[Tim Leach]

Hi All,

I have a questions regarding section 575 and the tenant being an eligible pensioner.

I have an assessment where the property owner passed away and the two sons have become the joint owners. In the Will, it specifies that the deceased sister can continue to reside in the property as long as she pays the Rates, taxes, insurance etc. Speaking to the solicitors, they do not deem this as a life tenancy, but rather a right to residency so they won’t be putting it onto the title.

At our regional RP meeting, this topic was discussed (although not this specific case) and the general consensus was that most rates officers only accept a person is eligible for the concession if the tenant is on the land title as having a life tenancy. Now having read, and reread section 575(1), I’d be happy that a copy of the Will specifies the tenant is to pay the Rates would suffice. I’d probably be happy with a stat dec also.

Should I only have to be satisfied that the tenant is responsible for paying the Rates to allow them the pensioner concession?

Tim

[Laura Witchard]

Hi Tim,

You need to read Section 575(1) in conjunction with Section 560 and the definition of ‘owner’. Gosford City Council recently sought legal opinion on this matter and the advice given was that a life tenant is not considered the person liable for rates, regardless of what a Will says, and that only a life interest should be considered. I believe other councils have been given similar advice.

Cheers
Laura

[Dennis Gooley]

Hi Tim,

Section 575 requires that the eligible pensioner be the person solely liable or jointly liable to pay the rates.
Section 560 states that the owner for the time being of land on which a rate is levied is liable to pay the rate to the council, except as provided by this section;
The “owner” is defined in the Dictionary to the Act as:
owner:

(a) in relation to Crown land, means the Crown and includes:
(i) a lessee of land from the Crown, and

(ii) a person to whom the Crown has lawfully contracted to sell the land but in respect of which the purchase price or other consideration for the sale has not been received by the Crown, and

(b) in relation to land other than Crown land, includes:
(i) every person who jointly or severally, whether at law or in equity, is entitled to the land for any estate of freehold in possession, and

(ii) every such person who is entitled to receive, or is in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession, or otherwise, and

(iii) in the case of land that is the subject of a strata scheme under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, the owners corporation for that scheme constituted under the Strata Schemes Management Act 1996, and

(iv) in the case of land that is a community, precinct or neighbourhood parcel within the meaning of the Community Land Development Act 1989, the association for the parcel, and

(v) every person who by this Act is taken to be the owner, and

(c) in relation to land subject to a mining lease under the Mining Act 1992, includes the holder of the lease, and

(d) in Part 2 of Chapter 7, in relation to a building, means the owner of the building or the owner of the land on which the building is erected.

Ownership is a matter of degree and for your applicant to be eligible for a pensioner rebate he/she must have the same rights as an owner. That is he/she must be able to deal with the land while he/she is alive including selling and renting the property.

In my opinion your applicant is not eligible for a pensioner rebate.

I hope this helps.

Dennis Gooley

[Author]

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