Residents can sell their moveable dwellings on-site!

by Samantha Fradd

Does a resident have the right to sell their dwelling on-site?

Generally, the answer is yes! Residents are entitled to sell their dwelling on-site unless they have a term in their residential tenancy agreement that makes it clear that they cannot. This is called an express term.

The express term must also have been included in the questions and answers document that a park owner must give a resident when they move in. If that express term is not in the questions and answers document, then the park owner cannot enforce that term of the agreement and the resident can sell their home on-site even though their agreement says they cannot.

The only exception is if the resident lives in a caravan park that is on a Crown reserve or in a national park. These residents should seek advice about their rights if they want to sell their dwelling on-site.

Does a park owner have to sign a new residential tenancy agreement with the buyer of a resident’s dwelling?

The answer is no. A park owner does not have to enter into a new residential tenancy agreement with the buyer.

The park owner can enter into a new residential tenancy agreement with the buyer, and if they do, then the park owner and the buyer will negotiate the terms of that agreement, including the rate of rent.

The park owner may not agree to enter into a residential tenancy agreement with the buyer, and may only agree to enter into a casual occupation agreement with the buyer.

This means that the buyer is only allowed to stay in the dwelling on a casual basis and cannot live there all the time. Park owners can do this even if the resident who is selling the dwelling has been living in the park as their principal place of residence.

If the park owner will only enter into a casual occupation agreement with the buyer, this may affect the value of the dwelling as the buyer may not want to pay the resident’s price if they cannot live there.

Does a resident have the right to assign their residential tenancy agreement to the buyer?

The answer is yes, so long as the resident has the park owner’s prior consent. The resident can assign their residential tenancy agreement to the buyer. The buyer then takes over all the rights and responsibilities of the resident under the agreement.

When an agreement is assigned, all of the terms stay the same, including the amount of rent that is paid, and that the buyer has the right to live there as their principle place of residence and the permission of the park owner to do so. The only thing that changes is the name of the resident on the agreement.

Park owners are not allowed to unreasonably refuse to consent to an assignment if the resident owns a manufactured home or a caravan with a rigid annexe attached.

Can a resident apply to the Consumer, Trader and Tenancy Tribunal for help?

The answer is yes. If a park owner interferes with the sale of a dwelling, such as stopping potential buyers from coming into the park, or unreasonably refuses to consent to the resident assigning their agreement to a buyer, then a resident can make an application to the tribunal.

The tribunal can make various orders, such as:

• ordering the park owner not to interfere with the sale
  
• ordering the park owner to consent to the assignment
  
• ordering the park owner to pay compensation to the resident for the economic loss they have suffered because of the park owner’s behaviour.

An example of the resident’s loss might be where the resident has paid to advertise the dwelling for sale in a local newspaper. For this reason, the resident should always keep any receipts or other documents showing how much they have spent in trying to sell their dwelling.

Any resident who is thinking about selling their dwelling or who wants a sample Deed of Assignment should contact their local Tenants Advice and Advocacy Service for information and advice.