Collaborative housing is a relatively new addition to the landscape of mainstream housing choices in Australia. It’s important to understand the legal implications and have the appropriate legal protections in place. Here’s a summary of some things you need to know, however remember that tailored legal advice is essential.
This article on Collaborative Housing and the legal considerations was first published in the October 2012 edition of the Law Society Journal. We thank them for allowing us to share it here.
If you’re involved in developing a collaborative housing project, it will need to be approved by local government. It’s important to understand the planning controls that apply to your chosen site. These will outline what’s permissible – including the type of development and the number of dwellings – and help you determine whether your vision for the site is viable. Planning controls might also affect the property title you can use. See further information for small projects and larger projects, and speak to your local Council.
Implications of adapting your own home
If you want to convert your own home to collaborative housing, there are some issues you need to be aware of. Selling off or renting out portions of your home could have implications for taxation and social security eligibility, including the aged pension. See here for more information and always seek expert financial and legal advice that’s tailored to your situation.
Co-buying a home
Tenants in common is a typical form of ownership for parties co-buying property on a single title. Each party owns a defined amount of shares, which they can sell or give away in a will. The shares owned by each party can be equal or unequal. As tenants in common you are jointly and severally responsible for the loan, meaning each party must guarantee the other, so think carefully before entering into such an arrangement. Seek expert legal advice and have your lawyer develop a legal co-ownership agreement.
Which property title?
A key consideration in collaborative housing is how you set up property ownership rights. The property title refers to the legal right that enables possession or use of a property, and the legal structure that describes the rights and responsibilities related that possession.
Likely options include strata, community, company, cooperative title, or retirement living license to occupy. Your choice will have implications for ownership of private and communal space, processes for buying, selling and renting dwellings, what happens when should someone die, and how conflicts and decision-making are managed. Read more on the factors to consider for small projects and larger projects and always seek tailored legal advice.
Getting along is particularly important if you want to live in a more collaborative community where spaces and items are shared. To give your community the best chance of getting along, there are a couple of things you should do. First, accept that conflict will arise, and prepare everyone with the skills to deal with conflict effectively. Second, have strong processes in place for working through disagreements and resolving conflict. Finally, ensure you have the appropriate legal agreements and protections in place should conflicts be unresolvable.
If you own your dwelling it will become part of your estate as normal. If you own a share in a co-operative, it will also become part of your estate, although the co-operative may have rules about how this share can then be sold, to whom, and at what price. If you’re considering a collaborative retirement village, check your contract so that you understand all the exit costs and obligations (such as the need for your estate to pay fees until the unit is sold) and be sure to seek tailored legal advice. Here is some useful guidance on retirement living costs from the Australian Competition and Consumer Commission and Choice