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3.7.5 Ownership of Another House

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Assistance will be not be granted where either the eligible person or spouse or de facto partner is the owner of a house other than the one which is the subject of the application.  In deciding whether ownership exists, two elements must be tested.  Firstly, the property must represent a suitable security for a loan having regard to the usual test - acceptable holdings, whether it is a house etc.  Secondly, the applicant or spouse or de facto partner if applicable must not own another house as either a single tenant or as a joint tenant, no matter who the other joint tenant(s) may be.  An interest should not be considered as ownership if it does not meet both elements of the test.  Although holding other property as a company shareholder or as a company title shareholder might satisfy the first part of the test, it would not be considered ownership under the second part.

Though joint tenants as between themselves have separate rights as far as outsiders are concerned, each is treated as the single owner of the entire property. A Tenancy in Common is co-ownership under which each tenant has a distinct interest in the property, though no one tenant has a right to possession of any particular part of the property.  A tenant in common could not as an individual, be regarded as the owner of another home, but rather is a person who has a share or interest in another home.  Ownership of another home as a tenant in common, even where the only other tenant in common is the applicant's spouse or de facto partner, would not constitute ownership in terms of subsection 18(2)(b) or (e).  Likewise ownership of shares in a company which owns another home does not make a shareholder an owner even where that person holds controlling shares in the company.  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 a company.  Notwithstanding that the legislation provides for assistance under company titles, a shareholder cannot be regarded as the owner of any property held in this way.

3.7.5.1 House.  As a general principle, a structure may be considered to have the status of a house if it is legally able to be occupied; it is, or will be, able to satisfy the reasonable tests of a house (eg. provides sleeping and living accommodation, and facilities for ablutions, cooking, laundering etc.); and the title is an acceptable holding as defined in the legislation.

3.7.5.2 Owner.  Includes any person who has purchased or contracted to purchase a house.  Generally, for the purposes of the legislation, an owner is a person having a complete legal or equitable interest in a house.  Thus properties in which the applicant and/or any proposed joint tenant of the applicant, share an interest with other persons as tenants in common will not result in refusal to grant assistance.

3.7.5.3 Ownership of another house by either the applicant's  spouse or de facto partner will result in a refusal to grant assistance. Where the applicant has both a  spouse and de facto partner, the delegate must be satisfied that neither of them owns another home.  Alternatively, if one of them owns a home, the Delegate must be satisfied that the applicant is permanently separated from that spouse or de facto partner.

3.7.5.4 Issue of Certificate of Entitlement.  A Certificate of Entitlement cannot normally be issued while the applicant or his/her spouse or de facto partner owns another home. Where the applicant owns another home which is to be sold, a Conditional Letter should be issued.  An exception to this general rule may be made where contemporaneous settlements of the sale of one home and the purchase of another are to occur.  Delegates are to exercise their discretion to ensure that clients are not disadvantaged in such circumstances.  Where the home being sold is a Defence Service home, the amount box on the C of E should show "see special information box".  The special information box might contain a statement along the lines of "amount of advance must not exceed the limit of the immediately preceding DSH advance/s, excluding any amount owing on essential repairs advances and/or widows'/widowers' advances."