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Merran Lawler[*]
The significant growth in mobile home living, particularly in rural coastal areas in Queensland throughout the last two decades, has created an emerging group of people with real need for, but limited access to, legal assistance. Residents in mobile home parks are increasingly finding themselves unable to assert their limited rights because of both geographical and social isolation. Having chosen a rural or semi-rural lifestyle without appreciating all the consequences, those residents find that they are often the victims of a double loss — the loss and decline of facilities and services within their park, and the loss and decline of facilities and services in local communities. Even where alternative facilities and services exist within reasonable geographical proximity, the limitations of age, infirmity, income and poor social supports make accessing those alternatives difficult. Indeed, a resident in a mobile home park 30 minutes drive from Brisbane may be as isolated from services and support as a resident living in a park 150 kilometres from a regional town.
The scenario illustrated in the boxed section (see next page) is played out countless times throughout Queensland and elsewhere in Australia each year. The stories of individual mobile home residents are variations on a theme — a promising and attractive lifestyle turned sour with little legal recourse for disempowered residents in isolated communities.
Queensland’s mobile home industry has enjoyed a huge boom since the early 1980s. It is conservatively estimated that more than 15,000 people now live in mobile home parks in coastal Queensland[1] and more than 85% of those residents are aged over 55 years. Intending residents are attracted for exactly the same reasons Mrs X moved into a mobile home park — independence, community, affordability, and investment.
While some parks exist in the Brisbane metropolitan area, many are located on the extreme suburban fringe or in rural locations along the coastline where access to a range of services is difficult, if not non-existent. Presumably, lower land prices and local government charges have much to do with a developer’s decision to establish a mobile home park outside the Brisbane metropolitan area. The existence of more lenient local government planning laws in some rural and regional shires throughout Queensland is an added incentive for prospective home park developers — shire councils may either lack or be prepared to waive requirements about completion of park infrastructure or facilities as a means of attracting development of home parks in the region.
Most new residents in parks have relocated from suburban environments, encouraged by notions of retirement in ‘quaint’ seaside towns. Few readily appreciate that they are also buying into rural lifestyles. The emphasis on ‘community lifestyle in a fully self- sufficient park’ as a key selling point tends to detract from any appreciation of the rural or isolated location of the park. Many parks are promoted as largely or entirely self- sufficient ‘towns’ with all the ‘attractions’ one might expect in the Brisbane suburbs — supermarkets at the door, banking facilities, social clubs, on-site bars/taverns, swimming pools, bowling greens and nine-hole golf courses. There is little in the advertising material to suggest that this ‘town within a town’ might cease to be by the simple withdrawal or deterioration of just a few of those attractions. There is nothing in the advertising material which would indicate that if the swimming pool is closed down the nearest alternative pool might be eight kilometres away or, if the banking facilities are withdrawn, an hour-long car trip may be necessary to access the closest ATM or bank branch.
The Mobile Homes Act (Qld) provides an unusual and piecemeal approach to regulation of the mobile homes industry. The Act was introduced in 1989 to stamp out some of the more extreme forms of abuse by ‘rogue’ park operators. Indeed, during the early 1980s it was not unusual to find park developers selling homes to unsuspecting residents based on three-year site rental agreements at affordable and attractive rental rates. Within 12 months the park owner would however on-sell the entire park to a new owner who refused to recognise the unregistered site rental agreements and would give residents firm ultimatums to pay massively increased site rental fees or move out of the park.
Some basic protections for park residents are now enshrined in the Act — the most notable of these relates to security of tenure.[2] Pursuant to the Act an agreement to position a mobile home on a site endures until it is terminated either by the resident or by an order of the Small Claims Tribunal.[3] In addition, the agreement is binding on all successors in title,[4] thus ensuring that new park owners cannot purchase established parks and ignore pre-existing site rental arrangements.
Yet, there are few other meaningful protections within the Act. Even the broadest possible interpretation of the legislation indicates that the protections are confined to the right of the home owner to sell or gift their home, the responsibility of the park owner to cover all expenses where it requires a resident to relocate to another site within the park,[5] and the right of either party to apply to the Small Claims Tribunal where dispute resolution is required.
What is significant is that notwithstanding that a site rental agreement relates to land, there is no requirement that that agreement be in writing. Indeed, most residents simply enter into verbal agreements with the park owner about the nature and conditions of their occupancy of the site. While the park owner is required to prepare and provide to the resident within three months a written statement which summarises the express terms of the agreement, the statement itself becomes the sole evidence that an agreement exists, and of the express terms on which it is based. Few new residents appreciate that if they are unhappy with the content of the written statement, that if it fails to accurately or adequately record their agreement, they must apply to the Small Claims Tribunal within three months to have it amended. If they do not do so, residents may at some future time find that the Small Claims Tribunal relies on the written statement as being a comprehensive statement as to the express terms of the agreement — in effect, that the written statement is the agreement.
Such is the case for Mrs X. Having moved into a park with at least a tacit understanding of the facilities available to her, she failed to ensure that these were recorded in the written statement she was eventually provided with by the park owner. When she eventually sought to protest about the withdrawal of her only link to a community outside the park (the shopping bus), the park owner pointed out that this was not an express term of her occupancy given that it did not appear in the written statement. The bowling green and the free lawnmowing were similarly, not detailed in the statement. While rental increases were included in the written statement, the complex algebraic calculation which Mrs X had understood simply meant that her rental would increase by an annual inflationary index (in accordance with her verbal agreement with the park owner when she moved in), actually provided for rental increases many times higher than annual CPI increases.
Significantly the Mobile Homes Act does not automatically require that a park owner maintain the facilities of the park nor assume any obligation to preserve the value of the park (and in turn the value of the residents’ investments). Pursuant to Schedule 2 of the Act, any provision or improvement of services which are not detailed in the written statement can only be implied by an order of the Small Claims Tribunal.
This creates, for many residents a particularly anomalous situation. Having moved into a park on the understanding that certain facilities would be provided (indeed, having been induced to live in the park based on the existence of those facilities), residents are then forced to apply to the Small Claims Tribunal for an order that the park owner provide those facilities. Unfortunately, this rarely occurs in practice primarily because of the strict time limits for application to the Tribunal. Where a facility or service is not mentioned in the written statement, a resident has three months from the date of receipt of the statement to apply to the Tribunal for an order that the facility or service be included in the statement. Yet, those facilities or services are generally available for several years after moving into the park, and it is only when they are withdrawn that a resident may feel sufficiently aggrieved to take some form of legal action.
The failure or refusal of the Small Claims Tribunal to look beyond the four corners of the written statement to inquire as to what was actually agreed (or indeed provided over a significant period of time) means that residents are only rarely successful in obtaining an order for the continuation or improvement of services and facilities. This is particularly true of something like lawn mowing and gardening of residents’ individual sites. Whereas free mowing and garden maintenance may have been an inducement to live in the park, the withdrawal of that service after a number of years is generally greeted by the Tribunal with a response which indicates that the resident has been very lucky to have such a kind and generous park owner who has done the resident a favour for which the resident should be grateful rather than expectant.
Claims about deteriorating roads, swimming pools and bowling greens or the loss of the park shop/supermarket are generally successfully countered by park owners as being the inevitable result of declining profits (notwithstanding massive rental increases). The Small Claims Tribunal rarely engages in any financial analysis of the situation to test the park owner’s claims or ascertain the true financial position of the park operations. Residents themselves are loathe to push the issue, fearing park owner’s threats that they will be forced to close the park and sell it as vacant land if compelled to provide services they allege they can no longer afford.
Operating from a position of relative strength and power, park owners have access to effective mechanisms to ‘silence’ those residents who may be prepared to speak out against the deterioration of services. In Queensland, residents are not automatically granted a ‘right of quiet enjoyment’ when they commence living in a park. Such right can only be granted on application by the resident to the Small Claims Tribunal. Yet few residents are prepared to make an application of this nature. The park owner may turn up on their doorstep at unacceptable hours or peer through the windows of their home or cut off services (such as water or electricity) without any warning on the pretence of ‘necessary maintenance’ — effective silencing tactics when levelled at an elderly resident who may have complained about the closure of the park kiosk.
An equally powerful weapon is the mobilisation of other residents within the park. Playing on the inevitability of community tensions which invariably exist in bringing together a diverse range of residents, park owners are often in a position to manipulate those tensions to marginalise ‘troublesome’ residents. In some instances, the participation of residents in silencing others is encouraged by favours — such as smaller rental increases or a less strict application of park rules. Sometimes that participation may be guaranteed by playing on the fears of residents — a troublesome resident may be marginalised by others in the park if they are encouraged to believe that the individual resident’s actions may adversely affect the value of their home. Such ‘power plays’ are not, however, confined to individuals. Residents may be appointed by the park owner to positions of power (such as ‘Management Advisory Boards’ which exist in some parks) or members of the Park Social Committee may be pitted against elected residents associations in order to silence a vocal group of dissatisfied home owners. In effect, the loss or deterioration of facilities within a park may be accompanied by a loss of ‘community spirit’.
For many, the decline of this ‘town’ within a park is exacerbated by the loss of key services within the local community. The closure of bank branches in local communities, for example leaves residents feeling vulnerable as park owners move towards direct debiting of rental and other payments from bank accounts, justified on the basis of a lack of banking facilities in the nearest town. Residents feel that they are losing control of the ability to manage their own finances — in one notable example a park owner direct debited a resident the entire amount of their bank account (a fortnightly pension payment) for due weekly site rental and future electricity charges. While the resident was able to successfully negotiate the return of the component for electricity charges, the process took several weeks, creating extreme financial hardship for the resident in the interim.
The lack of available legal services within the communities outside the parks is equally concerning. In the Wide Bay/Burnett region, for example, there is a complete lack of access to local legal aid or community legal centre services, yet a high concentration of mobile home parks in small rural townships. Where local legal aid preferred suppliers exist in the area they tend to already act for the park owner. Travelling to more distant legal aid or community legal services (a drive of at least three hours to Bundaberg or the Sunshine Coast) is simply not an option for many of the residents who lack private transport (or the confidence to drive significant distances) and who have no access to public transportation. Even where local private solicitors exist, there is real potential for conflict of interest, either because the solicitor acts for the park owner or for another resident.
Mrs X is justified in feeling that the law has turned its back on her and her fellow residents. For more than five years now there have been calls for reform of the Mobile Homes Act and half-hearted commitments by successive Queensland governments that ‘reform is just around the corner’.
In 2000, the Beattie government commenced a process to review and reform the Act but it can at best be described as reform to the lowest common denominator, dependent as it is on any change being negotiated between and agreed to by relevant stakeholders — an almost impossible task when stakeholders cannot even agree on the definition of a mobile home. This emphasis on ‘reform by consensus’ is perhaps indicative of the lobbying power of park owners who see the government generally as having little or no role to play in the regulation of a private industry. It is conceivable that where stakeholders cannot reach agreement on specific regulation (such as in relation to site rental increases), any new or amended legislation will be silent — leaving regulation entirely in the hands of the ‘market’. The recent election in Queensland and the appointment of a new Minister responsible for the legislation means that change is still a long way off.
The challenge of reforming mobile home regulation in Queensland lies in finding appropriate measures which go some way to addressing the issues of legal and social isolation which may be associated with home park residency. Access by a resident to an appropriate decision-making body to seek a reduction in rent commensurate with a reduction in park services may, for example, act as a powerful method of dealing with park operators who fail to adequately maintain facilities, as would provisions which allow a resident to seek orders that the park owner reinstate discontinued services. Greater requirements for up-front and written disclosure of park-related information (including disclosure about ‘hidden charges’ and services/facilities provided) as required under the New South Wales regime may avoid misunderstandings by intending residents or prevent the introduction of new and unexpected fees (or the withdrawal of services and facilities) during the period of residency.
While it is not possible for governments to legislate to ensure the maintenance of a ‘community spirit’ within a park, there could at a minimum be legislative recognition of the important role of elected park resident associations and the right of those associations to advocate for and on behalf of individuals and for all residents of a park in dealings with the park operator. Such provisions would go some way to limiting the ability of park owners to manipulate tensions between residents by giving disaffected residents a clear and accepted avenue to raise issues internally and with support.
Ultimately, the intending resident of a mobile home park has a responsibility to ensure that they are well informed about the type of park they are moving into and the nature of the surrounding community. In reviewing the Mobile Homes Act there is perhaps little that the Queensland government could do to assist Mrs X in terms of the loss of her local bank, her difficulty in locating a local solicitor who does not have a conflict of interest, or her public transport problems in getting to the local shops. There is, however, much that can be done to implement a regime that would ensure that she continues to receive the services and facilities which she was originally offered at an appropriate rental fee. There is much that can be done to ensure that the social isolation which might come from moving to a small rural area is not exacerbated by unexpected fees which make it impossible for family members to visit or stay. And there is certainly protection which can be legislatively provided to allow Mrs X and others like her to voice valid concerns and, if necessary, take legal action without fear of persecution by the park owner.
The Queensland government may have no ability to address the geographical isolation experienced by Mrs X but it certainly has the ability to look more broadly at solutions which might address the factors which contributed to her social and financial isolation. It undoubtedly has the responsibility to address those factors which created her legal isolation.
References
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[*] Merran Lawler is Director of Caxton Legal Centre, Brisbane.© 2001 Merran Lawler (text)© 2001 Stuart Roth (cartoon)
[1] Queensland Government, Office of Fair Trading, Reform of the Mobile Homes Act 1989, Discussion Paper, June 2000.
[2] Mobile Homes Act 1989 (Qld) (MHA), Schedule 1, Part 1, clause 1.
[3] Schedule 1, Part 1, clauses 3-4.
[4] MHA, s.6(1).
[5] Schedule 1, Part 1, clause 8.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2001/23.html