Rules of conduct
12/07/2018
Schedule 1 of the Residential (Land Lease) Communities Act 2013 sets out the rules of conduct for operators and section 54 of the Act requires compliance with those rules.
The rules of conduct are comprehensive and if they are followed operators would: understand the laws relevant to operating a land lease community; act honestly fairly and professionally; and they would not engage in high pressure tactics, harassment or harsh or unconscionable conduct. But what happens if an operator doesn’t comply with these rules?
Enforcement
There are two things a home owner can do if an operator breaches one or more rules of conduct – they can make an application to the NSW Civil and Administrative Tribunal (NCAT), or make a complaint to NSW Fair Trading.
At NCAT the home owner faces the difficult task of proving the operator breached a rule. They need evidence and this can sometimes be difficult to obtain. Other home owners often don’t want to get involved so it comes down to oral evidence, and NCAT has to choose between the (usually contradictory) evidence of the home owner and that of the operator.
If the home owner does prove a breach NCAT may order the operator to comply in the future but how does the home owner enforce that order? They can’t, and if the operator breaches the rule again, or breaches a different rule the home owner has to go back to NCAT and they face the same difficulties as the first time.
Home owners who have made complaints about operator conduct will know that Fair Trading also require ‘hard evidence’ before they will take action. Hard evidence includes documents from the operator that demonstrate a breach of the rules, or NCAT orders.
Taking action regarding operator conduct can be a difficult and stressful process and many home owners either don’t try or give up. Home owners have told the Tenants’ Union there is no way to enforce the rules of conduct and operators can behave in any way they want without fear of penalty. In this article we share two stories from home owners...
Robert & Fay
Robert and Fay (not their real names) bought their home and moved into the community in 2014. They were not given a written site agreement and although they weren’t initially concerned about that, over time they did become concerned about the way the community was operated. When the law changed on 1 November 2015 Robert and Fay decided it might be an opportune time to get some information and advice.
Robert and Fay organised a meeting for home owners with their local Tenants Advice and Advocacy Service. The Tenants Service provided them with information about their rights and responsibilities and for many it was a real eye opener.
On hearing about this meeting the operators got some advice of their own including that home owners were entitled to written site agreements. They asked all home owners to sign site agreements under the new Act. The agreement offered included some new charges so Robert and Fay decided not to sign it – it was more beneficial for them to stay on their oral site agreement. The operators immediately began treating them differently.
NCAT Applications
Robert and Fay realised they were being overcharged on their electricity service availability charge (SAC). They only receive 40 Amps of electricity but the operator was charging 100% of the SAC. They raised this with the operator and participated in mediation but the operator refused to reduce the charge. The home owners were left with no choice and applied to NCAT in early 2017.
The operator responded by also making an application to NCAT to try and force the home owners into a site agreement under the new Act and asserting that Robert and Fay were in arrears with their site fees. The application for an order about the site agreement was dismissed and NCAT found there were no grounds to make an order about the site fees because Robert and Fay were actually in advance with their site fees.
Following the NCAT hearing on electricity charges, but before a decision had been made, the operator approached the home owner on the site adjoining Robert and Fay’s site and asked them to agree to have their power supply reduced to 20 Amps. This would enable the operator to increase the 40 Amp supply to Robert and Fay to 60 Amps and therefore charge SAC at 100%.
In January 2018 NCAT determined the level of supply to Robert and Fay’s site was 40 Amps. The operator was ordered to reduce the SAC to 70% and to refund $167.79 in overpaid charges.
Robert and Fay had also sought an order from NCAT that the operator provide copies of their electricity bills. They believed they were being overcharged for electricity usage as well as SAC and wanted to check. NCAT ordered the operator to provide the bills and awarded photocopying costs at commercial rates. The operator charged Robert and Fay $66.00 for copies of the bills before deciding not to provide them and refunding the money.
In the meantime the operator made another application to NCAT, this time seeking termination of Robert and Fay’s site agreement. The operator alleges breaches of the Act and of the community rules but there is little substance to the application.
In January 2018 the operator issued a termination notice to Robert and Fay, again citing breaches of the site agreement.
In February 2018 the operator appealed the decision of NCAT regarding the service availability charge and provision of electricity bills. In May the Appeal was dismissed.
In April, Robert and Fay became aware that a petition was being circulated around the community asking other home owners to sign in support of their eviction.
Robert and Fay feel totally unprotected by the law and have decided that once the NCAT proceedings have finished they will put their home on the market and leave the community. They do not believe there is any other way to stop the harassment.
Evelyn
Evelyn lives in a different land lease community but she has also suffered at the hands of the operator. Evelyn has lived in her community for 18 years and in that time she has assisted many residents by providing them with information and representing them at the Tribunal. Evelyn believes it is this advocacy that has led to her recently being issued with a termination notice.
When Evelyn first moved into her community she purchased a home close to the managers office. She was happy for the first two to three years but when the manager changed the disputes started. There were rumours spread about Evelyn, and a Tribunal application made against her that was later withdrawn. Then without notice, her boom gate key was deactivated locking her out of the park and the manager said she couldn’t provide another one.
Evelyn suffered a serous injury when the park owner slammed a door on her shoulder and she later received a compensation payment for this injury.
Evelyn decided to move out of reach of the manager and she purchased a different home in the community – as far from the office as she could get.
When she purchased this home Evelyn used to access one side of it by walking up and down the adjoining driveway. She needed access to reach her power box, clean her windows and tend to a garden. Evelyn did this for 10 years and always understood she had a right of access because there were several similar arrangements in place across the community.
When ownership of the home next door changed the new home owner parked a large vehicle in the drive making access difficult. Evelyn used the driveway as she had always done and was abused by the neighbour and told to get off the driveway. Evelyn approached the operator for support but instead they supported the other home owner and told her she could not use the driveway for access.
Evelyn took the dispute to NCAT in 2016 and the Tribunal made orders that she had the right to use the driveway for access. The neighbour however continued to abuse her for doing so and the operator continued to support the neighbour.
Evelyn went back to NCAT in 2017 and this time the Tribunal decided that she was not permitted to use the driveway for access.
Later in 2017 when the operator issued a site fee increase notice Evelyn assisted around 80 home owners to challenge the increase as excessive. When mediation failed Evelyn represented the home owners at NCAT and was successful in arguing the increase was excessive.
In the meantime the operator issued Evelyn with a termination notice because she used the driveway to water her garden. Evelyn has now installed a watering system and has not used the driveway again but the operator has told her they are still going to NCAT to press for termination of her site agreement.
Evelyn mentioned many more incidents of what she considers to be harassment by the operator that are not included in this article. She told us she has made complaints to Fair Trading but she doesn’t believe she was listened to and as far as she is aware no action was taken.
What you can do
The Tenants’ Union encourages home owners who believe their operator is breaching the rules of conduct to take action – it is the only way to improve operator behaviour. It is quick and easy to make a complaint to Fair Trading and even though Fair Trading may not act at the time, the complaint is stored on their database and if further complaints are lodged about the same operator Fair Trading may decide that action needs to be taken.
Home owners can also support each other. Those who witness an operator behaving badly towards another home owner can provide a statutory declaration or witness statement that can be presented as evidence at NCAT, or to Fair Trading.
There is no doubt that bad behaviour by operators is difficult to prove but nothing will change unless home owners take action – it is up to you.
Rules of conduct for operators
1. Knowledge of Acts and regulations
An operator must have a knowledge and understanding of:
(a) the legislation, which in these rules refers to:
(i) the Residential (Land Lease) Communities Act 2013 and regulations under the Act, each as in force from time to time, and
(ii) the Local Government Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (or its replacement), as in force from time to time, and
(b) such other laws relevant to the management of a community (including, laws relating to residential tenancy, fair trading, trade practices, anti- discrimination and privacy) as may be necessary to enable the operator to exercise his or her functions as operator lawfully.
2. Honesty, fairness and professionalism
(1) An operator must act honestly, fairly and professionally with all parties in a negotiation or transaction carried out as operator.
(2) An operator must not mislead or deceive any parties in negotiations or a transaction carried out as operator.
3. Skill, care and diligence
An operator must exercise reasonable skill, care and diligence.
4. High pressure tactics, harassment or unconscionable conduct
An operator must not engage in high pressure tactics, harassment or harsh or unconscionable conduct.
5. Confidentiality
An operator must not, at any time, use or disclose any confidential information obtained while acting on behalf of a resident (which in this rule includes a prospective resident or former resident) or dealing with a resident, unless:
(a) the resident authorises disclosure, or
(b) the operator is permitted or compelled by law to disclose.
6. Ensuring employees comply with the legislation
An operator must take reasonable steps to ensure persons employed in the operation of a residential community comply with the legislation.
7. Selling homes
An operator, when acting as a selling agent for more than one home in a community, must act fairly and advise prospective home owners of the details of all available homes in the community.
8. Soliciting through false or misleading advertisements or communications
An operator must not solicit prospective residents through advertisements or other communications that the operator knows or should know are false or misleading.
9. Insertion of material particulars in documents
An operator must not submit or tender to any person for signature a document, or cause or permit any document to be submitted or tendered to any person for signature, unless at the time of submission or tendering of the document all material particulars have been inserted in the document.
10. Representations about the legislation
(1) An operator must not falsely represent to a person the nature or effect of a provision of the legislation.
(2) An operator must not, either expressly or impliedly, falsely represent, whether in writing or otherwise, to a person that a particular form of agreement or any term of such an agreement is required by the legislation.