National Consumer Credit Protection Act 2009 and Uniform Consumer Credit Code.
Australian lenders are not permitted to call in regulated loans, 'margin call' borrowers, or repossess homes just because house prices fall.
Property bears often claim banks will call in loans, 'margin call' borrowers, or repossess homes if house prices crash and borrowers have negative equity.
They say banks can do this even when the borrower is keeping up with repayments.
In reality, Australia's consumer protection laws prevent this. The 2009 NCCP Act (and the earlier UCCC) includes clauses designed to prevent lenders from behaving unjustly or creating contractual obligations that could only be met by selling the borrower's home. All owner-occupier loans are regulated and all investment property loans entered into since July 2010 are regulated, with the exception of property developer loans (loans for multiple properties valued at more than $5 million).
'The contract will be unsuitable for the consumer if, at the time of the assessment, it is likely that the consumer will be unable to comply with the consumer’s financial obligations under the contract, or could only comply with substantial hardship. If the consumer could only comply with the consumer’s financial obligations under the contract by selling the consumer’s principal place of residence, the consumer could only comply with those obligations with substantial hardship.'
It says credit contracts must not contain provisions that could only be met by selling the home.
A provision that lets the bank call in the loan any time they want, any time house prices fall, or any time they're not satisfied with the property value, would be a provision that could only be met by selling the home. Therefore it would be a clear breach of the regulations, which is why regulated home loans don't contain any such provision.
As a result of these clauses in the NCCP Act, Australian banks exclude certain terms and conditions from the regulated sections of their home loan contracts. They apply different terms to regulated versus unregulated loans, as can be seen from the sections below scanned from the standard T&Cs of a Westpac contract...
And the links below show that ANZ contracts also differentiate between terms that apply to regulated vs unregulated loans. The standard ANZ contract includes 'material adverse change affecting the property' as a default for unregulated loans, but excludes it for regulated loans...
Some banks, including CBA and ANZ, publish general information booklets that include default events such as the bank being unsatisfied with the security value. For example, the ANZ information booklet says this...
'10. ANZ’s rights if there is a default under this agreement Lending for personal use or investment in residential property, regulated by the National Credit Code, or lending for personal investment purposes (other than investment in residential property) An event of default occurs: • if, in ANZ’s opinion, any event or circumstance arises causing a material adverse change in your financial situation likely to affect your ability to meet your obligations under this loan or facility or any security for it. A material adverse change includes, but is not limited to: • any reduction in the value of property mortgaged to ANZ as security for this loan or facility'
However these information booklets are not, by themselves, legal documents. The information booklets cover a range of financial products, both regulated and unregulated, including non-property related loans. As such, not all terms from the information booklets apply to all loans. The Schedule (or Letter of Offer) that creates the contract will bring only the relevant terms from the UTC into force in a regulated home loan contract, as seen in the screenshots from actual ANZ and Westpac contracts above. So despite banks including many clauses in their information booklets and UTC, when it comes to the actual contract they exclude certain non-NCCP-compliant terms from regulated home loan contracts.
The NCCP Act says banks can't take action against borrowers unless they have defaulted, and subsequently failed to comply with a request to remedy that default.
'Enforcement of credit contracts, mortgages and guarantees (2) A credit provider must not begin enforcement proceedings against a mortgagor to recover payment of money due or take possession of, sell, appoint a receiver for or foreclose in relation to property subject to a mortgage, unless the mortgagor is in default under the mortgage and: (a) the credit provider has given the mortgagor a default notice, complying with this section, allowing the mortgagor a period of at least 30 days from the date of the notice to remedy the default; and (b) the default has not been remedied within that period.'
'A lender (mortgagee) can sell property if: • payments fall into default • the payment default is not corrected after the lender gives notice.'
Readers may also be interested in this discussion I had with Treasury ([email protected]) on the matter...
'I have a question about residential mortgages and the NCCP Act. I'm trying to determine exactly what protection a borrower has from a bank taking foreclosure action in an instance where the borrower continued to make all payments on time and adhered to all other provisions of the mortgage contract. My specific question is this... Do lenders have the ability to foreclose, force the sale of, repossess, call in, demand a loan 'top up', 'margin call' or otherwise take action against a borrower simply because general house prices have fallen? If the mortgage contract includes a clause stating that a default occurs when the lender is not 'reasonably satisfied' with the value of the property, could the lender use this clause in the event of a general property crash to declare that the borrower has defaulted? Would the NCCP permit the lender to take action against the borrower in such a case? For example, after taking out a mortgage, property values in the area fall to a point where the value of the property might be less than the originally agreed LVR, or fall to some other point where the lender is not 'satisfied' with the valuation. Does the lender have the right to then revalue the property, declare that the borrower has defaulted, and take action against the borrower? In other words, the borrower is keeping up with their repayments, has not breached any other conditions of the contract, and the only issue is that the bank decides it is no longer 'satisfied' with the value of the property because house prices happen to have fallen. Is the borrower protected by the NCCP?'
And this is the response from Treasury...
'Dear Mr xxxxxxxxx Thank you for your inquiry. We understand that some lenders will require the borrower to reduce their liability to a specified amount to reduce their risk exposure where property values fall. However, this is restricted to lines of credit or interest only loans where the principal is not required to be reduced until the end of the contract. We are not aware of any normal ‘principal and interest’ home loans where the lender has the right to sell a property simply because property values fall. However, a provision of this type, if included, could infringe the unfair contracts terms legislation in the Australian Consumer Law. We trust that this information is of assistance to you. Consumer Credit Unit Retail Investor Division The Treasury, Langton Crescent, Parkes ACT 2600'
Note that when Treasury refers to 'interest only loans where the principal is not required to be reduced until the end of the contract', they're talking about commercial or developer loans, where principal must be repaid in full at the end of the fixed term. Normal property investor IO loans just roll over to P&I at the end of the fixed term.
And the regulations appear to work. Despite house prices having fallen many times across Australia, banks have never responded by repossessing NCCP protected homes. House prices in the Gold Coast area recently fell by roughly 30% from peak, yet there is no record of any borrower having had their home repossessed simply as a result of those falls. If it had ever happened, then we'd have heard about it from shows like Today Tonight and A Current Affair that love to bash the banks at every opportunity.
Banks do have a history of calling in commercial loans when property values decline, for example the recent CBA/Bankwest action. However business owners are not consumers. Commercial loans and farms etc. don't enjoy the same protection afforded to residential property by Australia's consumer credit protection laws.
It's also worth mentioning that it generally wouldn't make any financial sense for a bank to even attempt to repossess a home while the owner is keeping up with repayments, since they would be trading a performing loan for a potentially underwater asset. And even if they tried, banks can't repossess without a repossession order granted by a Court, and a Court is never going to evict a family from their home, when the family has done nothing wrong. All the bank would get for its trouble would be a slap on the wrist from the regulator, probably a large fine, and a lot of bad publicity that would drive away consumers, reduce their share price, and benefit their competitors.
As long as borrowers keep up with their mortgage repayments, don't willfully damage their home or allow it to fall into serious physical disrepair, and don't enter into the contract fraudulently, then banks are unable to take action. A general fall in property values, that occurs through no fault of the borrower, does not give the bank any grounds to repossess, and the bank would never be able to convince a Court to grant a repossession order in such a scenario.
That's why it will never happen.
Addendum: A note about Negative Equity Protection.
Some bears try to muddy the waters by stating that only Reverse Mortgages have Negative Equity Protection. This is true, but it's a separate topic.
Regular loans don't need negative equity protection.
If you're in negative equity, and decide to sell, you still need to pay the difference between sale price and loan value, in order to close the mortgage. So if you had debt of $500K, and you decide to sell but only achieve a $450K sale price, you must find another $50K for the bank. There's no protection against this for regular borrowers, which is fair enough.
But with a reverse mortgage, because the retiree is living off equity in their home, they're protected from negative equity. They can never owe more than the home is worth. If a retiree enjoys a longer life than originally expected when they took out the reverse mortgage, they could end up consuming more than the value of the home to live off. But because they have negative equity protection, it means when they eventually die or decide to sell, they only need to pay back the sale price of the home. The bank can't chase them for any excess.
'Example: Peggy and Bob took out a reverse mortgage twenty years ago. Bob passes away and Peggy is now 85 and has health issues.
Peggy decides to sell the home and move into a residential care facility. However, fluctuations in the property market and the way that debt grows in a reverse mortgage mean that Peggy now owes $1.1 million when the house is only worth $633,000.
Previously, Peggy's lender could require payment of the debt in full to release the mortgage. Now, under the new negative equity protection, Peggy will only be required to pay back the value of her home when it is sold.
This reform gives borrowers certainty about what will happen at the end of the contract, to assist their planning.'
Australian household formation has been running faster than the population growth rate since the 1960s, and the average household size has fallen to 2.6 persons per dwelling. Home ownership rates (i.e. the proportion of owner occupied homes versus rented homes) has changed little over this period, staying close to 69% (plus or minus 1-2%) since the 1960s. This means an increasing proportion of Australia’s population are establishing new owner-occupied and rented households, indicating an ongoing improvement in housing affordability over time.
(Australia's home ownership rate from the 1930s to early 1950s was around 52%, well below the 67% figure from the latest 2011 census)
“Australia has one of the highest levels of home ownership in the world. Results from the Census of Population and Housing show that home ownership levels have changed little over the past 40 years and were at 70% in 2006. Small fluctuations in measured home ownership rates derived from census data in part reflect methodological differences from Census to Census” - ABS
“Survey of Income and Housing (SIH) show both those households that own the dwelling in which they currently reside and the ownership of other dwellings. The 2009-10 SIH results show that 68.8% of all households in 'not very remote' Australia own (with or without a mortgage) the dwelling in which they currently reside (down from 70.2% in 2003-04). However, when those who are in tenures other than owner-occupation but own residential property are added, the proportion of all households that own residential property rises to 72.8% (no significant change compared to 2003–04).” – ABS
Housing is second highest taxed sector of the Australian Economy
Property bears and renters often rail against first-homebuyer grants and negative gearing. They claim their taxes are used to 'prop up' the housing sector.
This is a nonsense.
None of the tax they pay goes to the real estate industry. In net terms the government gives no money at all to the housing market.
In fact, grants and negative gearing benefits are fully funded (and then some) by taxes taken from homeowners, buyers and developers.
Negative gearing costs the government approx. $2.5b per annum (tax forgone on $6.5b losses claimed). FHB grants cost approx $0.7b per annum ($7K x 100,000 FHBs).
So the total government 'tax spend' on property is approx. $3.2b per annum.
This is a tiny amount, and more than fully funded by the huge fees and taxes the government imposes on homeowners and developers, including...
Rates ($9b pa), Stamp Duty ($6b pa), GST on New Dwellings ($6b pa), DA Fees ($15b pa), Land Tax ($6b pa).
The net position is that the government takes approx. $40b per annum in taxes from homeowners. They treat the real estate market as a cash cow, receiving enormous tax revenue from homeowners, and using it to fund services for others. Renters pay far less tax than homeowners. They don't pay their fair share. Homeowners subsidise renters, not the other way around.
Studies have shown that total tax component of a new Australian house is 40% of the purchase price. By advocating the removal of grants and NG benefits, bears are effectively advocating even higher taxes on housing, which is already the second highest taxed sector of the Australian economy.
The housing sector is one of the most heavily taxed sectors of the Australian economy, both in absolute and relative terms. The housing sector contributes between $36 billion and $40 billion in taxation revenue each year to federal, state and local governments in Australia. This equates to 11 to 12 per cent of the total revenue collected by all tiers of government. Only one sector, wholesale and retail trade, contributes more and its contribution is only marginally larger.
The total taxation burden on a new home can now be well over 40% of its purchase price - most of which is borne by the home buyer. This means that the tax component of a new home is now so large, it usually exceeds the costs of land.
Property bears often claim that Australia has a housing bubble, and they compare Australia to other countries that are known to have had housing bubbles that did burst. Such countries include the USA, Ireland, UK, Spain and Japan. Each of these countries had a confirmed housing bubble. Those housing bubbles were confirmed because they burst, and that is the only way to confirm a bubble. Bubbles can only be confirmed beyond doubt in hindsight, after they burst (because they burst).
However, there are indicators that may be used to identify the absence or presence of a potential bubble. We have enough experience of housing bubbles that burst in other countries to be able to examine the characteristics common to most confirmed housing bubbles.
The housing bubbles in USA, Ireland, UK, Spain and Japan had something in common. They were all characterised by a sharp rise in the house price to income ratio as the bubble inflated, followed almost immediately by a sharp fall in this ratio as the bubble collapsed after prices peaked.
The charts below illustrate this phenomenon quite clearly.
We can use this pattern (the sharp rise in the price/income ratio as the bubble inflates, followed immediately by a sharp fall as the bubble collapses) to determine whether Australia is likely to have a housing bubble at the present time. In Australia, the house price to income ratio did rise sharply until it reached a peak in 2003. At this point one would normally expect the ratio to collapse, if this was indeed a bubble. Instead, the house price to income ratio has remained close to that 2003 level for almost a decade. Now in December 2011, the ratio is still where it was in 2003. This is not normal bubble behaviour. Bubbles (not just housing bubbles, but all asset bubbles) are normally characterised by a sharp rise followed almost immediately by a sharp fall after prices peak. A house price to income ratio that doesn't fall shortly after a peak might be a good indicator for the absence of a property bubble.
Therefore, either Australia does not have a housing bubble, or we have a new type of bubble - a special/different form of property bubble never experienced before. I suspect the former explanation is the more likely. Either way, it is obvious from the charts that Australian property does not necessarily follow the path set by the other countries that the housing bears like to compare us to. Their claims that Australia has a property bubble just like USA/Ireland/UK/Spain/Japan, and that Australian property must crash just like those countries, are clearly unfounded, because we have not experienced house price changes that mirror anything like the changes in those other countries. The present house price to income ratio in Australia has held close to 2003 levels for almost a decade and there is no reason why that ratio needs to suddenly collapse. The current ratio appears to be sustainable.
But almost half a million families and individuals bought homes in Australia last year. So while housing may be unaffordable to some (has it ever been otherwise?) plenty of people do seem to be able to afford to buy houses. So how come so many people are buying houses in a country that Demographia claims to be completely unaffordable?
Obviously there must be many flaws in the Demographia survey, some of which I will outline here.
For a start, the Demographia survey uses a very simplistic measure of affordability - the median house price to median gross household income ratio. Using gross household income is an inappropriate way to determine household spending power, because the spending power of a household is based on the amount of gross income remaining after costs are deducted for essentials such as taxes, food, transport, clothing etc. Differences in tax rates and cost of living pressures across various countries make a comparison of spending power based on gross income meaningless.
Furthermore, there is no reason why a family on median wage income should feel entitled to be able to afford a median house, because houses are not purchased using wage income alone. Houses are purchased using wealth. A better measure of a household's ability to afford property would be to consider household discretionary income and total wealth. This would include non-wage income (such as income from interest, shares or other investments), and wealth stored in other assets (such as shares or equity in existing property) that may be liquidated or borrowed against in order to fund a new property purchase. A family with median wealth should feel entitled to a median dwelling, but an FHB on median wages (with no other wealth) should not.
Note that I don't agree with using imputed rent (because it isn't actual money) or superannuation (because it's not easily accessible to most people) in income/wealth calculations for the purposes of determining dwelling affordability. However I do believe rental income (and real income from any other investments including savings interest) should be included, along with any liquid assets or easily leveraged assets such as equity in existing property. The reality is that people can and do use those forms of wealth to buy property.
The average loan size in Australia is approximately 60% of the median dwelling value as shown here...
"Between October and November 2010, the average loan size for first home buyers fell $4,900 to $277,900. The average loan size for all owner occupied housing commitments rose $600 to $287,300 for the same period."
This shows that people are putting considerable wealth (in the form of savings/equity etc.) towards their property purchases, in order to reduce the size of the loan that must be serviced using wage and non-wage income.
Additionally, the Demographia survey only considers the initial purchase price of the house, but not the total holding cost. For example, homeowners in the USA are required to pay large annual property taxes, which over the course of their lifetime will result in the total housing cost being similar to or higher than that in Australia, despite the much lower initial purchase price in the USA.
The survey also fails to consider dwelling size. Houses in Australia are, on average, the largest in the world, so when comparing median houses it is important to note that a median dwelling in Australia is much larger than a median dwelling in the other countries. Why would Australians build the largest houses in the world if our houses are supposedly unaffordable? Wouldn't we build smaller less expensive ones if that was the case? The truth is that Australians have high incomes, Australia is a prosperous country, and as a nation we choose to spend a large portion of our disposable income on nice large well appointed houses. Clearly we can afford to do that.
Another major failing with the Demographia survey is its measure of median house price. The official median house price figures that Demographia use for Australia are sourced from the Australian Bureau of Statistics. However these ABS figures only include freestanding houses. They don't include units or townhouses, meaning that Demographia are overstating median house prices in Australia compared to the other countries assessed in their survey (countries where units and townhouses are included when calculating the median house price).
So, the Demographia survey compares median house price to income ratios across various countries, but clearly there is no reason why those house price to income ratios should be consistent across each country, because there are substantially different factors impacting the housing markets in each country. The Demographia survey fails to consider the following important factors:
- Disposable/discretionary income - Wealth (including wage income, non-wage income, and assets) - Employment rate - General cost of living (affects spending power) - Interest rates - Credit availability - Rental yield - Availability of public housing - Marginal tax rates - Mortgage default rates - Tax incentives such as negative gearing, FHOG, CGT reductions - Land/block size - Dwelling size and quality - Proximity to transport and infrastructure - Currency exchange rates - Economic and political stability - Average persons per dwelling - Home ownership rates - Urbanisation - Population growth rate - Demographics (it is ironic that a survey called Demographia ignores basic demographics!)
Of course, no survey is perfect and no survey can possibly hope to account for all these factors. The best we can do is try to look at as many different surveys as possible, each of which address a few of these factors, and this will give an better general impression of comparative affordability in each country, rather than looking at just one survey (I have linked to twelve alternative surveys below).
We should note that the historical '3 x income' house price affordability ratio that some bears cling to are no longer valid, because interest rates are historically low, and a large number of buyers today have large deposits, dual incomes, high discretionary income, and in the case of investors, rental income and negative gearing to off-set the holding costs. Although dual income families have been around for some time, lenders are increasingly willing to recognise the second income and allow families to borrow at a higher level.
The RBA demonstrated that 25-39 year olds today still have more real household income left over after buying a 30th percentile house than at any time in the past 30 years.
Returning to the 'demographic' failings of the Demographia survey, take for example Demographia's claim that a certain 'sea-change' town in Australia is particularly unaffordable. They base this on the median house price to medium income ratio in that town. What they fail to consider is that the median income there is largely irrelevant, because much of the population are cashed-up retirees (zero income) with substantial savings who purchased a large beach house, often with very low borrowings. Sure, these beach houses may be unaffordable to a first home buyer who works in the local supermarket, but that's not the primary demographic driving house prices in the town.
Another key issue with Demographia is that it compares cities in Australia with cities in only six other countries, yet the media proceeds to claim that Australia is the 'most expensive country in the world'. The survey conveniently ignores all the many cities around the world with much higher house prices than Australian cities. For example Moscow, Tokyo, Oslo, Seoul, Hong Kong, Geneva, Zurich, Milan, Paris, Singapore, Monaco. Here are some alternative studies...
Three of the above surveys quote data from the others, but they do also add their own additional information and commentary, so I have included them anyway. Although these surveys are not always directly related to house price per se, they are all directly related to affordability. Some of the surveys do show that dwelling prices are lower in Australia, while others show that rents are lower here, and others show that the cost of living is lower. Taken together (along with Demographia survey), would suggest that Australia is somewhere in the middle of the road in terms of global housing affordability.
Back to the Demographia survey. So far, I have discussed the flaws in the Demographia survey in general terms, and I have explained why I don't believe median house price to gross household income is a particularly useful way to measure affordability. But anyway, that's the ratio that the Demographia survey does use, so let's look at some of their figures in more detail.
If you're going to use gross household income, then you should at least get the figures right. Demographia claims that the median gross household income for Sydney is $66,200. It is unclear how they derive this figure - it doesn't exist in any of the official ABS statistics for Sydney. However the Demographia survey does state the following (on page 46 of their most recent report):
"Median household income data is generally estimated using the most recent national statistics bureau (census) base for each metropolitan market and adjusted to a current estimate by the best available indicator of median income growth. In the United States, the United Kingdom, China, New Zealand and Ireland, specific metropolitan area interim adjustments are possible from data sources. However, in Canada and Australia, it is necessary to use more general provincial or state level data."
Is the Demographia survey using the median income for the whole of NSW, rather than for Sydney? And then comparing this to the median freestanding house price in Sydney itself? It's really not clear how they derive their income figures, but the site here (http://www.abcdiamond.com/australia/australian-median-income-2006-and-2010/) suggests that the median gross household income figure for Sydney is likely to be closer to $82K for the Sydney Locality (rather than Demographia's claimed $66K), or $107K for the Sydney LGA. Quite a difference.
And various sources (RPData, Residex, APM) put the Sydney median dwelling price at around $525K (rather than the Demographia figure of $634K for freestanding houses only).
So if we take the more accurate median home price to gross household income figures, we get a ratio of 525/82 = 6.4 for Sydney, rather than the 9.6 ratio claimed by Demographia.
Does this ratio of 6.4 mean Sydney houses are really affordable after all? Not necessarily. In my opinion this ratio is almost as meaningless a measure of 'affordability' as Demographia's 9.6 figure (but at least 6.4 is more accurate as a house price to gross household income ratio). As mentioned above, the spending power of an average family depends on many things, not just their gross household wage income. In my view, the best way to determine whether homes in Australia are affordable or not is to employ a little common sense.
1 - Would we choose to build the largest homes in the world if homes were unaffordable? 2 - Would half a million families and individuals (approximately) be buying homes every year if they couldn't afford those homes? 3 - Would we have one of the lowest mortgage default rates in the western world if people couldn't afford their homes?
I believe the answer to each of those questions is 'no'.
Can every first home-buyer in Australia afford the home they desire right away? Of course not... they never could. But any family willing to work hard can afford a home of some description, and as they progress through life, increasing their income and wealth, over time they will be able to afford comparatively better houses. Once they have achieved median wealth then the average family can afford a median dwelling, and later in life an average family who continues to build their wealth can afford increasingly higher quality dwellings. This is the way it has always been.
Some people might argue that housing was apparently 'affordable' in the USA, Spain and Ireland prior to their recent property crashes. I will point out that this blog is not an attempt to prove that house prices in Australia can't fall. House prices in Australia can fall, have fallen in the past, and will do so in the future. They could even crash given sufficiently adverse conditions in the future.
The fact that house prices fell in Spain, Ireland and the USA does not necessarily mean that prices there were unaffordable. Cheap affordable things can fall in price, and often do. In my opinion, prices fell in those countries predominantly due to an over-supply of housing following construction booms. Home-buyers in those countries could afford their houses when they were first purchased, under the environment at the time of purchase, however conditions later changed so that some of those people could no longer afford their homes.
If conditions change for the worse in Australia then some people here may also be unable to afford their homes. Credit could tighten, interest rates could rise, unemployment could rise. Similarly those factors (and many others) could improve, rather than worsen. Many things could happen in the future to either reduce or improve affordability. However the Demographia survey is not saying that houses in Australia are unaffordable because conditions might change in the future to make them unaffordable. The Demographia survey is claiming that house prices in Australia are severely unaffordable today, under our present environment, which includes our present employment levels, interest rates, credit availability, and all of the factors mentioned in the bullet points above.
In conclusion, I believe that under present conditions, homes in Australia are affordable. I also believe the Demographia survey is flawed, and does not consider enough factors to be able to determine where Australia ranks in housing affordability compared to the other six countries surveyed.
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