Comment on Draft Residential Parks (Long-term Casual Occupation) Bill 2002 Summary of Recommendations 1). We recommend that the Bill should prohibit recovery of the site without an order from the Tribunal in line with s122 of the Residential Parks Act (RPA). Further, that the penalty for a breach should be the same as s122 of the RPA. 2). We recommend that the Bill contain a clause that empowers the Tribunal to suspend or refuse to terminate an agreement in line with s114 of the RPA. 3). We recommend that the Department of Fair Trading review the notice periods under the Bill. 4). We recommend that no termination without grounds be permitted. 5). We recommend that that all posted notices are posted to both the site and the occupants' residential address. Page 1 of 23 Park and Village Service response to Residential Park
6). We recommend that clause 30(d)(iii) be amended to read as follows (iii) compensation for any other breach of the occupation agreement including compensation and relocation costs where the agreement is terminated as a result of serious and persistent breaches of agreement by the park owner. 7). We recommend that the Bill make provision for long-term casual tenants to seek orders from the Tribunal that rent increases are excessive. 8). We would recommend that the park owner only be allowed to demand 3 months rent in advance. 9). We recommend that receipts must to be given in all cases for fees paid 1 month or more in advance. 10). We recommend that the Bill contain a clause that states that all fees paid in advance must be refunded at the end of the agreement. 11). We recommend that Clause 29(1) Schedule 1 clearly states that family members permitted to occupy a site under 29(1) Schedule 1 be allowed to do so at no extra charge. 12). We recommend that park owners be prohibited from increasing rents during holiday periods on any fixed term agreement. Page 2 of 23 Park and Village Service response to Residential Park
13). We recommend that only site fees and prescribed fees be covered under the agreement. 14). We recommend that the provision under the Bill in regard to water, electricity and gas be in line with the requirements under the RPA. 15). We recommend that the Bill make provision for occupants to seek orders in the Tribunal for repairs to common areas. 16). We recommend that the Bill make provision for occupants to seek orders in the Tribunal that the rent/fee is excessive due to a reduction of services and facilities. 17). We recommend that it be a requirement that the agreement details the size of the site (dimensions or square meters). 18). We recommend that Clause 13(2) (a) and (b) be amended so as the term 'in conflict' is substituted by the word 'inconsistent'. 19). We recommend that the Department review Schedule 1 Clause 23 of the Occupants Agreement with a view to ensuring that no existing tenant is disadvantaged by this clause. 20). We recommend that clause 50(1) be amended to state that included in the park manager's responsibilities are the letting of the premises/site, to be in line with S143 (1) of the RPA. Page 3 of 23 Park and Village Service response to Residential Park
21). We recommend that a park owner should not be permitted to unreasonably withhold or refuse consent to an assignment or to the sub-letting of an occupation agreement. 22). We recommend that the Bill provide greater safe-guards than those currently being provided under the Residential Parks Act and Regulations in regard to abandoned sites and goods. 23). We recommend that the word 'sell' be deleted from Clause 39(1)(b) 24). We recommend that dwellings deemed to be abandoned or uncollected goods, be dealt with in line with the Residential Parks Amendment Regulation 2002 and that the storage period of 30 days be extended. 25). We recommend that the Bill provide for long-term casual tenants to seek orders from the Tribunal in regard to the removal, sale, auction or disposal of their relocatable homes or moveable dwellings. 26). We recommend that the safest and most effective way to provide protection to long-term tenants is to amend the existing tenancy legislation to extend appropriate provisions of the RPA to long-term casual residents. Page 4 of 23 Park and Village Service response to Residential Park
27). Should the Department not adopt the above recommendation (26), we recommend that the Department amend the Bill in a manner which will ensure that no current or future tenant, who would have been covered by the Residential Tenancies Act or any other legislation, does not suffer a loss of rights. Introduction The Park and Village Service [PAVS] operates under the auspice of the Combined Pensioners and Superannuants Association of NSW, with funding administered by the Department of Fair Trading. It is funded as a caravan park and manufactured home estate resourcing body within the Tenants Advice and Advocacy Program. Page 5 of 23 Park and Village Service response to Residential Park
PAVS aim is to provide back-up and resourcing to general tenants advice and advocacy services in their work with residents of parks and estates. Another role is the provision of training and information for tenancy workers, residents groups, and residents themselves. PAVS seeks to identify issues of concern to residents so it can develop policy and legislative responses. We often receive calls from TAAP services seeking advice on behalf of distraught long-term casual tenants seeking assistance in regard to evictions or disputes with park owners. We have been in contact with significant numbers of long-term casual tenants through community education seminars and PAVS liaises regularly with the Recreational Home and Van Owners Association. PAVS has a good understanding of the problems long-term casual tenants encounter and we are well placed to comment on their need to protect their substantial investments in their holiday homes and the tenancy on which it depends. Background Page 6 of 23 Park and Village Service response to Residential Park
We congratulate the Department for its attempt to address the issue of long-term casual tenants of residential parks. Most of these tenants who cannot meet the criteria for coverage under the Residential Tenancies Act have no legislative protection at present. This has resulted in casual tenants suffering substantial financial losses including the loss of their dwellings. Casual tenants have often been evicted following a minor disagreement with the park owners. The dwellings of long-term casuals are usually relocatable homes or vans with rigid annexes; some are manufactured homes, which can cost up to $15,000 to move. If they cannot find an alternative park to move to or cannot afford to move it, this home becomes valueless, as they would need the park owner's permission to sell it on-site which he/she is unlikely to give. There is a clear need to provide effective and enforceable legislation to protect park tenants who are not covered by either the Residential Parks Act or the Residential Tenancies Act. PAVS maintains that the most effective way to address the legislative needs of long term casual tenants is to amend the Residential Parks Act in a manner that will extend appropriate provisions of the Act to this group. This would also provide an opportunity to address some of the anomalies in the Act. One anomaly being that residents lose the protection of the RPA if they are forced to reside elsewhere other than on the park, for example, if they move into a nursing home they lose all rights to sell on-site or assign their agreement which means their dwelling becomes almost worthless. Indeed, it becomes a liability, as they will also be required to continue paying full site rent as long as the dwelling remains on-site. Page 7 of 23 Park and Village Service response to Residential Park
PAVS however welcomes any legislation which will effectively improve the rights of long-term casual tenants. In regard to the Residential Parks (Long-term Casual Occupants), Bill PAVS has major concerns with the Bill in its current form. Indeed, as the Bill stands, a significant number of park tenants could lose existing rights under the Residential Tenancies Act. We urge that adequate time be allowed to amend the Bill so that it addresses the following concerns and that further consultation be undertaken prior to those amendments being made. Termination Issues Major Concerns The Bill permits park owners to recover possession of the site without an order from the Tribunal or any court. If a park owner has a claim that the tenant/occupant has breached the agreement, the park owner should be required to prove their claim before the Tribunal in order to recover possession. As the Bill stands park owners could recover possession for a minor breach of the agreement, for example a child failing to comply with a park rule in regard to riding a bike. This is not acceptable and is poor practice. 1). We recommend that the Bill should prohibit recovery of the site without an order from the Tribunal in line with s122 of the Residential Parks Act (RPA). Further, that the penalty for a breach should be the same as s122 of the RPA. Page 8 of 23 Park and Village Service response to Residential Park
The Bill makes no provision for the Tribunal to suspend or refuse to terminate an agreement. Minor breaches of an agreement do not warrant terminating the agreement. It is not uncommon for termination proceedings to be retaliatory in nature. Consideration needs to be given to the seriousness and persistency of any breach, also to the hardship which may be incurred by the parties. To remove the majority of these dwellings can be difficult, expensive and timeconsuming. The losses which long-term casual tenants may incur are considerable, therefore, it is necessary that the Tribunal has the discretionary power to refuse or suspend an order for possession as it sees fit. Indeed, the Bill is confusing in regard to termination issues. It is unclear whether or not a tenant can apply to the Tribunal to prevent a termination after receiving a termination notice, or seek orders to have possession returned to them following a termination. Further, it is not clear that the Tribunal would have the power to prevent the termination, or order the park owner to return possession to the tenants, particularly in cases where there has been minor breach of the agreement. 2). We recommend that the Bill contain a clause that empowers the Tribunal to suspend or refuse to terminate an agreement in line with s114 of the RPA. Page 9 of 23 Park and Village Service response to Residential Park
The Bill permits a park owner to give a 7- day termination notice for breach of agreement and allows a 14- day notice of termination of a fixed term agreement without any grounds. These notice periods are inadequate. It needs to be remembered that most of these dwellings are manufactured homes or vans with rigid annexes, it is difficult to find alternative sites, contractors need to be engaged to relocate the dwelling which can cost up to $15,000 to move. We oppose any termination without grounds. Tenants incur high loses and inconvenience as a result of termination. Tenants should not incur this hardship without good reason for a termination being shown. 3). We recommend that the Department of Fair Trading review the notice periods under the Bill. 4). We recommend that no termination without grounds be permitted. Clause 45 of the Bill allows for a notice of termination to be sent to the site or the occupant's residential address. Therefore, a termination notice may only be sent to the site. As an occupant may not visit the site for some months they may be unaware of the termination notice until it is too late. Therefore, it should be a requirement that all notices are sent to both the tenants' principal place of residence and to the site. 5). We recommend that that all posted notices are posted to both the site and the occupants' residential address. Page 10 of 23 Park and Village Service response to Residential Park
Clause 30(d) of the Bill empowers the tribunal to make: (d) an order as to compensation, including (without limiting the Tribunal s power to make such an order): (i) compensation for loss of occupation fees, and (ii) compensation where a park owner withholds or refuses 30 consent to the removal of any fixture owned by the 31 occupant, and (iii) compensation for any other breach of the occupation agreement 6). We recommend that clause 30(d)(iii) be amended to read as follows (iii) compensation for any other breach of the occupation agreement including compensation and relocation costs where the agreement is terminated as a result of serious and persistent breaches of agreement by the park owner. Fees and Charges The Bill makes no provision for long-term casual tenants to challenge excessive rent increases. As it is difficult and expensive for this group of tenants to move they are extremely vulnerable to exploitation by excessive rent increases. Excessive rent increases can be a form of termination that can lead to the tenant losing their dwelling. Page 11 of 23 Park and Village Service response to Residential Park
Therefore, it is vital that this Bill provides a process for long-term casual tenants to challenge excessive rent increases. 7). We recommend that the Bill make provision for long-term casual tenants to seek orders from the Tribunal that rent increases are excessive. The Bill permits a park owner to demand 12 months fees in advance. We believe that it is unwise to enshrine in legislation the right for park owners to demand such large sums of money in advance. The Bill does not require park owners to provide receipts for amounts of money if the fees are paid into a bank account nominated by the park owner. Owing to the potential for dispute we believe it is wiser for tenants to be issued with receipts. We recommend that the park owner should only be allowed to demand 3 months rent in advance and that receipts have to be given for all fees paid in advance of a 1 month period. 8). We would recommend that the park owner only be allowed to demand 3 months rent in advance. 9). We recommend that receipts must to be given in all cases for fees paid 1 month or more in advance. We believe that in the interests of clarity and to avoid any confusion or disputes the Bill needs to contain a clause which states that all fees paid in advance must be refunded at the end of the agreement, Page 12 of 23 Park and Village Service response to Residential Park
particularly as large amounts of fees are being paid in advance. Should there be issues of arrears or other costs they can be agreed on by the parties or decided on by the Tribunal. 10). We recommend that the Bill contain a clause that states that all fees paid in advance must be refunded at the end of the agreement. Clause 29(1) of Schedule 1 states: 29 Permitting family members of occupant to occupy a site The park owner agrees to allow any family member of the occupant to occupy the site if he or she has the permission of the occupant. This includes a parent, grandparent, child, grandchild or sibling of the occupant and any other family member approved by the park owner. This clause is most welcome, however, we believe there is a need for the agreement to clarify that these family members may occupy the site at no extra charge. 11). We recommend that Clause 29(1) Schedule 1 clearly states that family members permitted to occupy a site under 29(1) Schedule 1 be allowed to do so at no extra charge. Clause 9 of the Bill permits park owners to raise their fees during holiday periods even though they have entered into a 12- month agreement. Park owners have a guarantee of year round fees for the Page 13 of 23 Park and Village Service response to Residential Park
site, it is inappropriate that they be allowed to increase fees during holiday times. 12). We recommend that park owners be prohibited from increasing rents during holiday periods on any fixed term agreement. Clause 24(b) of the Bill allows the agreement to include any other charges that the resident agrees to pay. We maintain that only prescribed charges and site fees should be payable under the agreement. If a park owner and tenant agree that the park owner will cut the grass on the site or that the tenant will buy their gas bottles from the park owner this is all well and good. However, the tenant should have the freedom to purchase these goods from anyone they choose. It is important that such agreements should be separate from the Occupation Agreement, as disputes over such matters which are not directly linked to the renting of the site, can lead to the termination of the agreement. For example, the park owner increases the price of gas bottles by 100% and the tenant refuses to pay the increase, if it is a term of the agreement then the tenant is in breach of the agreement. This could prove extremely costly to the tenant. 13). We recommend that only site fees and prescribed fees be covered under the agreement. Schedule 1 of the Bill allows for fees for water, gas, and electricity, however, the Bill does not prescribe how and when such charges can Page 14 of 23 Park and Village Service response to Residential Park
be levied. There are no requirements in regard to receipts and the information which receipts must detail. 14). We recommend that the provision under the Bill in regard to water, electricity and gas be in line with the requirements under the RPA. Repairs The Bill does not clearly provide for tenants to seek orders for repairs to common areas, nor does it allow them to seek orders for a reduction in rent, or a withdrawal of services and facilities in this regard. The provisions of common facilities are part of the reason why tenants choose to stay in any particular park. If these facilities are not fully functional then it should be the right of anyone who is paying for these facilities as part of their rent to seek orders for repairs and a reduction in rent for the period they were denied full services and facilities. 15). We recommend that the Bill make provision for occupants to seek orders in the Tribunal for repairs to common areas. 16). We recommend that the Bill make provision for occupants to seek orders in the Tribunal that the rent/fee is excessive due to a reduction of services and facilities. Page 15 of 23 Park and Village Service response to Residential Park
Schedule 1 Occupation Agreement and Related Matters. The Schedule 1 Occupation Agreement does not require that the size and dimensions of the site be recorded. Disputes over what was agreed at the time of entering the agreement in regard to the site areas are very common, as are disputes over matters relating to setback and separation of distances relating to the Local Government Act. Therefore, it is vital that this information be recorded. 17). We recommend that it be a requirement that the agreement details the size of the site (dimensions or square meters). Clauses 13(2)(a) and (b) refer to terms of the agreement not being in conflict with the Act or the standard terms of the agreement. We believe that use of the term 'in conflict' has a narrower meaning than the word 'inconsistent'. We recommend that Clause 13(2) (a) and (b) be amended so as the term 'in conflict' is substituted by the word 'inconsistent'. 18). We recommend that Clause 13(2) (a) and (b) be amended so as the term 'in conflict' is substituted by the word 'inconsistent'. We have concerns that Schedule 1 Clause 23 of the Occupation Agreement may have unforeseen ramifications for tenants who have had their dwelling on-site prior to 1993. Dwellings which were in situ prior to the Local Government Act 1993 were given exemptions from Page 16 of 23 Park and Village Service response to Residential Park
the requirements of the Act. Clause 23 of the Occupants Agreement states that: 23 Moveable dwellings must comply with law The occupant agrees to make sure that the moveable dwelling complies with any regulations under the Local Government Act 1993 with which it is required to comply. As the Bill stands under Clauses 16 and19 existing agreements will be replaced within 12 months by Schedule 1 and will include every term of the Occupation Agreement. This could result in tenants whose dwellings were in situ prior to 1993 being deemed to be in breach of the agreement because their dwellings may not comply with all the regulations under the Local Government Act 1993. 19). We recommend that the Department review Schedule 1 Clause 23 of the Occupants Agreement with a view to ensuring that no existing tenant is disadvantaged by this clause. Clause 50(1) of the Bill states: Park owner may appoint Park manager (1) A park owner may appoint a person as the park manager of the residential park, with responsibility for the day to day management of the residential park. It omits to state that included in the park manger's responsibilities are the letting of the premises/site. In the interest of clarity, we recommend that 50(1) be amended to avoid any doubt or disputes that Page 17 of 23 Park and Village Service response to Residential Park
the letting of a site by a park manager, binds the park owner to the agreement. 20). We recommend that clause 50(1) be amended to state that included in the park manager's responsibilities are the letting of the premises/site, to be in line with S143 (1) of the RPA. The Bill allows park owners to unreasonably withhold and refuse consent to assign or sublet the agreement. If consent was refused the residents would have to remove the dwelling from the site in order to sell it. Often this is very difficult and expensive. In reality the dwelling becomes almost worthless if it has to be moved off site, unless it is a small van that can be parked in a driveway, which is seldom the case. Most of the dwellings are large vans with rigid annexes, or relocatable homes, and some are manufactured homes. As the tenant may incur substantial losses if the park owner withholds or refuses consent to an assignment we recommend that a park owner should not be permitted to unreasonably withhold or refuse consent to an assignment or to the sub-letting of an occupants agreement. 21). We recommend that a park owner should not be permitted to unreasonably withhold or refuse consent to an assignment or to the sub-letting of an occupation agreement. Abandoned Sites and Goods Page 18 of 23 Park and Village Service response to Residential Park
It is difficult to comment on Part 8 of the Bill in regard to abandoned sites and goods, without access to the regulations. We would, however, draw the Department's attention to the fact that it is far more difficult to ascertain if a site or goods have been abandoned by longterm casual tenants than it is in any other tenancy by the very fact that the person does not live permanently at the site. This is further complicated by the fact that as this Bill now stands it allows the owners to recover possession of the site without an order from the Tribunal or any court. Therefore, there is a need to provide greater safe-guards in regard to abandonment issues for long-term casual residents than those for other tenancies. All notice periods need to be extended. Time limits on applications, for example, Clauses 39 and 40 need to be extended, as do storage periods. The methods of notification need to be more stringent, for example, the Bill should ensure that all notices are sent to both the residential address as well as the site. 22). We recommend that the Bill provide greater safe-guards than those currently being provided under the Residential Parks Act and Regulations in regard to abandoned sites and goods. Clause 39 states that: 39 Goods abandoned by occupant after occupation agreement is terminated (1) If an occupation agreement is terminated and goods are left by the occupant on the site, the person who was the park owner under that Page 19 of 23 Park and Village Service response to Residential Park
agreement may: (a) apply to the Tribunal for an order under this section, or (b) sell or otherwise dispose of the goods in accordance with any provision made by the regulations, ( our emphasis on the Word Sell) Only goods which are perishable or completely without value should be disposed of without a Tribunal order, therefore it is inappropriate that a park owner should be allowed to sell goods without an order from the Tribunal. 23). We recommend that the word 'sell' be deleted from Clause 39(1)(b) We recommend that the Bill ensure that the provisions for dealing with dwellings which are deemed to be abandoned or uncollected goods be in line with the Residential Parks Amendment Regulation 2002. However, under these Regulations the dwelling has to be stored only for 30 days. In view of the nature of these tenancies it may be wise to extend the storage period. 24). We recommend that dwellings deemed to be abandoned or uncollected goods, be dealt with in line with the Residential Parks Amendment Regulation 2002 and that the storage period of 30 days be extended. As previously stated tenants who have their agreement terminated face great difficulties in removing their dwellings and can suffer Page 20 of 23 Park and Village Service response to Residential Park
considerable financial losses. Park owners under this Bill can seek orders in the Tribunal in regard to the removal, auction or disposal of dwellings which tenants do not remove when a tenancy has been terminated. We recommend that the same rights be extended to tenants as they should be allowed to have some control over the fate of their dwelling. 25). We recommend that the Bill provide for long-term casual tenants to seek orders from the Tribunal in regard to the removal, sale, auction or disposal of their relocatable homes or moveable dwellings. Coverage of Bill Those covered under Clause 5 of the Bill include residents who currently would be covered under the Residential Tenancies Act (RTA) despite 5(1)(c).The Bill under Schedule 2 Amendment 2.3 proposes to amend the RTA in order that the Act will not apply to any agreement which comes under the jurisdiction of this Bill. Thus significant numbers of current tenants and future tenants will have their tenancy rights drastically reduced. There are a number of examples where tenants could argue that they are currently covered by the RTA but fall into the criteria set down in Clause 5 of the Bill. For example, a tenant who spends every weekend at their dwelling on the park year after year can argue that the park is their weekend residence and that they are covered under the RTA, or Page 21 of 23 Park and Village Service response to Residential Park
there are people who live for several months on sites while their homes are being built or renovated, or seasonal or itinerate workers who live on parks for several months in their own dwellings. There are also some park residents who spend half the year in one park and the remainder of the year in another park. The Bill does not define what a casual long-term occupant is, nor does it require that the premises ordinarily be used for holiday purposes. Indeed, the term 'casual long-term occupant is a misnomer. A tenant who enters into an agreement for 12 months and installs their own dwelling on the site can be considered a casual occupant. It is a mistake to think that the majority of long-term casual tenants own small vans that can be quickly and easily rolled on and off site as this is not the case. The provisions and wording of the Bill is to regard this group of tenants as having a status less than that of a tenant. Longterm casual tenants have significant investments and interests in their tenancies. They require full and comprehensive legislative protection. As the Bill only covers long-term casual occupants who enter into a 12 month agreement it leaves a significant numbers of park tenants who are not covered by either the RPA or RTA without legislative protection. 26). We recommend that the safest and most effective way to provide protection to long-term tenants is to amend the existing tenancy legislation to extend appropriate provisions of the RPA to long-term casual residents. Page 22 of 23 Park and Village Service response to Residential Park
27). Should the Department not adopt the above recommendation (26), we recommend that the Department amend the Bill in a manner which will ensure that no current or future tenant, who would have been covered by the Residential Tenancies Act or any other legislation, does not suffer a loss of rights. Page 23 of 23 Park and Village Service response to Residential Park