Optional Focus Study 3 – Shelter – Michael Atteya

Shelter

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.

  Arrange conveyancing

  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

  Torrens 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.



Michael Atteya