Table of Contents
The Nature of Shelter
- Shelter is “something that provides cover or protection from weather and/or danger, a place of refuge”.
- It is considered a fundamental human right.
- Shelter refers to a fixed environment, which offers security and protection, from danger and weather.
- Shelter varies depending on an individuals ability to pay, and can either be private, for instance, houses and apartments, or public, for example boarding houses, public parks etc.
- Shelter significantly contributes to the overall function of society, the holistic development of individuals and the provision of individual rights.
- Shelter suggest having a roof over ones head and walls around the space, so that the person sheltering inside is safe, physically comfortable and able to relax enough to rest. Having shelter aids physical, emotion and mental health by providing security.
- Society in contemporary Australia operates on a presumption that everyone has a fixed address and can be found by authority figures who may need to communicate with them.
The Right to Shelter
- A commonly accepted view is that shelter is a basic need and that a persons quality of life is affected directly by the adequacy of their shelter.
- However, no country can be forced to enact legislation that would give a legal right to shelter, and successive Australian government have chosen not to grant this right.
- As a result, providing shelter is a personal responsibility. Individuals are expected to find and pay for their own shleter and they must provide adequate shelter for any children in their care.
- The right to shelter is the State’s responsibility (division of powers).
International Laws on the right to shelter
Article 25 of the UDHR:
“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
Article 11 of the ICESCR:
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
Article 27 of the Convention on the Rights of the Child:
States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.
Types of Shelter
- Under domestic law, there is no responsibility to provide shelter; however, the federal, state and territory governments in Australia acknowledge that under human rights and to ensure social inclusivity there is an obligation to provide shelter.
- Most Australian governments are investigating ways to alleviate problems associated with housing affordability, including through increasing the housing supply itself.
- Governments can provide assistance to first-home buyers, people on low incomes and homeless people.
- When it comes to public housing, the government provides people on low incomes a much cheaper rental rate.
- Rental assistance is also available, meaning that people can afford rental properties they otherwise would not have been able to.
- Under the National Partnership Agreement on Homelessness (NPAH) 2015-17, the federal government will provide $230 million across Australia to help each state.
- A key priority of the NPAH is domestic violence, as this is recognised as a leading cause of homelessness.
Legal Protection with Securing Shelter
- The legal process used to transfer the title of ownership from one party to another (purchasing) is called conveyancing.
- In NSW, this process is legislated by the Conveyancing Act 1919 (NSW), and the Conveyancing (Sale of Land) Regulation 2010 Act (NSW).
Separate Dwellings vs Shared Spaces
|Separate Dwelling||Shared Space|
|Individual lots disconnected from other buildings. A property has one “title”, but this can be subdivided in some cases.||Shared spaces are living spaces which share at least one wall with another person’s living space.|
|Examples include freestanding homes, granny flats, and detached studios.||Examples include townhouses and apartments.|
- Property is sold between a vendor and a purchaser
- It usually involves a real estate agent who ‘shows’ the property and ‘haggles’ negotiates a price. They are paid a percentage of the value of the property.
- The purchaser can ask questions, see the property several times and put in an offer. An offer is a price they are willing to pay. The vender and negotiate until a price is agreed upon.
- The vender and purchaser then hire a conveyancer to prepare a contract for sale. The buyer and seller rarely talk to each other.
- Before the contract is exchanged the purchaser is entitled to have a ‘pest and building inspection done’. This is to make sure the house is not falling down or full of termites.
- The purchaser and vendor are not committed to the sale until the contract has been exchangedand the cooling off period is extinguished.
- The Conveyancing Act 1919 (NSW) states purchases are entitled to a 5 day ‘cooling off’ period after contracts are exchanged. It allows the buyer to pull out of the sale without penalties. After the cooling off period, the buyer must pay 0.25% of the asking price if they pull out of the sale.
- Once the contract are exchanged the buyer gives the vendors solicitors at 10% deposit. 4-6 weeks after exchange the property settles. This allows for the mortgage and other administration.
- Property sold to the highest bidder
- This involves a real estate agent - the price is set by the highest bidder who goes over the ‘reserve price’.
- The ‘reserve price’ is the lowest price the vendor is willing to sell their property for. Once the bidding has finished the higher bidder signs the contract and exchange has occurred.
- The buyer is committed to the sale and must hand over 10% of the purchasing price.
- Buyers have less protection because they can get caught in the ‘heat of the moment’, they must have their ‘pest and building’ already done, they must have the approval from the bank for the price they agree to pay on the day.
Systems of Registration
- Makes up of more than 50% of NSW land
- Examples include
- Land held under lease, licence or permit
- Community managed reserves
- Retained in public ownership for environmental purposes
- Public roads
- Legislated by the Crown Land Act 1989
Old-System Title (English Common Law)
- Used until 1863, when it was replaced by Torrens title.
- To prove ownership of land, a “chain of title” had to be proven (effectively, presenting every contract of every previous sale of the land to prove ownership).
- Defined under the Real Property Act 1900.
- Government became responsible for keeping track of title and land ownership, eliminating the need for chains of title.
Sources of Finance
- The property is collateral until load in paid back over a certain time. The bank essentially owns the property until this time
- If the owner is unable to meet payments, the bank has the option to sell the property (foreclosure).
- There are tighter lending policies since the GFC. This means that buyers have to put a 10-20% deposit.
- People who take out mortgages are given protection by consumer credit laws.
- Under the National Consumer Credit Protection Act 2009 (Cth), people can be denied a loan because of poor credit history. They need to contact Credit Repair Australia (CRA).
- Latin for “let the buyer beware”
- The principle that the law is not responsible for your purchasing decisions, and that the buyer is responsible for verifying the quality and suitability of a product before purchasing it
- If you’ve ever been to a store with “no change-of-mind refunds”, this is the principle that enables it.
- Caveat Emptor has exemptions under Australian Consumer Law (ACL):
- If a product is faulty or defective, the buyer is entitled to a repair, replacement, or refund.
- If the contract or conditions of a service are unlawful in some way, they are automatically void.
In NSW, “Australian Consumer Law” refers to two sets of legislation:
- At the federal level, companies are legislated under the Competition and Consumer Act 2010 (Cth). This Act establishes the ACCC and several other consumer protection and dispute resolution bodies at the national level, as well as defining concepts such as antitrust and product liability.
- At the state level, companies are legislated under the NSW Fair Trading Act 1987.
- Gazumping is when a seller accepts one offer to purchase an asset/product/property, but then accepts a higher offer later on.
- There is no obligation for the seller to reimburse the buyer, unless a contract has been signed.
- Under the Conveyancing Act 1919, there is a 5 day cooling-off period in which a contract can be revoked by either party (with a penalty).
- There are exceptions to this under the Contracts Review Act 1980, such as if the court determines that one party may have been in a stronger bargaining position.
- The penalty is a minimum of 0.25% of the purchasing price, although this usually comes from any deposit placed.
The rights and obligations of landlords and tenants
Residential Tenancies Act (RTA) 2010 (NSW) sets out rights and obligations condition reports
An inspection checklist that is signed by both landlord and tenant, covering cleanliness, damage etc.
Under s39 of RTA, tenants have to pay for water ONLY if the premises had a separate meter and the has water efficiency measures in place, e.g. no leaking taps
Bond money is a deposit retained by the landlord for the duration of the rent to cover any damages the tenant makes.
It must be no more than 4 weeks rent, as outlined in the Landlord and Tenant (Rental Bonds) Act 1977 (NSW)
It is held by Renting Services in NSW Fair Trading – it cannot be in the landlords bank account
The landlord makes a claim to have the bond dispersed to them if the tenant breaks their lease agreement or damages the property
Both the landlord and tenant signs to have the bond returned. If the landlord refuses to sign they have 14 days to lodge a claim
NCAT resolves disputes over bond money (see Groth v Kantipudi 2012)
Landlords DO NOT have the right to enter the property – they need to give at least 7-day’s notice
A tenant cannot deny the landlord entry if they have followed the correct procedure
Landlords can conduct an inspection up to 4 times a year
The landlord has an obligation to ensure the property is habitable, clean, safe and secure, and stays in that state
Urgent repairs can be completed immediately. The tenant should be reimbursed within 14days up to $1000. The landlord needs to be informed/contacted.
For non-urgent repairs a deadline needs to be agreed upon and met
The tenant can apply to NCAT to have these carried out 3 months after deadline
Rent can be increased as many times as the landlord wishes – NSW is the only state that this can happen in
In a fixed term lease less than 2 years the rent cannot be changed unless otherwise stated in the agreement
In a fixed term 2+ years the landlord has to give 60 days written notice and cannot be increased more than once in a 12month period
In periodic terms, 60 days written notice needs to be given
- Tenant gives 14 days notice
- Landlord gives 30 days notice
Tenant gives 21 days
Landlord give 90 days
Protections for Tenants, Landlords, Boarders, and Lodgers
Residential Tenancies Act 2010 (NSW)
Fixed term expires landlord gives 90 day’s notice
If tenant is 14 days behind, they can be given notice to vacate in 14 days. They can stay if they repay their rent
If a tenant wants to sublet the landlord cannot refuse unreasonably
The Property Owners’ Association of NSW say that protection for landlords have been weakened in favour of tenants
The Tenants Union of NSW thinks that the 2010 Act is an improvement
Boarders and lodgers are some of the most vulnerable tenants in Australia
They are not covered by the Residential Tenancies Act, so don’t sign tenancy agreements
“that the accommodation was not reasonably fit for the purposes and thus the money should be returned”
Doran v Lia
Securing Other Types of Shelter
- Retirement Villages Act 1999 (NSW) and the Retirement Villages Regulation 2009 (NSW)
‘Any residential complex predominantly occupied by retired persons over 55 years who have entered a contractual arrangement with the owner…”
- Three main types of accommodation offered
- Self-contained premises for independent living
- Assisted living (cleaning, meals and other services are provided)
- A mix of the two
- A criticism is there are a variety of fee structures that make it difficult
- There has to be a ‘residents committee’ and a ‘disputes committee’
Regulated by the Aged Care Act 1997
Divided into low- and high-level care
There is an accommodation bond, which is a payment to the nursing home to secure a place and partially refunded when they leave
Accommodation charge is an asset-tested daily amount paid by residents who are in high care for more than 28 days
Aged Care Act regulates
Community care (CACP)
Extended Aged Care at Home
Must adhere to the Charter of Care Recipients’ Right and Responsibilities – Residential Care
- NSW Fair Trading defines residential parks as “…caravan parks, manufactured home estates, mobile home villages and relocatable home parks…”
- Long-term residents are covered under the Landlord and Tenant (Rental Bonds) Act 1977, while all residents are covered under the Residential Parks Act 1988.
- Squatters occupy a property without the permission of the owner, residing rent-free.
- Squatters don’t have tenancy rights, as they don’t have the right to reside at that location.
Dispute Resolution Mechanisms
Most disputes arise from a clash of rights and responsibilities between people acquiring and providing shelter
- Landlord/tenant, purchaser/vendor, neighbours, social housing and residents
Alternative dispute resolution is the most cost effective and time efficient mechanisms for dispute resolution
Specialists tribunals increase accessibility to the law especially in disputes between landlords and tenants
NSW Civil and Administrative Tribunal (NCAT) was established in 2012 to increase access to the law for tenants.
Hears matters pertaining to tenants from private rentals, social housing (tenants of Housing NSW) and residential parks
Urgent hearings occur within 2-3 days
Usually no legal representation (more level footing between tenant and landlord)
Courts and Tribunals
- NCAT (NSW Civil and Administrative Tribunal) oversees disputes about residential tenancy agreements, as required by the NCAT Act 2013.
- Matters are usually heard within 21 days of filing a complaint.
- NCAT also oversees some disputes about social and public housing.
Alternative Dispute Resolutions
- Mediation allows landlords and tenants to reach an agreement without the involvement of NCAT.
- Conciliation is the use of a third party to work out a solution.
Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA)
- Disputes with social housing.
Rental Bond Board
- Holds bond
- Disputes about bond go through this
Home Building Service
- Compliance with the Home Building Act 1989
Housing Appeals Committee
- Independent agency that reviews administrative decisions of social housing providers
- Aims to be fair, informal and quick
- Only reviews decisions to see if they are in line with the housing provider’s policy
Community Justice Centres
- Free mediation to people attempting to resolve their dispute
- Neighbourhood disputes etc.
Seniors Right Service Community Legal Centre provides advocacy and legal advice
The Council of Social Service NSW (NCOSS) co-ordinates non-government social and community services in NSW.
Tenants Union of NSW provides advice to tenants about their rights and responsibilities under the Residential Tenancy Act.
Contemporary Issues Concerning Shelter
- Defined as a person’s ability to pay for their own shelter
- For a city to be considered “affordable” to live in, the median price of buying a house should be about 3 times the median annual income.
- In 2021, Sydney’s median house price was 15.3 times the median income, making it the second-least affordable market in the world (after only Hong Kong). Melbourne is around 12.3
- Australia is consistently one of the least affordable countries: in 2021, the national ratio was 8.0 (compared to a global average of 5.3).
First Home Buyers Scheme
- Part of Commonwealth government initiative in conjunction with NSW funding
- Came into effect July 1 2017
- Applies when buying a new or existing home of block of land
- Must be purchasing your first home
- Full exemption on stamp duty if the value is no more than $650k (usually just under 25k), and a partial reduction if under $800k.
- Abolishes mortgage duty on lenders mortgage insurance
First Home Buyers Grant
- First home buyers, building a new property will be entitled to a $10,000 grant on homes worth up to $750k
- First home buyers, purchasing a new property worth up to $600,000 will be entitled to a $10,000 grant
- Encourages the production of new properties, and increasing supply
- Criticism that it sets people up for long term/ payable debts
- Contributes to increasing competition
- Provides financial assistance for eligible clients to help them set up or maintain a tenancy in the private rental market.
- They provide assistance with bond payments and may also provide help with advance rent and rental arrears (e.g. behind on rent).
- Housing NSW provided rental assistance in the form of RENTSTART.
- FaCS housing provides help with the cost of setting up a new private rental with a Rentstart Bond Load.
- You must have less than $3000 in the bank.
- The loan is interest free, and is paid back to FaCS Housing.
- FaCS also assists with on-going rental affordability for young people, DV victims, Veterans and people experiencing illness or job loss.
Habitat for Humanity
- Built 160 homes across Australia, runs a small-home building program
- Works with families experiencing housing affordability stress
- Families partnered with the project recieve a 20 year interest-free loan based on 95% of the market value of the completed home.
- Instead of interest, families contribute 500 hours of time during the planning and construction phases, known as “sweat equity”.
- This is repaid in the 5% discount on market value, which is paid by Habitat for Humanity.
- Usually, this sweat equity is fulfilled through volunteering and other initiatives, usually helping disabled or elderly people.
Discrimination is extremely prevalent in the Australian housing market, especially against Aboriginal and Torres Strait Islander people, migrants, and single parents.
- Legally, it is illegal to discriminate against a person seeking shelter.
- NSW Anti-Discrimination Act 1977 prohibits discrimination based on race, gender, marriage status, etc.
- Anti-Discrimination Board refers complaints to NCAT, which has a specific “Administration and Equal Opportunity Division” for discrimination proceedings.
- NCAT can:
- Award compensation up to 100000AUD
- Order the offender to stop discriminating
- Reinstate someone to their job or shelter
- Order the offender to publish an apology
There are several laws regarding discrimination at the federal level, most of which would’ve been covered in Human Rights (or are just self-explanatory). These include:
- Australian Human Rights Commission Act 1986
- Age Discrimination Act 2004
- Disability Discrimination Act 1992
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
Additionally, the AHRC manages and investigates discrimination issues in partnership with NCAT and other state initiatives.
- Defined as “inadequate access to safe and secure housing”.
- Damaging to a person’s health and safety.
- Marginalises a person/group through a lack of personal amenities.
- Places a person in a situation where the “adequacy, safety, security and affordability” of their housing is under threat.
- Factors contributing to homelessness include:
- Lack of affordable housing
- Domestic/Family Violence
- Financial Difficulties
- Loss of job/Inability to work
- Drugs, alcohol, and gambling are the cause of under 10% of homelessness in Australia.
- 1/200 people in Australia is homeless, with an increase of 13.7% from 2011 to 2016.
- Less than 1% of private rentals in Sydney are affordable for people on low incomes.
- Australia has not ratified any protections for adequate housing as defined by international law.
“failed to implement its legal obligation… human right to adequate housing…”
2006 UNHRC Special Rapporteur on Adequate Housing, regarding the Australian Government.
- Having inadequate shelter can take a large negative toll on individuals and families.
- The increase in homelessness shows that the existing measures are ineffective and potentially detrimental.
Social and Community Housing
Government owned housing, including public, social and Indigenous properties
Managed by Housing NSW through Rentstart, property leasing, and other special assistance subsidies
Public housing accounts for about 85% of social housing
There is a long waiting list, and it is provided on a priority needs basis
Social tenants are covered by the Residential Tenancies Act 2010, although there are exemptions due to the different relationship between landlord and tenant
There are eligibility requirements under the Act
They are disqualified if they own/have a share in a property that could be lived in (exceptions to this ie. Domestic violence, relationship breakdown)
Housing NSW is responsible for repairs under the Act
Common reasons for ending a social housing agreement:
Rent is in arrears (behind)
Anti-social or criminal activity (e.g. drug offences)
Premises being vacated for a long period of time
Making unauthorised changes to the property
Housing NSW provides 14 days notice, and needs to go to NCAT for termination and possession orders
Residents can and do take matters to NCAT
The review of administrative decisions is done by Housing Appeals Committee.
In response to the low supply of public housing, the NSW government came up with the ‘Future Directions for Social Housing’, funded by selling off high-market public housing. Over $600 M has been raised.
NSW govt 2018-19 Social and Affordable Housing Fund (SAHF)
- $1 B budget for homelessness and social housing
- Funding new community housing homes
- Second phase- four providers, 1000 homes (Financial Review)
Similar to social housing, but run by non-profit community housing organisations instead of Housing NSW
Appeal decision to the Housing Appeals Committee
Marginalised and disadvantaged members have access to adequate shelter
Co-operative housing is owned by all the tenants, and are often culturally aligned