tribunal (CTTT) hears disputes about bonds and tenancies and makes orders to resolve disputes.
o The rights and duties of tenants are contained in the Residential Tenancies Act 1987 (NSW).
o The rights of tenants include the right to:
Have quiet enjoyment of property
Have clean, vacant premises
Have secure, lockable premises
Have repairs carried out, including urgent repairs up to $500 in value without the landlords permission
End the agreement within 21 days notice or 14 days for a fixed term lease.
o The duties of a tenant include the duty to:
Pay rent on time
Use the premises for legal purposes
Keep the premises clean and in good repair
o The rights and duties of landlords are contained in the Residential Tenancies Act 1987 (NSW).
o The rights of landlords include the right to:
Enter the premises with the tenants permission or in an emergency
Have premises left clean and undamaged
Choose tenants without discrimination
Have the repairs carried out, when the tenant has caused the damage
End the agreement with 60 days notice
o The duties of landlords include the duty to:
Make premises secure
Have premises clean and habitable
Keep the premises in good repair
o Tenants experience many problems including:
Lack of security of tenure: as they may be evicted with a minimum of 60 days notice without a reason
Difficulty in having repairs carried out: as many landlords are reluctant to spend the necessary money
High rents: though rental assistance is available to low income earners through Centerlink
Rent increases, which can be made by the landlord with 60 days notice if they are not excessive
Discrimination by landlords, which can be very hard to prove
Unequal bargaining power, as landlords can choose tenants and fix the amount of rent and the term of the lease.
o The Tenants Union of NSW and the CTTT can assist tenants in disputes with landlords.
o Public housing is housing owned by the government that is rented to those in need of accommodation.
o The rights and duties of tenants and the landlord (NSW Department of Housing) are the same as for private tenants with some exceptions, such as:
Public housing tenants must be given a valid reason for eviction
Tenants may be asked to move if their premises are under-occupied
Tenants may not hang washing on balconies
Tenants must give the department details of income to make sure they are eligible for public housing.
o Over the last decade public housing waiting lists have been increasing.
o Boarding houses are generally not regulated by the law. Those that house disabled people must be liscenced under the Youth and Community Services Act 1973 (NSW).
o In hotels and hostels the rights of residents are generally not protected by the law.
o In caravan parks the rights of the residents are protected under the Residential Parks Act 1998 (NSW).
o In community housing associations, the rights of the residents are protected under the Residential Tenancies Act 1997 (NSW).
o Emergency accommodation is available to people with nowhere to go. It is often free but is difficult to get into because of high demand. It cannot give long-term shelter.
o Supported accommodation provides care and/or meals for people who cannot properly car for themselves.
E.g. Group homes for the disabled and Retirement villages
o Retirement villages are governed by the Retirement Villages Act 1989 (NSW) which protects rights of residents.
o Aged care facilities are governed by the Aged Care Act 1997 (Cth). They provide care and secure accommodation but are sometimes inadequately monitored.
o Group homes for the disabled are licensed and supervised by the NSW Department of Ageing, Disability and Home Care under the Youth and Community Services Act 1973 (NSW).
o Inevitably, disputes occur between neighbours, especially when they live in close proximity to each other such ads in high-rise apartments. Types of disputes include:
Excessive noise: this can be controlled by noise abatement directions issues by police
Smoke and smells: these can be eliminated by approaching your local council under the Protection of the Environment Operations Act 1997 (NSW)
Dividing fences: these disputes are resolved by the local court under the Dividing Fences Act 1991 (NSW).
Animals: local councils can control barking and wandering dogs and can have dangerous dogs destroyed
Trees: the care and removal of trees are controlled by local councils.
o Disputes between neighbours are best resolved through self-help or community discussion.
o Community Justice Centres can mediate in such disputes.
o Local councils can make orders about a wide range of matters, such as tree lopping, burning rubbish and control of pets. However, complaining to the council can cause ongoing antagonism.
o Police can issue noise abatement directions and the Environment Protection Authority can make orders relating to smoke and smells.
o Court action should be seen as a last resort for disputes between neighbours because it is expensive, time consuming and can irreparably damage relationships between neighbours.