Tales from the Tribunal
29/08/2017
The NSW Civil and Administrative Tribunal (NCAT) hears disputes between land lease community operators and residents. Decisions that NCAT makes about disputes are not binding on other NCAT Members who hear similar disputes but they can provide guidance so it is useful to know what NCAT has decided about a particular issue.
Electricity usage charges
One of the big areas of dispute and confusion under the Residential (Land Lease) Communities Act 2013 (the Act) is electricity usage charges. We reported on this in the last edition of Outasite (November 2016) but there have been some developments this year, including a decision by NCAT.
Section 77 of the Act provides that operators who supply electricity to home owners can only charge for the use if the site agreement permits it, the supply is separately measured or metered, and the operator provides an itemised account with 21 days to pay.
Electricity usage is charged by the kilowatt hour (kWh) and the Act sets a limit on what the operator is allowed to charge home owners. The most an operator can charge is the amount they are charged by the company that supplies the electricity to them. For example, an operator buys electricity from Origin Energy at the rate of 6.5c per kWh. They must charge the home owner no more than 6.5c per kWh for electricity.
To enable home owners to check that they are being correctly charged section 83 of the Act requires operators to provide home owners with reasonable access to bills or other documents related to their electricity charges.
In February this year NCAT heard a dispute under section 83 of the Act. The home owners brought the application because they wanted to check what the operator was paying for electricity so they could compare that to what the operator was charging them. At NCAT the operator argued that section 83 did not relate to the operators bills because those bills are not relevant to electricity usage charges payable by the home owner.
The home owner asserted that section 83 could not be about anything other then the operators bills. The home owner referred to section 77 and said that it was impossible for them to check that they were being correctly charged without access to the operator’s bills. NCAT agreed and ordered the operator to provide copies of their electricity bills to the home owner. A copy of this decision can be found on the NSW Caselaw website. See www.caselaw.nsw.gov.au
The home owners were represented by a Tenant Advocate from South West NSW Tenants’ Advice and Advocacy Service.
Interference with sale
In another case a home owner applied to NCAT because they felt the operator had interfered with their right to sell their home on site.
Section 107 of the Act deals with interference with sales. It provides that an operator must not cause or permit any interference with a home owners right to sell their home. It then sets out some examples of interference, one of which is “taking any action to require the home owner to comply with any requirement made by or under the Local Government Act 1993 after becoming aware that the home owner is seeking to sell his or her home (unless the matter has been subject to previous action).”
Essentially this says that if the operator has not already started action around compliance requirements they cannot do so after being notified that the home is to be sold.
In the case before NCAT the home was a caravan and annexe, which the home owner had occupied for over ten years. In 2005 the operator had raised some issues regarding one of the structures on site not complying with the local government regulations. The home owner made some changes to the structure and the operator gave their approval.
In 2013 the operator raised compliance issues with a different structure and they were dealt with at the Tribunal that same year. Since 2013 the operator had not discussed any issues of non-compliance with the home owner.
At NCAT the home owner said that in March 2016 they advised the operator that they were going to put their home up for sale. The operator then began advising prospective purchasers that the bathroom was non-compliant with local government regulations and would have to be removed.
NCAT found that the operator had interfered with the sale of the home by making such a statement to prospective purchasers.
This decision is not publicly available but the home owner has given consent for this information being published. The home owner was represented by a Tenant Advocate from Illawarra Tenants’ Advice and Advocacy Service.