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LAND LEASE COMMUNITY NEWS

How did we get here?

With the review of the Residential (Land lease) Communities Act 2013 due to commence at the end of the year we thought it would be interesting to take a look at the history of tenancy legislation in residential parks in NSW.

The earliest record of any legislation regarding tenancies in caravan parks appears to be in the Landlord and Tenant (Amendment) Act 1948. Special provisions were included in this Act to control the rents of caravans and sites. The Rent Controller was given the power to publish the maximum allowable rents for caravans or sites in various parts of the State. In the second reading speech on 5 November 1952, the then Attorney General Mr Martin said “In certain localities in this State caravans are let to people for more or less permanent habitation at quite exorbitant rentals. This is common practice. ... Also exorbitant rentals are being demanded for the land on which these caravans are stationed and this is another feature of the problem.”

Almost seventy years later exorbitant site fees are still an issue – if only we still had the Rent Controller. It is believed the rent control provisions were never used; they were deleted from the Act in 1987.

On 1 December 1986 Ordinance No. 71, made under the Local Government Act 1919, came into force. Ordinance No. 71 introduced a licensing system for caravan parks and legalised caravan park living for the first time in New South Wales.

In October 1989 permanent residents were provided with tenancy rights through the Residential Tenancies Act 1987. This legislation was written for the more conventional landlord/ tenant relationship but was amended to also cover park residents. Many felt the Act fell short as it failed to address issues such as security of tenure, park rule disputes and the sale of homes on-site.

In an attempt to address some of these concerns the government introduced the Mandatory Code of Practice for the Caravan/ Relocatable Home Park Industry. Primarily the Code covered: disclosure of information; a mechanism for resolving park rule disputes; and quiet enjoyment. The Code was meant to compliment the provisions in the Residential Tenancies Act 1987 and was enforceable through the Fair Trading Act 1987. It commenced on 30 March 1992.

Concurrent amendments were made to the Residential Tenancies Act including: to extend the minimum notice period for no cause terminations from 60 to 180 days; provide access to the Tribunal regarding park rule disputes; and prevent the park owner from unreasonably refusing consent to the assignment of a tenancy agreement in certain circumstances.

Ordinance No. 71 was repealed in 1993 with the commencement of the Local Government Act 1993. Under section 68 local council approval is required to operate a caravan park or a manufactured home estate (land lease community).

The Opposition

In 1994 Deirdre Grusovin, MP, Member for Heffron and Shadow Minister for Housing responded to calls for separate legislation for park residents. She drafted and circulated a working paper in May 1994 to facilitate discussion and seek input into a Bill that would be put forward by the State Opposition.

On 3 August 1994, Deirdre Grusovin briefed the Shadow Cabinet and Caucus regarding the need to separate tenancy legislation for caravan parks, and recommended the preparation of a Private Members Bill to specifically address:

Grusovin
   Deirdre Grusovin
  • security of tenure for park residents
  • premiums and commissions on the sale of homes where the park owner performs little or no work regarding the sale • the charging of visitors fees
  • the method of charging for power and water where the services are not separately metered.

The Residential Tenancies (Relocatable Homes) Bill 1994 was presented to Parliament by the Opposition on 27 October 1994. Debate was adjourned by Mr Downy, Minister for Sport, Recreation and Racing.

The Government response

The Parliamentary Secretary for Housing and Planning, Don Page MP, was obviously feeling the pressure and in July 1994 he put out a media release calling for the government to introduce special legislation to cover tenancy arrangements for caravan parks, village and mobile home parks.

The government responded and in late July, meetings were held with the industry association and park resident groups, alongside a commitment to review the legislation.

In September 1994 the government released a Discussion Paper entitled ‘Review of Tenancy Legislation Affecting Permanent Residents of Caravan Parks and Manufactured Home Estates.’ The main discussion points were: security of tenure; rent increases; park rules; tenancy agreements; fees and charges; the role of the Tribunal; and abandoned goods. Interested Groups and parties were invited to make submissions on the issues covered by 18 October.

The government introduced the Residential Tenancies (Caravan Parks and Manufactured Home Estates) Amendment Bill 1994 to Parliament in November. It was assented to on 12 December 1994. This was not a new Bill however; it was a Schedule to the Residential Tenancies Act 1987 (Schedule 3).

The Residential Tenancies (Caravan Parks and Manufactured Home Estates) Amendment Act 1994 removed no grounds termination notices for residents who owned their dwelling and introduced specific grounds for termination. The Act also provided for compensation for termination or relocation where the resident was not in breach.

On 31 August 1995 the Residential Tenancies (Moveable Dwelling) Regulation 1995 commenced. It was the first separate Regulation for tenancies in caravan parks.

The Residential Tenancies Amendment Bill 1996 made further amendments to the Residential Tenancies Act 1987 regarding compensation for termination or relocation.

Separate legislation

In September 1997 the Department of Fair Trading published an Issues Paper – ‘Tenancy Issues of Concern to Residents of NSW Caravan Parks and Manufactured Home Estates.’ It set out possible options to address concerns regarding: rent increases; dispute resolution and the Tribunal; the uncooperative attitude of park owners; water and electricity charges; park rules; local government issues; and, pre-purchase arrangements.

The outcome of this review was published in February 1998.

In October 1998 The Residential Parks Bill Exposure Draft was released. The object of the Bill was to set out the basic rights and obligations under the residential tenancy agreements of residents and park owners of residential parks (caravan parks and manufactured home estates).

The Residential Parks Act 1998 was assented to on 8 December 1998 and commenced on 1 March 1999. The Residential Parks Regulation 1999 followed and also came into effect on 1 March 1999.

The Residential Parks Amendment Regulation 2000 made a number of amendments to the previous Regulation including prescribing additional subject matter for park rules; how a park owner was permitted to deal with abandoned goods; and dealing with certain fees and charges. In 2004 the review of the Residential Parks Act commenced with submissions to be made by 16 August.

Following the review, the Residential Parks Amendment (Statutory Review) Act 2005 introduced changes including: additional disclosure requirements; providing that oral tenancy agreements would be taken to include all standard terms; preventing termination notices being issued for change of use where development consent is required, unless consent has been obtained (under the Environmental Planning and Assessment Act 1979); extending the period for vacation for termination for change of use from 180 days to 12 months; and, further amending the compensation provisions for termination and relocation.

In July 2006 the government released a Regulatory Impact Statement on the Residential Parks Regulation 2006 and a public consultation draft of the Regulation. The new Regulation commenced on 1 September 2006.

After 2005 only minor amendments were made to the Residential Parks Act 1998 until 2011 when the Residential Parks Amendment (Register) Act 2011 introduced the residential parks register.

Shortly afterwards, in November 2011 the government commenced what turned out to be the final review of the Residential Parks Act 1998 with the release of the discussion paper ‘Improving the governance of residential parks.’ It was this review that led to the current Act, the Residential (Land Lease) Communities Act 2013, which commenced on 1 November 2015.