Definitions

Social Housing: affordable and secure housing provided by Housing NSW for low to moderate income earners who meet specific eligibility requirements

Crown Land: land held under permit, licence or lease; reserves managed by the community; lands of environmental value kept in public ownership; lands used for Crown public roads; and other unallocated lands

Torrens Title: the central registration and transfer of ownership of property

mortgage: a type of loan whereby the property being purchased is used as collateral in case the borrower fails to meet the repayment obligations as set out in the home loan contract

covenant: a restriction on a property that is part of the title; an example is a restriction not to build any structure or fences above a certain height

standard contract for sale: the contract for sale used to buy and sell in New South Wales; contracts must contain minimum standard terms

auction: a public sale in which people bid for goods or property, and the sale is to the highest bidder

strata scheme: a detailed pictorial description of lots within a strata complex; this includes the outlines of the buildings, the dimensions of each lot, the details of each unit entitlement and the common property

common property: the areas in a strata scheme building or property that are owned jointly by all the lot owners, rather than being part of an individual lot

Conveyancing: the legal process used to transfer title of ownership from one party to another

Private Treaty: when the sale of a property is carried out directly between the vendor and buyer; usually completed with the assistance of a registered real estate agent

Local Environment Plan (LEP): a document prepared by a local council, and approved by the state government, to regulate the use and development of land within the council’s control

Easement: a right of someone other than the property owner to use the property for certain purposes

Exchange of contracts: when the vendor and the buyer of the property exchange signed copies of the contract for sale

Settlement: when final payment for the purchase of the property is made to the vendor, and the purchaser receives the title

Common Law/Old System Title: a system of registration and transfer of ownership of property in use in New South Wales; under this system an unbroken chain of title is required to be proven to establish title to the property

Chain of Title: a series of deeds under the Old System title, used to establish the ownership history of a property

Deed: documentary proof establishing ownership of a property

Good Root of Title: when the Old System chain of title has not been broken through the loss of one or more of the previous deeds of sale

Indefeasible Title: title that has been transferred to the new owner, and will not be changed except under very limited circumstances

Owners’ corporation: a group consisting of all the lot owners within a strata scheme

Executive Committee: an elected subgroup of the owners’ corporation, which makes decisions about the management of the common property and other areas of concern that affect all residents

Arrears: money that is owed but has not been paid

Gazump: buy a property for which the vendor has already reached a verbal agreement with someone else, by offering a higher price

Residential Lease: an agreement between the owner of a property (landlord) and the person who is renting it (tenant)

Condition Report: an inspection checklist of the state of the premises signed by both landlord and tenant prior to the tenant moving in

Accommodation Bond: a payment made by nursing home residents to secure a place, which is partially refunded when they leave the home

Accommodation Charge: a daily amount payable by nursing home residents who require ‘high care’

Housing Affordability Index: a key indicator that reports on the relationship between household income, mortgage costs and the price of housing

Community Housing: secure and affordable rental properties for people who earn a low income and who have a housing need; homes are provided by not-for-profit community housing organisations

The Definition of Shelter

Shelter is a fundamental human right,

Types of Shelter

Shelter in International law

The global community has recognised the right to shelter in many international treaties and declarations. (See table below). Nation’s abilities to provide adequate housing to their citizens varies, along with their commitment to their international obligations.

Shelter in Australian Law

There is no right to shelter in Australian Law, but Australia is a signatory to many multilateral treaties that confer shelter as a basic human right. There is obligation to ratify these, but the federal government faces many constitutional restraints that prohibit it from legislating in many areas concerning the provision of shelter and the rights and responsibilities of individuals that flow from this.

Obligation to provide shelter

Despite the lack of responsibility in domestic law to provide shelter, all Australian federal, state and territory governments acknowledge the obligation to provide shelter. The NSW government has developed numerous housing policies through Housing NSW. They can provide assistance to first home buyers, rental assistance for low-income households and provide public housing as well.

Types of Shelter

There are two main categories of shelter; private housing, acquired by individuals, and public housing, provided by the government.

Legal Protection and remedies associated with securing shelter

Purchasing Shelter

The legal process for purchasing shelter: conveyancing. The legal process to transfer title of ownership from one party to another, ensuring the new title is registered at the Land Titles Office and that certain applications are met by the vendor and the buyer. Under the Conveyancing Act 1919 (NSW) and Conveyancing (Sale of Land) Regulation 2017 (NSW), conveyancing in NSW can be carried out by a solicitor or a para-legal ‘licensed’ conveyancer. Licensed conveyancers must be covered by indemnity insurance. A person can do the conveyancing themselves, but they will have to bear costs if something goes wrong. e.g. the property being purchased can be affected by limitations put on it by government authorities or local councils, through their Local Environment Plan.

Separate Dwelling or shared space

Separate dwellings - homes put on individual lots that do not conjoin with other buildings. There is one title to the property.

Larger lots can be subdivided into separate titles, usually more expensive than shared space. However, they allow owners greater options to carry out renovations and landscaping.

Private Treaty or Auction

Buying and selling property can happen in two ways. Private treaty or auction. Both are regulated and require a standard contract for sale, to be used in the selling process.

Private Treaty

A private treaty is when the sale of a property is carried out directly between the vendor and buyer, generally with the assistance of a registered real estate agent. When a property is sold through private treaty, the price of the property will be advertised through the real estate agency, and potential buyers may inspect the property, and examine the contract, before making an offer.

Auction

An auction is a public sale, in which goods or properties are sold to the highest bidder. When buying through an auction, the buyer is usually competing against a number of potential buyers. The vendor will set a reserve price, as the lowest price they are willing to sell at. The auctioneer or agent is not required to accept the highest offer if it fails to reach the reserve price. If this happens, the vendor may wish to enter negotiations with the highest bidder, in a form of private treaty. If the reserve price is reached, the successful bidder will exchange contracts with the vendor, and must hand over 10% of the purchase price immediately.

Contract for Sale

All contracts must be in writing, under section 54A of the Conveyancing Act 1919 (NSW), and must be prepared before a residential property can be advertised for sale. Some standard requirements include a number of disclosures that must be made by the vendor, under section 52A Conveyancing Act 1919 (NSW), and under section 129 of the Environmental Planning and Assessment Act 1979 (NSW) a zoning certificate that provide information about planning controls or property affectations that relate to the land must be included.

The contract must also include a copy of the property certificate, allowing the title to be search at NSW Land Registry Service. A drainage diagram showing sewer lines on the site map and an official plan of the land will also be included.

Under the Conveyancing (Sale of Land) Regulation 2017 (NSW) there must be disclosures in relation to easements and covenants attached to the contract for sale.

Systems of registration

There are three different land titling systems in NSW: Crown land, Old System Title, and Torrens title. Properties may also be affected by title for shared space, such as company title, strata title and community title.

Crown Land

More than half the land in NSW is made up of Crown land. According to NSW Land Registry Services, Crown land can comprise:

• lands held under lease, license or permit

• community managed reserves

• lands retained in public ownership for environmental purposes

• lands within the Crown public roads network

• other unallocated lands

Many non-tidal waterways also comprise Crown land, as does most tidal waterway land. The Crown Land Management Act 2016 (NW) is the main piece of legislation that regulates the registering and managing of Crown land. This Act includes mechanisms for community consultation about the management of Crown land. It also clarifies and streamlines the system of tenure that exists concerning the use of Crown land.

Old System Title (or common law)

Dating back to English common law, it was the original choice of land management used by colonial authorities to register, record and transfer land ownership. It was used in NSW until 1863, when it was replaced by Torrens Title.

Under the Old System title, when a vendor sold land to a buyer there was a need to establish a chain of title, proving ownership. This would be demonstrated by a series of deed, one for every time the property was sold. Each deed contained a description of the property, and identities of the previous vendors and buyers. If this can be established, it is said that a ‘good root of title’ exists, as the chain as not been broken.

Under the Conveyancing Act 1919 (NSW) ‘good root of title’ only needs to be established thirty years back for the sale to go ahead.

A small percentage of land in NSW, mostly properties sold before 1900, is still registered this way, but it is quickly dying out.

Torrens Title (or Real Property Act 1900)

The Torrens title system was introduced in 1863, and the passing of the Real Property Act (1900) greatly improved land management in NSW. Properties under the Torrens title system are assured that the title is recognised by the state, and hence people can buy and sell under the system with confidence. Selling and buying land ownership is completed through transferring the title, rather than using previous deeds. Once it is transferred to the new owner, the buyer has indefeasible title, meaning the title is said to be perfect and there are very few circumstances that this would be changed for.

Company Title

A system of registration used for documenting ownership of shared space, such as flats. Used prior to the first NSW strata title legislation in 1961. There was no separate title registration to ownership of specific flats, the owners of the building set up a company in which individual owners possessed shares that allowed them exclusive possession of a particular part of the building. The disadvantage of this system is that the person would have to get approval from the other shareholders before selling their share, and banks were reluctant to lend finance to properties in this system. However, owners could have an influence in their neighbours.

Strata Title

The strata scheme management system was introduced in 1961. The Strata Schemes Management Act 2015 (NSW), which replaced the earlier Strata Schemes Management Act 1996 (NSW), allows a parcel of land to be subdivided into lots to be sold separately. An owner of one of these lots has their own separate title to their property, and can live in the property or rent it out. The airspace above is also subdivided, and areas of common property must be clearly identified. Each member has their own title but all residents are responsible for and have access to common areas.

A strata plan is a diagram of the strata complex, showing details of all the individual lots. It includes outlines of the buildings, dimensions, details of each unit entitlement and the common property. Any notifications and encumbrances affecting the plan will also be noted.

Unser the Strata Schemes Management Act 2015 (NSW), the owners of the properties make up what is referred to as the owners corporation. They must elect an executive committee to make decisions about the management of common property and similar areas of concern.

The executive committee has to ensure that residents contribute to two funds to ensure the upkeep of the property, as well as to meet legal and financial requirements.

Capital Works Fund: set by the owners corporation to ensure there are sufficient finances to cover ongoing capital works on the property, including things all properties will need to attend to over time, such as painting and repairs to roofs, gutters and driveways. All strata schemes in NSW must have a 10-year capital works fund to ensure effective planning and management.

Administrative Fund: Fund to provide for the regular upkeep and recurrent expenses. such as garden and lawn upkeep.

When the Strata Schemes Management Act 2015 (NSW) and the Strata Schemes Development Act 2015 (NSW) replaced earlier legislation, the aim was to modernise and make more flexible strata schemes; introduce more transparency and accountability; and clarify issues around collective sale and renewal, maintaining the building condition, owner renovations, proxy voting, by-laws and tenant participation. It also updated regulations concerning levies, capital works funds and dispute resolution.

A relatively recent issue has been the matter of people offering their premises for short-term rental on platforms such as Airbnb. In the case of Estens v Owners Corporation SP 11825 [2017] NSWCATCD 52, the owners’ corporation tried to block Ms Estens from letting her unit on Airbnb when she was away. The court found this infringed on Ms Estens’ rights under the Strata Schemes Management Act 2015 (NSW). In 2018 the NSW parliament passed the Fair Trading Amendment (Short-term Rental Accommodation) Act 2018, which provided for amending the Fair Trading Act 1987 to introduce a Code of Conduct for the short-term rental accommodation industry. It also had an amendment to the Strata Scheme Management Act 2015 which allowed owners’ corporations to block short-term letting if the unit was not the owner’s principal place of residence.

Community Title

Sources of Finance

Mortgages

Credit Reporting

Protection for Buyers

Protections for Boarders and Lodgers

Boarding House Act 2012 (NSW) Lodgers occupy a room and boarders occupy a room + meals and services in registered boarding houses.

Occupancy Agreement: Resident has basic rights according to occupancy principles + meals and services in registered boarding houses.

Consumer Claims Act 1998: Lodgers and boarders in hotels, motels,

Protections for Buyers