Think of someone losing their home and your mind might turn to refugees or bushfire victims. But there's another group: people who lose their homes at the hands of their own government.
Howard Tuxworth and his wife Gillian know what that feels like. In mid-2013 the Melbourne couple received a letter informing them that based on current plans, their Clifton Hill home would be compulsorily acquired to make way for the East West Link road tunnel.
![Howard and Gillian Tuxworth, with their children Harry and Molly, at the Collingwood home the Victorian government ...](/web/20160924115603im_/http://www.brisbanetimes.com.au/content/dam/images/g/r/j/7/l/c/image.related.articleLeadwide.620x349.grj7al.png/1474245010947.jpg)
They then entered a long period of limbo. "It's your house," says Howard. "You'd think they'd be communicating with you all the time and they don't. You go for long periods where you hear nothing."
It wasn't until early 2014 that the plans were confirmed and it was October before their house was acquired. In the meantime they were spending every weekend house-hunting. By December they found a place they liked and bought, despite the possibility that a change in government in November meant the project could be scrapped.
![Kim Sun had his home in North Strathfield acquired by the NSW government for Westconnex and feels short-changed by the ...](/web/20160924115603im_/http://www.brisbanetimes.com.au/content/dam/images/g/r/j/7/l/m/image.related.articleLeadwide.620x349.grj7al.png/1474245010947.jpg)
"We had to borrow more money," says Howard. When the project was cancelled they were offered a chance to buy their former house back, but they decided against it.
"We think at some point someone is going to build a tunnel," says Howard. Plus, he says, "It was taking a toll on us as a family and we needed to get away from that and get on with enjoying life instead of just stressing about where we're going to live."
It's still not over for them. In November they will begin fighting the valuation placed on their former home at the Victorian Civil and Administrative Tribunal (VCAT). Apart from seeking more compensation, Howard admits they want to have their day in court. "We're incredibly bitter about the way the government treats you."
They are not the only ones. In Sydney, many homeowners affected by the $17 billion WestConnex project are frustrated and stressed by being offered compensation hundreds of thousands of dollars below the market value of their properties as well as the government's failure to implement key recommended changes to the compulsory acquisition laws following a review by David Russell, SC, two years ago.
If they take their case to the Valuer-General in NSW they can face a financial hit of hundreds of thousands of dollars in legal fees.
Your rights
For those living under the cloud of compulsory acquisition what can be done?
Manisha Blencowe, property acquisition lawyer, Slater and Gordon, says once a government decides to compulsorily acquire a property there is little the owner can do about it.
Notices are served on property owners and when a notice is published in the government gazette, the property belongs to the government.
The process can be initiated by Commonwealth, State or Territory governments, or a local government authority. The entire property may be acquired or just part of it.
What follows is a process of negotiating compensation for the loss suffered. This includes compensation for the market value of the property.
"Beyond market value the other categories of compensation for losses that people suffer include what are called disturbance losses," says Blencowe. "They are the losses that people suffer as a consequence of the property being taken from you and the need to replace that property so things like stamp duty, transfer fees, conveyancing costs, removal costs."
People can also claim professional expenses: lawyers, valuers and other professional advisers that they consult because of the acquisition. "Those costs are generally recovered in full from the acquiring authority."
Be aware, though, some categories of compensation vary from state to state.
For instance, in Victoria the compensation for the emotional impact of having your property taken from you is called solatium. It can be up to 10 per cent of the market value of the property.
"The amount that you're entitled to varies depending on the circumstances of your connection to that property," says Blencowe.
In NSW, however, the entitlement is a lump sum payment of about $25,000. "So it's clearly nowhere near the 10 per cent of the market value of a property which can be claimed in Victoria."
Blencowe recommends getting legal advice early, ideally as soon as you're notified your property might be compulsorily acquired or when a public acquisition overlay is placed on the property. "The way in which acquisitions take place and compensation entitlements are triggered varies in different states," says Blencowe. "In some cases, in NSW, it's very common for the authorities to really jump the gun and acquire properties before the planning approvals are even in place whereas in Victoria it's more common for there to be a planning process which is well-advanced and plans approved before the acquisitions take place."
Once the process starts to unfold there are timelines for the authority to make an offer of compensation and the property owner to respond. "You only get one chance at that response and it's important that the response is based on the right valuation evidence and claims all of the entitlements that you have."
It can make a significant difference, Blencowe adds. "If someone has been living in a property for a very long period of time and has an extensive history with the property they are likely to get a very high allowance for solatium whereas the government's offer will quite often be quite measly."
The legislation also requires that the land is valued based on its highest and best use. For instance, if someone owns a small cottage on a large piece of land, the value could be far higher if it was sold to a developer.
If the property owner thinks the value is unfair they can choose to have it determined by a court or tribunal.
Kim Sun was one of the North Strathfield home-owners affected by WestConnex compulsory acquisitions. By October 2015, the offer from the acquiring authority, Roads and Maritime Services, (RMS) was still about $200,000 below what his valuer said was the $1.65 million market value of his property. "We negotiated for about two years and then I just gave up negotiating with RMS and went to the Valuer-General," he says. "He was the one that gave us the final agreement of $100,000 below market value and I ended up having to pay $25,000 in solicitor's fees as well."
They have bought another house. "It's on a very busy road. Ours was in a cul-de-sac. I've moved to a smaller place, further out in Enfield. It's on a smaller block of land, further away from the station and I had to pay on top of that an extra $30,000 from what they gave me." His son also had to change schools.
His advice for others? Get a good solicitor. Plus, he adds: "Try and talk to your neighbours: that's what I did. We kept in contact to make sure we didn't get ripped off."