Australia Back to Real Estate News Homepage to RSS for this country

AU Property News

AU Risks to home ownership

Property Here - Monday, November 18, 2013

Share to:

The most common scenario where your home could be taken off you is a bank foreclosure. File

The most common scenario where your home could be taken off you is a bank foreclosure. File

MOST people who buy a property can rest assured their ownership is as secure as the bricks and mortar the home is made of. But some circumstances can up-end that security.

Real estate has taken a look at four such situations.

BANK FORECLOSURE The most common scenario where your home could be taken off you is a bank foreclosure, according to Slater and Gordon senior associate and property specialist Adam Zuchowski.

The bank is a part owner of the home until you pay out your loan, but they still need a court order, according to Mr Zuchowski.

But NAB Care general manager Joseph Seychell said the bank doesn't want that to be the case.

'Our most important advice for customers is to let us know early when their circumstances change and they start to experience financial stress," Mr Seychell said.

The big factors in play here tend to be job loss, a reduction in working hours or days, accidents, divorces and separations, and natural disasters - most commonly fire and flood.

Options include a repayment break and refinancing.

'Only as a last resort will the bank commence legal proceedings to take possession of the asset," Mr Seychell said.

COMPULSORY ACQUISITION An unusual circumstance where a government body wants to put something where your property is - usually a big infrastructure project, such as the proposed East-West Link.

Roger Batrouney, Slater and Gordon practice group leader and a compulsory acquisition expert, said over a decade the number of compulsorily acquired homes in Victoria could stretch into the thousands.

In this instance, the chances are you won't be fighting to save your home, just to get the best price from the government. Mr Batrouney's advice is fight hard.

'If you have your home taken, you are being asked by the community to make a sacrifice for all of their benefits.'' The price will include market value as determined by two valuations, both paid for by the government, and up to 10 per cent 'solatium" - a small recompense for emotional loss.

It's also worth noting that in any acquisition, the bank will receive the money before the homeowner (if there is a mortgage over it).

'It is possible you could end up out of pocket through this process and end up owing the bank," Mr Batrouney said.

Owners of properties neighbouring an acquisition zone, though often affected by the government project, have no legal right to compensation.

ADVERSE POSSESSION In 2009 sisters Ann and Barbara Hodgson were able to claim a Victorian farmlet as their own through adverse possession laws.

Adverse possession more commonly occurs for a small section of land, usually after it is fenced off and added to a neighbouring property. But entire properties have been pursued, Mr Zuchowski said.

'To adversely acquire someone's property you have to demonstrate open and continuing ownership for at least 15 years," he said.

Generally this means paying rates to a local council that can be demonstrated over the required period.

But it can't be done on council or crown land.

'We might have a client contact us once every three or five months and we might actually run one or two applications a year," Mr Zuchowski said.

'It would be very rare for someone to say I'm adversely possessing a whole house." Mr Batrouney noted similar legislation can apply when private property is used to access something like a public facility or a fishing spot for a lengthy period, as much as 20 years.

'It's similar to adverse possession, except that this is the public turning private land into public land," he said.

FRAUD While technically possible, Mr Zuchowski isn't aware of any instances occurring in Victoria.

The most likely route would be someone abusing a power of attorney. 'Identity theft has happened in the US, but if an old grandparent gives a power of attorney to a child to look after their affairs, the child could improperly sell the property," Mr Zuchowski said.

'You do hear of people misusing power of attorney." The only advice here, is choose wisely.