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2.Legal protection and remedies associated with securing shelter • Purchasing shelter (Freehold title) • This is ownership and right to control who occupies your house - Separate dwelling and shared space • Separate dwelling: Individual block of land containing houses that don’t join to other buildings. • Shared space (common property): Property that is not separate from the neighbours, e.g. Town houses where the walls adjoin. 1. A ‘company’s title’ was where blocks of units were built before 1961 • Company was created to buy the land and blocks of units • Each shareholder of the company has a right to live in a unit but no right of ownership to the land. LAW REFORM: 2. ‘The Strata title’ was created. - Owner can sell or lease their own property. • Ownership issues - covered by the Strata Schemes (Freehold Development) Act 1973 (NSW). • Management issues - covered by the Strata Schemes Management Act 1996 (NSW). • Property was divided into a lot. Each lot contained units. • These units would be units in: • Apartment blocks or town houses • Other parts of buildings, e.g. Garage • A share in the common property There are separate titles for each lot. • • Each owner buys a unit & has rights to sell, mortgage and lease it as if it were a separate dwelling. • The owners cooperation has control over shared spaces and takes responsibility for repairs. • However, the owner has to take responsibility for repairs of units. • Under the Strata Schemes Management Act 1996 (NSW), the Strata Scheme has ‘by-laws’ that cover potential problems, e.g. Noise... and offer solutions. These laws set out rules of expected behaviour by owners or occupiers to ensure peaceful coexistence in shared spaces. • Failure to comply means the owner or occupier receives a NOTICE to stop or change action. • Refusing to comply - Act encourages MEDIATION to solve disputes (through office of fair trading). • If mediation is unsuccessful, ADJUDICATION occurs, which has the power to make orders and settle disputes. • You can appeal adjudication by taking the case to the Consumer Trading and Tenancy Tribunal - Private treaty or auction • Private treaty is where the sale is negotiated between the purchaser and vendor, with or without a real estate agent. • Auction is when an auctioneer accepts the highest bid and acts on behalf of the vendor. LAW REFORM:

• In 2002, law stated that auctioneers must hold a valid license (granted under the Property, Stock and Business Agents Act 2002) • Aim is to protect vendors and purchasers from dishonest practices. - Systems of registration • In property law, ‘title’ refers to the rights of ownership. • Each piece of land has a title (document) to make sure people can prove they have rights over the property. 1. Under the Old System title, the selling and buying of land created a chain of ownership. • A deed (legal document, enforceable under the law) was drawn up each time land was bought and sold, which included the names of vendor and purchaser and a description of the land. • The series of deeds applying to a piece of land formed the documentary proof of ownership. • If one of those deeds was lost, the chain was broken and proof of ownership was gone. • If one deed contained false information, it was invalid and the chain was broken. LAW REFORM: 2. Torrens title replaced the old system and was introduced under the Real Property Act 1900 • Upon transfer of the property, the purchaser has the title registered at the Land Titles Office. • In 2011, state government removed this, introducing the Land & Property Information (LPI). • Once registered, the validity of the title cannot be questioned and the state, represented by the Registrar-General, will guarantee that the title is good - creates certainty for owners and buyers. • When property is resold, the purchaser has to check LPI’s records, get a copy of the title and learn facts needed about the land. • Records are computerised, easy to access. No one can turn up and challenge legal ownership. - Sources of finance • Money to buy a house is usually gained from mortgage. • The institution, e.g. Bank, owns the title deed until the borrower has paid off the mortgage in full. • Information on the financial history of an applicant is obtained both by asking the potential borrower and by investigating that borrower’s history through the Credit Reference Association of Australia (CRAA). • Any past bankruptcies, court orders for debt or non-payment of credit purchases is recorded and passed on to institutions who request the information. This can be seen as an invasion of privacy. • The Privacy Amendment (Enhancing Privacy Protection) Act 2012 introduced Privacy principles to protect consumers from misuse of their credit information. • Credit reports include credit information, including good things the owner has done. - Protection for buyers 1. A standard contract for the sale of property under the Conveyancing Act 1919 has been developed. • Both parties are assumed to have read and understood the details of the contract before signing. • LAW REFORM: The Contracts Review Act 1980 (Cwlth) allows the Supreme Court to change the terms of a contract or to cancel the agreement made on the grounds of unfairness.

• The courts look at whether the buyer and vender were equal in understanding the terms of the contract and their bargaining position. 1. Gazumping - The vendor agrees to the offer but then accepts a higher offer from another person. • Government attempted to ban this through reforming the Conveyancing Act, but was unsuccessful • BUT, once contracts are exchanged, there is a 5 day cooling off period giving the buyer a chance to back out after paying 0.25% of the purchase price to the vendor. • ARTICLE: “Gazumping on the rise - Sydney siders most at risk” (Daily Telegraph 2013).

ASSESS THE ROLE: Buyers usually receive more protection than vendors because vendors are in a more powerful position. They have possession and knowledge of the property. • Without legal protection, i.e. Conveyancing Act, Real property Act, contract review act, etc. The system of buying and selling homes could become corrupt. By protecting the system: • The law keeps a balance between vendor and buyer rights • Money flows since the market is kept active • The desire to renovate creates jobs in the building industry • This is good for the economy, thus it is in the best interests of the government to protect vendors and especially buyers.

*** • Leasing (leasehold title) • The tenant has the right to occupy the land. • This includes private rental housing, share houses and residential parks. - Rights and obligations of landlords Rights

Obligations

May rent to whoever they like, e.g. No smoker

Fill out condition report

Require the tenant to pay first 2 weeks rent upfront

Smoke alarms must be installed under the environmental planning and assessment amendment (smoke alarms) regulation 2006

If rent is 14 days behind +, landlord can give tenant a termination notice, giving them 14 days to leave

If they want the tenant to leave, they must give them a termination notice in writing

Can list tenant on tenancy database if tenant breaches the agreement

Cannot list tenant on tenancy database if they haven’t informed the tenant in writing

- Rights and obligations of tenants Rights When applying for property, they cannot be discriminated against.

Obligations Complete their part of the condition report and return to landlord within 7 days

Cannot be charged more than 4 weeks rent as a rental bond

Basic housework and maintenance, e.g. Changing smoke alarm detector

If tenant believes rent increase is excessive, they can apply to the CTTT

Pay rent on time.

Can end the lease early on the grounds of “undue hardship”, e.g. Serious illness

Seek landlord’s written consent before subletting the premises.

- Protection for tenants, landlords, boarders and lodgers LAW REFORM: The Residential Tenancies Act 2010 • The office of fair trading conducted a review of the tenancy laws. It released options paper for public comment which led to a report (Residential Tenancy law reform - a new direction). Negative views: Real estate institute of NSW: • “shifted the current imbalance… further in favour of the tenant” • Believed the law “has the potential to cause detriment to the NSW economy” The property owners association NSW: • Called the law “the biggest attack on landlords in NSW history” Positive views: Tenants union of NSW • Thought it was generally an improvement but is a “swing and roundabout” piece of legislation. One one hand, tenants has less security due to the 90 days eviction. However, reforms have enhanced tenants rights, allowing for further justice. PROTECTION: 1. Subletting • Landlord cannot unreasonably refuse to allow tenant to sublet 2. Disputes between co-tenants • Now, a co-tenant can terminate their own tenancy through the CTTT making orders. 3. Tenants breaking their lease early • Allows tenants to break their lease early in conditions without paying compensation. Circumstances include: tenant accepts an offer for social housing or aged care facility. • Tenants can break leases early by giving 14 days notice and paying a ‘break free’ 4. Use of tenancy database • Agents could not list a tenant on a database unless they inform them. Tenants could no nothing if they had wrongly been listed. • Now, the CTTT can resolve disputes about listings that are inaccurate or unjust

*** • Securing other types of shelter, such as:

- Aged care • Governed by the Age care act 1997 and covered by the Department of health and aging • This is a commonwealth scheme whereby usually old people required nursing support • In 2011, the productivity commission released a review of the aged care system called “caring for the older australians” 2011 - this found areas of ineffectiveness, including: • Limited services available and lack of choice • Government response: aged care (living longer living better) act 2012 - Residential parks • Includes caravan parks where people have long-term accommodation. • Under the residential (land lease) communities act 2013 reformed the residential parks act 1998. Improvements include: • Rules of conduct and sanctions for those who don’t comply • Making and amending rules is now more controlled by people who live their - Squats • People who have no legal rights/protection. They’re committing an offence by living on property that is not theirs without consent. The Inclosed Lands Protection Act 1901 (NSW) makes this illegal. • The owner must use reasonable force to remove them ***

• Dispute resolution mechanisms & the roles of: • Legislation tries to prevent disputes by setting out the rights and responsibilities of all parties. • Community justice centers are a cheap & effective way of settling disputes through a mediator. - Courts and tribunals • Courts: When buying or selling a property, a contract will specify the rights and obligations of the purchaser and vendor. If one party fails to fulfill any of their obligations, then the other party can sue for breach of contract. • Tribunals are less formal institutions and are therefore used in dispute resolution. • The Consumer, Trader and Tenancy Tribunal (CTTT) settles disputes arising over shelter. • Under its Act, the Tribunal is encouraged to use alternative dispute resolution as the first step in resolving disputes. If conciliation and mediation do not work, the Tribunal will hear the matter and make decisions about how to end the dispute. • Proceedings are usually conducted without legal representation. Its informality aims to put the parties at ease so that they can calmly discuss the situation. A decision by the CTTT is called an order and is legally binding. - Alternative dispute resolution • Mediation: Process whereby the parties voluntarily choose to sit down together with an independent mediator. - Faster, cheaper and less stressful than going to court or a tribunal. • Neutral evaluation: An evaluator, neutral and independent, analyses the issues. They act as a guide to resolve the dispute by assessing the strengths and weaknesses of each party’s case.

- Government organisations 1. The home building service: • The Office of Fair Trading’s Home Building Service oversees and controls the quality of the building industry in New South Wales • The Office of Fair Trading takes complaints from the public about the standard of work or behaviour of a licensed worker. If justified, it will attempt to resolve the problem by ordering the worker to correct the situation or by sending another builder to complete the work. If the complaint cannot be resolved it may be referred to the Consumer, Trader and Tenancy Tribunal. 2. The NSW department of planning • Councils have often taken many months to read plans and make a decision about approval, leaving the home-owner unable to proceed. In 2009 the New South Wales Department of Planning created a new Housing Code to allow some minor work for additions to homes to be carried out without council approval, putting this type of work into a category called ‘Exempt Development’ work. The result of this reform is that it is no longer necessary to obtain permission to do minor work on a private property. 3. Rental Bond Board • A bond is an amount of money paid by the tenant at the beginning of the lease. • The role of the Rental Bond Board is to hold the bond for the period of the lease and to return it to the tenant at the end of the lease. The Board will return the bond if the premises are left in the condition in which they were found at the beginning of the lease. • CASE: Bhatt v Skyton Holdings 2009 - The CTTT decided that Bhatt’s bond would not returned due to the damage he had caused in the property. • The Consumer Trader and Tenant tribunal (CTTT) provides an independent, low cost and accessible dispute resolution forum to the people of NSW who are in consumer or tenancy disputes. • The CTTT can provide governments with an indication of the main disputes between landlords & tenants and areas that may need law reform due to the frequent nature of those types of disputes. • The CTTT can be a starting point for Tenants/Landlords to lodge complaints against their Landlord/Tenant, but to put forward points of the law that need law reform for lobby groups/ media organisations to investigate. • International mechanisms such as the UN aim to implement treaties to ensure all individuals have access to shelter - however there is a general lack of funding which impedes its effectiveness. • The absence of enforceability means UN cannot ensure states comply with international treaties. • Effectiveness of international treaties can be seen through the development of laws that reflect treaties. • Asylum Seekers Assistance Scheme (ASAS) was created in 1992 by the Australian Government to address Australia's obligations under the United Nations 1951 Convention Relating to the Status of Refugees. • The UNHCR (United Nations High Commissioner for Refugees) provides emergency shelter for refugees living in extreme climates.

- Non-governmental organisations • Salvation Army and the Wesley City Mission, provide emergency housing assistance for those who find themselves without shelter. • NGOs that provide assistance to tenants include: Tenant’s Union - formed in NSW to advise tenants of their rights and to help them if a dispute with their landlord is brought before the Consumer Trader and Tenancy Tribunal. • National Shelter is a national organisation, which aims to improve housing access, affordability and security for those who are on low-incomes. It does this by influencing government policy and action, and by raising community awareness. • Aboriginal Housing Act 1998 (NSW) provides for an aboriginal housing office to coordinate the supply of housing for Aboriginal people in NSW. • The Women’s refuge program provides shelter for women fleeing domestic violence. • Matthew Talbot Hostel provides shelter for homeless men in NSW. Over 35 600 men are assisted each year - effective on meeting society’s needs, protection of individual rights and responsiveness. Ineffective in resource efficiency as it relies heavily on donations. - The media • Exposing offenders, using public humiliation to deter behaviour. • Highlights a legal issue, and push for law reform. • Cannot reform the law, however can use its power to shape public opinion, putting pressure on law-making agencies for law reform. • For example, often a current affair programs display stories about “tenants from hell” highlighting the landlords unjust situation. This emphasises the need to increase landlords authority to evict unwanted tenants to the public audience. • However constant use of the media may result in in ‘compassion fatigue’ thus ignoring the issue

3.Contemporary issues concerning shelter - Affordability • The price of shelter is largely determined by the economic principle of supply and demand. In those areas where shelter is in short supply but demand is high, prices will be also be high. • The high cost of shelter combined with the global financial crisis of 2008–2010 led the federal and state governments to increase the amount of assistance available to people seeking shelter. The First Home Owner Grant Scheme is a national scheme that is funded and administered by the states, together with the Commonwealth Boost Scheme. It aims to help people who have never owned a home to enter the housing market. Larger grants are given to individuals who build a house as opposed to buy an already built house as it fosters an increase in jobs, thus stimulating the economy. • Housing New South Wales introduced a Mortgage Assistance Scheme in 2008. This scheme provides help for people who are experiencing difficulty in meeting mortgage payments, in the form of an interest-free loan, where the amount owed on the home is under $350000 and the total household income is less than $90 000 per year. Mortgage assistance is worth up to $20 000 over 12 months. It is a scheme of last resort; to be eligible, the home owners must be in serious

financial difficulty caused by unavoidable changes in circumstances, and in danger of losing their home. • Rental assistance is also offered to low-income earners. Rentstart provides financial aid to help pay the bond and to pay advanced rent. To be eligible, a person needs to be a citizen or permanent resident in Australia, more than 18 years old, and have less than $1000 in savings. • Long-term assistance is also provided by the federal, state and territory governments under the National Affordable Housing Agreement (NAHA). This agreement, was initially set up under the Commonwealth and State Housing Agreement Act 1945 (Cwlth). • Social housing, including public housing, cooperative housing and community housing owned by the state government, is leased to the public at lower rents than would be paid on the private rental market - Discrimination • Refusing to make a person a tenant due to prejudice is an act of discrimination and in breach of the Anti-Discrimination Act 1977 (NSW). • The Equal Opportunity Division of the Administrative Decisions Tribunal hears cases of discrimination and can fine an offender. - Homelessness Australian Bureau of Statistics + 2006 Census = over 100000 homeless people in Australia • The federal government has made homelessness a focus of its planning and funding. It has set up Homeless Australia - aims to create a framework for ending homelessness. Reforms are planned. • $10 billion has been committed by the federal gov from 2009 to the National Affordable Housing Agreement • $800 million over 5 years for services to the homeless • $1.94 billion over 10 to improve the quality of indigenous housing • $400 million over 2 years for social housing.

OVERALL EFFECTIVENESS OF SHELTER: - Enforceability: - Enforcing laws that prohibit discrimination are positive however can be hard to prove and occurs under private rental market. - Resource efficiency: - There has been a reduction in public housing funding and assi...