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3.6.6 Ownership of Another House


Most forms of ownership of other houses are barriers to eligible persons utilising their DSH entitlement until such time as they have disposed of their interest in them.  Reference to ownership as an exclusion to assistance is covered in Ent GO 3.7.5.  However, there are circumstances where certain forms of ownership do not result in bars to assistance and are therefore listed in this part of the General Orders as inclusions.  The details are:- Permanently Separated Spouses or De facto Partners.  Where the applicant and spouse or de facto partner are permanently separated, the ownership of a house by the permanently separated spouse or de facto partner will not prevent the issue of a Certificate of Entitlement. The term 'permanently separated' applies to the circumstances where parties to a marriage have severed the marital relationship resulting in an evident breakdown of marriage. The applicant must complete a statutory declaration attesting to the significant factors supporting the claim. The permanent separation provision is included in the Act to ensure that those persons whose marriage has broken down, but who choose not to divorce, are not disadvantaged. It is important that each case be determined according to its circumstances but, as a general principle, a separation of more than twelve months will be regarded as permanent unless there are reasons to consider otherwise. Ownership of a Combined Business and House.  Ownership of a property consisting of a combined business and residence by the applicant and/or the spouse or de facto partner of the applicant does not constitute ownership of another house for the purpose of the Act where documentary evidence shows that the use of the house portion of the property by the operator of the business (other than the applicant and/or spouse of the applicant) is a necessary incident to the operation of the business, and therefore is unable to be occupied by the applicant as a home. Ownership of a House Subject to Exclusive Occupancy Rights or a Life Interest.  Where an applicant and/or the spouse or de facto partner of the applicant either solely or together own a house, and a life interest or an exclusive occupancy right is vested in another person, the interest in that house does not constitute ownership of another house providing the vesting of the interest was created by circumstances beyond the control of the applicant or the spouse, ie. by virtue of a Will or Court Order. If an interest in a house is divested by mutual consent or voluntary agreement (other than a trust) it is considered that the house is still owned by the registered owner. Ownership of a House which is Subject of a Trust.  An applicant is not considered to be the owner of a house, even if he remains on the title document as the owner, where he has passed the beneficial ownership of the house by the creation of a valid declaration of a trust, to the beneficiaries of that trust. The delegate should ensure that only those trusts which are considered to divest the ownership and which are not revocable are recognised. Ownership of Shares in a Company which Owns a House or Unit.  A company is a legal entity separate and distinct from its shareholders and a shareholder has no legal or equitable interest in land registered in the name of the company. As it is the company in which the entire legal and equitable interest is vested, ownership of shares in a company which owns a house or unit does not make a shareholder an owner of a house even where that person holds controlling shares in the company. Ownership of a House which has been Sold under a Contract of Sale.  The execution of a binding contract of sale for a house, of which the applicant and/or the spouse or de facto partner are/is joint registered owners or sole owner, makes the purchaser the equitable owner of the property and assistance may be made available. However, a Certificate of Entitlement cannot be issued until the conditions in the contract have been complied with or where contemporaneous settlements of the sale of one home and the purchase of another with DSH assistance are to occur.[Entitlement GO also refers]. When conditions in a contract have been complied with a certificate may be issued even though settlement may not yet have occurred. Ownership of a House Situated Outside Australia and its Territories.  The Act has no application outside Australia and ownership of a house outside Australia and its Territories should be disregarded.