Who is the operator?
This may sound like a silly question but the answer is not always as obvious as you may think.
The Residential (Land Lease) Communities Act 2013 (the Act) defines an operator as being ‘the person who manages, controls or otherwise operates the community, including by granting rights of occupancy under site agreements or tenancy agreements whether or not the person is an owner of the community’.
An owner is ‘the owner of the land on which the community is located’. Sometimes the owner and operator are one and the same and sometimes they are different.
A number of operators carry on their business under increasingly complex corporate structures. This can at times complicate the question of who effectively runs or controls a community. One example of this phenomenon is The Pines Resort in Woolgoogla, which was previously part of Gateway Lifestyle Group prior to the takeover by Hometown Australia in October 2018.
A closer look at the corporate entities surrounding The Pines Resort reveals no less than six proprietary companies which are related through various subsidiary relationships and shareholdings. All of the companies that exist within the ambit of The Pines are effectively controlled by Hometown – through mutual officeholders and majority shareholdings, and yet it is Hometown Australia’s position that they are not the operator of this community.
The question of who satisfies the definition of ‘operator’ under section 3 of the Act in relation to communities like The Pines, and in particular whether one of Hometown’s entities would be found to meet that definition, is one which has not yet been tested by the NSW Civil and Administrative Tribunal (NCAT).
There can also be another layer in the hierarchy and that is the management layer. The operator of a community may appoint managers to handle the day to day operation of the community but that does not necessarily mean the managers become the operators.
If you don’t know who your operator is but want to find out there are a couple of ways to check.
Firstly, if you have signed a site agreement under the Act you can find the operators’ name on that agreement under the section headed ‘Details of the parties’.
If you have an older site agreement it will refer to the park owner and manager so may not be helpful in determining who your operator is. However, all is not lost – you can ask NSW Fair Trading to provide you with the name of your operator.
The Act requires the Commissioner for Fair Trading to keep a register of all land lease communities in NSW and to make some of the information in the register available to the public. That includes the name of the operator of each community. The register is available on the NSW Fair Trading website but the names of operators are not yet available online. However, you should be able to call Fair Trading and ask who your operator is.
Why you need to know
There are a few occasions when you are required to notify the operator before you do something, for example, before putting your home on the market or leaving your site vacant for more than 30 days. For most home owners this means notifying the person who does the day to management of the community even if they are not the operator. By notifying the manager you are in effect notifying the operator.
However, if you need to make an application to the Tribunal you need to properly identify the operator and their business address on the application form. The application from requests a copy of a business name extract or company extract from ASIC if the respondent (operator) is a company or business. The Tribunal has acknowledged in the past that this is not a requirement if you know the name and business address of the operator but if you are unsure it is best to do an ASIC search and provide a copy with your application.
Change of operator
From time to time the operator of a community may change but when that happens the Act requires the operator to inform all home owners within the community. The new operator must provide home owners with a notice stating their name and business address within 14 days of becoming the operator. Don’t forget to keep a copy of any such notifications.
A change of operator has little immediate impact on home owners because the benefits and obligations under existing site agreements pass from the old to the new operator.