Australia: Compulsory acquisition of your property: stand up for your rights and don't let yourself be bullied. Free help is available.

Last Updated: 6 October 2016
Article by Digby Dunn

Being told by the government that your home or property is about to be seized through compulsory acquisition for a freeway or a railway line is a scary proposition. More and more people are finding themselves in this predicament. Many people are unhappy with the amount they are told they will get for their property and feel helpless against the disproportionate power of the government.

Insist on obtaining your own property valuation

It is important to know that there are actions which you can take to improve the initial offer, in some cases dramatically. The first thing to do when a government agent declares that you have no choice and that the value of your property has been predetermined is to insist on exercising your right to obtain your own valuation and your own expert legal advice.

I urge all property owners not to accept the government's first offer, no matter how much they say it is fair and try to convince you that the amount you are being offered is the market value.

Scaremongering by Roads and Maritime Services

Disturbingly, contemporary news sources are continuing to propagate the fallacy that anyone who takes the government to court to receive adequate compensation could end up having to pay "hundreds of thousands of dollars" in legal fees.

This is simply misinformation which reflects the fear-mongering peddled by the Roads and Maritime Services (RMS), as my clients have reported to me, to scare people into accepting inadequate compensation rather than standing up to the state government bullies in court.

Anybody who ends up with a large legal bill like this has had very poor advice, or has acted very foolishly in their court case. And anyone forced to pay rent to remain in their own home definitely needs a better lawyer.

Protections for homeowners built into the legislation

The fact of the matter is that anyone can afford to engage a top-notch lawyer because it's free. Fees for legal advice and expert assistance to a property owner under the acquisition process must be paid for by the government under a provision in the Land Acquisition (Just Terms Compensation) Act.

The reason for this is that the government has a lot of experience in compulsory land acquisition, while most land owners have never done it before. This is why the Act builds in protections for landowners, by paying their costs to obtain expert legal and valuation advice.

What can you claim as part of the compensation package?

There are all manner of claims which homeowners can make as part of the compensation package. These include "solatium", which recognises an emotional attachment to a home and "disturbance", which recognises the need to buy a similar property, such as one with disabled access, proximity to hospital or amenities, removalist costs, connection of phones and other services to the new home.

In addition, stamp duty and legal fees incurred in the purchase of a new home are fully claimable, as well as the refinancing fees for the mortgage.

RMS does not have the property owner's interests at heart

I have fought for the rights of homeowners against compulsory acquisition for 20 years and I am well aware that the government has a full-time team which specialises in taking away people's homes and paying as little as possible. (For more information see Sean Nicholls, Warning of 'unfair' process unheeded as government forges ahead with property resumptions and Baird government rejected WestConnex fairness advice due to project delay fears.)

RMS staff have taken away a lot of properties and they do not have the property owner's interests at heart. On the contrary, they will hire top-shelf lawyers to fight landowners' claims every step of the way.

This is why it is important to have an experienced legal expert on your side who knows the system and can stand up to the government to make sure they pay proper compensation.

Businesses pushed out of their premises by government projects

Businesses facing compulsory acquisition of their premises can claim for certain costs, but again, this needs expert advice to get the best result.

The fact is that every business has different needs. Faced with compulsory acquisition, some can be relocated and some cannot. Those that cannot be relocated must be compensated for the total destruction of the business.

Relocation claims can include a vast range of expenses, including the following:

  • cost of finding suitable new premises
  • legal costs for the new lease and bank guarantees
  • fitout of the new premises
  • installation of any specialist equipment
  • increased rent
  • removalist fees
  • setting up and testing new phone systems, data cabling and computer hubs to ensure a smooth transition with minimal business interruption
  • advertising the new location
  • printing new stationery
  • cost of an organiser to manage logistics
  • staff wages and overtime to help with the move

Digby Dunn
Compulsory acquisition and property resumption
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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