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Homelessness, property rights and charitable housing: a personal journey

Join us at the Not for Profit Conference: Empowerment through Knowledge on 14 March 2019 in Melbourne to learn about Derek's journey in building a dwelling on land, the benefits from property, and the importance of a sense of identity in relation to land and housing.

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Homelessness, property rights and charitable housing: a personal journey

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  1. Homelessness, property rights and charitable housing: a personal journey Not for Profit Conference: Empowerment through Knowledge 14 March 2019 Palladium at Crown, Melbourne

  2. The Agreement That Derek has built a dwelling on part of the land, which dwelling is made of mud brick and iron roof (hereinafter “the dwelling”); Derek may reside in the dwelling until the land is sold and on receipt of not less than 60 days notice he will vacate the dwelling and cease all occupation; Derek is entitled to remove the dwelling from the land provided the dwelling site is left in clean and tidy condition.

  3. Benefits from property Main residence exempt from Capital Gains Tax on disposal Income Tax Assessment Act 1997 (Cth) s118-100 an institution essential for the realisation of liberty Georg Freidrich HegelPhilosophy of Right (1821) an assertion of self and control of one’s environment provides a place of deep psychological refuge Laura S UnderkufflerThe Idea of Property: Its Meaning and Power (2003) a spiritual link to land which gives a sense of identity Aboriginal Land Rights Commission, 2nd Report, April 1974 in Northern Land Council v Commissioner of Taxes [2001] NTSC 115

  4. Progress and Poverty (1879)

  5. Absolute ownership refers “only to what a man acquired as the reward of his own exertions, but certainly not the ownership of land” Henry George “The land for the people” lecture at Geelong Exhibition Theatre 5 April 1890 reported in Geelong Advertiser 7 April 1890 and noted in John Pullen Natures Gifts (2014)

  6. Part of Cornell University course announcement flyer “Community and changing Property Institutions” Professor Charles Geisler (Autumn 1991)

  7. Community Land Trust (“CLT”) not for profit housing body established to: hold land in perpetuity and lease to low and moderate income families transfer ownership of improvements to lessees set a price formula to minimise capital gain – this ensures improvements are affordable to next lessee Adapted from section 233 Cranston-Gonzales National Affordable Housing Act (42 U.S.C 12773)

  8. Hallen v Runder(1834) (149 ER 1080) Landlord agrees to pay tenant for fixtures at price set by independent valuation Court says the price paid: is not for a “sale of goods” or for a “transfer of an interest in land” is “compensation” to the tenant for waiving their right to remove fixtures

  9. Inwards v Baker [1965] 1 All ER 446 Father says son can build bungalow Father dies and estate seeks son’s eviction Court says: Son expended effort on land based on promise of tenure (“estoppel”) Son entitled to remain in the bungalow on land owned by estate

  10. State of Victoria v Tymbook Pty Ltd[2007] VSC 140 Agreement entitled tenant to auction Theatre prior to expiration of term Court said of a subsequent agreement: The tenant was Theatre “owner” but rights attached to that ownership are restricted Tenant’s rights to the Theatre did not extend beyond the end of its leasehold

  11. draft CLT agreement clause 7 Tenant is called “Homeowner” Homeowner acquires rights to existing fixtures and can install additional fixtures Tenant receives compensation at tenancy end based on price formula .

  12. “The CLT Classic is not currently possible under Australian law – our law says that ‘fixtures’ (buildings) are part of the land.” Extract from Australian Community Land Trust Manual (2013) chapter 1 (“Overview”) “it [is] impossible under Residential Tenancies legislation for the Resident … to be compensated for the value of improvements on termination of the lease …. Attempting to enforce or enact such activities … might leave CLTs vulnerable to fines and criminal penalty.” Extract from Australian Community Land Trust Manual (2013) chapter 4 (“Legal considerations”)

  13. Residential Tenancies Act 1997 (Vic) Section 64: (2) A tenant who has installed fixtures or renovated the premises must: (a)   restore the premises to the condition they were in immediately before; or (b)   pay the landlord an amount equal to the cost of restoring the premises. (3)  Subsection (2) does not apply if the tenancy agreement otherwise provides.

  14. A CLT prescribed form long term tenancy agreement? Q: Whether clause 7 of the draft CLT Agreement is consistent with an “agreement” under section 64(3) of the RTA? DF Mortimer letter February 2018 A: Clause 7 of the draft CLT agreement is not necessarily inconsistent with section 64 of the RTA, noting the qualification in section 64(3). CAV letter October 2018

  15. Thankyou for coming to this presentation For further information on this presentation please contact Derek Mortimer (03) 9370 9333

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