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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 52
As laid on the table and read a first time,
A Bill For
An
Act to regulate the relationship between residents in residential parks and
park owners; to make consequential amendments to the Residential Tenancies
Act 1995; and for other purposes.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Interpretation
4 Presumption of periodicity in case
of short fixed terms
5 Application of Act
Part 2—Park rules and
residents committees
6 Park rules
7 Residents committees
8 Amendment of park rules
9 Application to Tribunal if park
rules are considered unreasonable
Part 3—Formation of
residential park agreements
Division 1—Entering into
residential park agreements
10 Residential park agreement to be in
writing
11 Copies of written agreements
12 Agreements incorporate park rules
13 Cost of preparing written agreement
14 Information to be provided by park
owners to residents
15 False information from resident
16 Non-compliance not to affect validity
or enforceability
Division 2—Discrimination
against residents with children
17 Discrimination against residents with
children
Part 4—Mutual rights and
obligations of park owners and residents
Division 1—Rents and other
charges
18 Permissible consideration for
residential park agreement
19 Rent in advance
20 Method of payment of rent
21 Variation of rent
22 Excessive rent
23 Park owner's duty to keep proper
records of rent
24 Duty to give receipt for rent
25 Accrual and apportionment of rent
26 Abolition of distress for rent
Division 2—Bonds
27 Bond
28 Receipt of bond and transmission to
Commissioner
29 Repayment of bond
Division 3—Resident's entitlement
to possession and quiet enjoyment
30 Vacant possession etc
31 Quiet enjoyment
Division 4—Residential park
tenancy agreement—security of dwelling
32 Residential park tenancy agreement—security
of dwelling
Division 5—Access to
residential park
33 Access to residential park
Division 6—Park owner's
obligations in relation to condition of rented property and common areas
34 Cleanliness
35 Park owner's obligation to repair
Division 7—Resident's
obligations in relation to rented property and common areas
36 Resident's responsibility for
cleanliness and damage
37 Residential park tenancy agreement—alteration
of rented property
38 Residential park site agreement—alterations
on site
Division 8—Resident's conduct
on rented property
39 Resident's conduct
Division 9—Park owner's right
of entry
40 Residential park tenancy agreement—right
of entry
41 Residential park site agreement—right
of entry
42 Manner of exercise of right of entry
Division 10—Statutory and
other charges in respect of rented property
43 Statutory and other charges in respect
of rented property
Division 11—Resident's
vicarious liability
44 Vicarious liability
Division 12—Harsh or
unconscionable terms
45 Harsh or unconscionable terms
Division 13—Miscellaneous
46 Accelerated rent and liquidated
damages
47 Duty of mitigation
Part 5—Assignment of
residential park agreements
48 Assignment of residential park
agreement
Part 6—Residential park site
agreement—sale of dwelling on-site
49 Residential park site agreement—sale
of dwelling on-site
Part 7—Sub-tenancy agreements
50 Sub-tenancy agreements
Part 8—Termination of
residential park agreements
Division 1—Termination
generally
51 Termination of residential park
agreement
52 Agreement for fixed term continues if
not terminated
53 Termination of agreement for periodic
tenancy
54 Limitation of right to terminate
Division 2—Residential park
tenancy agreements—termination by parties
Subdivision 1—Termination by park owners
55 Termination for breach of agreement
56 Termination where successive breaches
of agreement
57 Termination where serious misconduct
by resident
58 Termination where periodic tenancy and
sale of rented property
59 Termination where periodic tenancy and
no specified ground of termination
60 Termination at end of fixed term
61 Termination where agreement frustrated
Subdivision 2—Termination by residents
62 Termination for breach of agreement
63 Termination where successive breaches
of agreement
64 Termination where periodic tenancy and
no specified ground of termination
65 Termination at end of fixed term
66 Termination where agreement frustrated
Division 3—Residential park
site agreements—termination by parties
Subdivision 1—Termination by park owners
67 Termination for breach of agreement
68 Termination where successive breaches
of agreement
69 Termination where serious misconduct
by resident
70 Termination where periodic tenancy and
no specified ground of termination
71 Termination at end of fixed term
72 Termination where agreement frustrated
Subdivision 2—Termination by residents
73 Termination for breach of agreement
74 Termination where successive breaches
of agreement
75 Termination where periodic tenancy and
no specified ground of termination
76 Termination at end of fixed term
77 Termination where agreement frustrated
Division 4—Termination by
Tribunal
78 Termination on application by park
owner
79 Termination on application by resident
80 Termination based on hardship
Division 5—Form of notices of
termination
81 Form of notice of termination
Division 6—Repossession of
rented property
82 Order for possession
83 Abandonment of rented property
84 Repossession of rented property
85 Forfeiture of head tenancy not to
automatically end agreement
Division 7—Enforcement of
orders for possession
86 Enforcement of orders for possession
Division 8—Retaliatory action
by park owner
87 Retaliatory action by park owner
Division 9—Resident to give
forwarding address
88 Resident to give forwarding address
Division 10—Abandoned property
89 Abandoned property
90 Offence to deal with abandoned
property in unauthorised way
91 Action to deal with abandoned property
other than personal documents
92 Action to deal with abandoned personal
documents
93 Action to deal with abandoned
dwellings or prescribed items
Part 9—Serious acts of
violence
94 Park owner may give person notice to
leave for serious act of violence
95 Suspension of agreement
96 Period of suspension
97 Entry to park prohibited during
suspension
98 Park owner may make urgent application
to Tribunal
99 Occupation of rented property pending
application or hearing
Part 10—Residential Tenancies
Tribunal
Division 1—Role of registrars
and magistrates
100 Registrars may exercise jurisdiction in
certain cases
101 Magistrates may exercise jurisdiction in
certain cases
Division 2—Proceedings before
Tribunal
102 Constitution of Tribunal
103 Duty to act expeditiously
Division 3—Tribunal's
jurisdiction
104 Jurisdiction of Tribunal
105 Application to Tribunal
Division 4—Mediation
106 Mediators
107 Referral of applications to mediation
108 Mediator to notify parties
109 Duties of mediators
110 Procedure
111 Representation of parties in mediation
112 Restriction on evidence
Division 5—Intervention by
Commissioner
113 Power to intervene
Division 6—Evidentiary and
procedural powers
114 Tribunal's powers to gather evidence
115 Procedural powers of Tribunal
116 General powers of Tribunal to cure
irregularities
Division 7—Judgments and
orders
117 General powers of Tribunal to resolve
disputes
118 Special powers to make orders and give
relief
119 Restraining orders
120 Conditional and alternative orders
121 Enforcement of orders
122 Application to vary or set aside order
123 Costs
Division 8—Obligation to give
reasons for decisions
124 Reasons for decisions
Division 9—Reservation of
questions of law and appeals
125 Reservation of questions of law
126 Appeals
Division 10—Representation in
proceedings before Tribunal
127 Representation in proceedings before
Tribunal
Division 11—Miscellaneous
128 Entry and inspection of property
129 Contempt of Tribunal
130 Punishment of contempt
131 Fees
132 Procedural rules
Part 11—Commissioner for
Consumer Affairs and administration of Act
133 Administration of Act
134 Ministerial control of administration
135 Commissioner's functions
136 Immunity from liability
137 Annual report
Part 12—Miscellaneous
138 Contract to avoid Act
139 Notice by park owner not waived by
acceptance of rent
140 Exemptions
141 Service
142 Regulations
Schedule 1—Transitional provisions
1 Application to existing residential
park agreements
2 Application to existing park rules
3 Exemption by Minister
4 Existing residential park agreements
need not comply with formal requirements
5 Existing bond to be paid to
Commissioner
Schedule 2—Amendment of Residential Tenancies Act 1995
1 Amendment of Residential
Tenancies Act 1995
The Parliament of
This Act may be cited as the Residential Parks Act 2006.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention
appears—
abandoned property—see Part 8 Division 10;
ADI
means an authorised deposit-taking institution within the meaning of the Banking
Act (Cwth);
bailiff of the Tribunal means a bailiff appointed under the Residential
Tenancies Act 1995;
bond means an amount a resident is required to pay under a provision
of a residential park agreement or collateral agreement as security for the
performance of obligations under the residential park agreement or this Act;
business day means a day other than a Saturday or Sunday or other public
holiday;
collateral agreement means—
(a) a
sub-tenancy managing agent agreement; or
(b) or
any agreement collateral to a residential park agreement;
Commissioner means the Commissioner for Consumer Affairs;
common area in a residential park means any facilities, building, road or
other area in the park provided for common use by residents of the park;
damage to property includes the loss of property;
deputy registrar means a deputy registrar of the Tribunal appointed under the Residential
Tenancies Act 1995;
dwelling means—
(a) a
structure, whether fixed or moveable, that is designed to be used and is
capable of being used for human habitation; or
(b) a
motor vehicle or trailer that is designed to be used and is capable of being
used for human habitation,
and includes a part of a dwelling but does not include a tent or a
structure of a kind prescribed by regulation;
forwarding address of a resident means the address of the place at which the
resident will next reside, or an address that will be a postal address of the
resident, after termination of the residential park agreement;
Fund means the Residential Tenancies Fund continued in existence under
the Residential Tenancies Act 1995;
housing improvement notice means a notice of intention to declare a
dwelling substandard, a notice declaring a dwelling to be substandard, or a
notice fixing the maximum rent payable for a dwelling, under Part 7 of the Housing
Improvement Act 1940;
lawyer means a person entitled to practise the profession of the law
under the Legal Practitioners Act 1981;
motor vehicle has the same meaning as in the Motor Vehicles Act 1959;
occupied site in a residential park means a site in the park occupied by a
resident;
park owner of a residential park means the owner or
operator of the residential park, and includes a prospective park owner and a
former park owner;
Note—
Part 7 relates to sub-tenancy agreements and contains a provision
that extends the meaning of the term park owner in relation to
sub-tenancy agreements.
park rules—see Part 2;
personal documents means official documents, photographs, correspondence or
other documents that it would be reasonable to expect a person might wish to
keep;
Presiding Member means the Presiding Member of the Tribunal appointed under the Residential
Tenancies Act 1995;
registrar means the registrar of the Tribunal appointed under the Residential
Tenancies Act 1995;
rent means an amount payable under a residential park agreement for
the right to occupy the rented property for a period under the agreement;
rented property means—
(a) in
relation to a residential park tenancy agreement—the site and dwelling in
respect of which the right of occupancy has been granted under the residential
park tenancy agreement; or
(b) in
relation to a residential park site agreement—the site in respect of which the
right of occupancy has been granted under the residential park site agreement,
and includes, in either case, so far as the context admits,
property (not forming part of the site or dwelling) that is provided by the
park owner, either under the agreement or independently of the agreement, for
use by the resident;
resident of a residential park means a person who is granted a right of
occupancy under a residential park tenancy agreement or a residential park site
agreement in respect of the residential park, or a person to whom the right
passes by assignment or operation of law, and includes a prospective resident
or a former resident;
residential park means an area of land used or intended to
be used in either or both of the following ways:
(a) as
a complex of sites of dwellings in respect of which rights of occupancy are
conferred under various residential park tenancy agreements, together with
common area bathroom, toilet and laundry facilities and other common areas;
(b) as
a complex of sites in respect of which rights of occupancy are conferred under
various residential park site agreements, together with common areas (which
may, but need not, include bathroom, toilet and laundry facilities);
residential park agreement means—
(a) a
residential park tenancy agreement; or
(b) a
residential park site agreement;
residential park dispute means—
(a) a
claim under a residential park agreement or a collateral agreement; or
(b) a
dispute between parties or former parties to a residential park agreement or a
collateral agreement about matters arising under the agreement or this Act; or
(c) any
matter that may be the subject of an application under this Act to the
Tribunal;
residential park site agreement means an agreement under which a park
owner grants another person, for valuable consideration, a right (which may,
but need not, be an exclusive right) to occupy a site in the residential park,
and to install or locate a dwelling on the site, for residential purposes;
residential park tenancy agreement means—
(a) an
agreement under which a park owner grants another person, for valuable
consideration, a right (which may, but need not, be an exclusive right) to
occupy a site in the residential park, and a dwelling made available on the
site by the park owner, for residential purposes; or
(b) an
agreement (a sub-tenancy agreement) under which a resident grants
another person, for valuable consideration, a right (which may, but need not,
be an exclusive right) to occupy the site in respect of which the resident has
a right of occupancy, and the dwelling on the site (whether a dwelling made
available by the park owner or installed or located on the site by the
resident), for residential purposes;
statutory charges means—
(a) rates
or other charges on land under the Local Government Act 1999; and
(b) rates
or other charges under the Waterworks Act 1932 or the Sewerage
Act 1929; and
(c) tax
under the Land Tax Act 1936; and
(d) levies
under the Emergency Services Funding Act 1998; and
(e) levies
under the Natural Resources Management Act 2004; and
(f) any
charges of a kind imposed under an Act and declared by regulation to be
statutory charges;
sub-tenancy agreement—see paragraph (b) of the definition of residential
park tenancy agreement;
sub-tenancy managing agent agreement—see Part 7;
trailer has the same meaning as in the Motor Vehicles Act 1959;
Tribunal means the Residential Tenancies Tribunal continued in existence
under the Residential Tenancies Act 1995.
(2) If
this Act provides for something to be done within a specified period from a
particular day, the period is to be taken not to include the particular day.
(3) If
this Act provides that action may be taken after the expiration of a specified
period of days, the period is to be taken to be a period of clear days.
(4) For
the purposes of this Act, a residential park agreement includes an agreement
granting a corporation a right in respect of a dwelling that is occupied, or
intended to be occupied, as a place of residence by a natural person.
4—Presumption of periodicity in case of short fixed terms
(1) If a residential park agreement is entered
into for a short fixed term, the agreement is taken to be an agreement for a
periodic tenancy with a period equivalent to the length of the fixed term
unless the park owner establishes that—
(a) the
resident genuinely wanted an agreement ending at the end of the short fixed
term and the term was fixed at the resident's request; or
(b) before
the residential park agreement was entered into—
(i) the
park owner gave the resident a notice containing a warning in the form approved
by the Commissioner; and
(ii) the
resident signed a statement in the form approved by the Commissioner
acknowledging that the resident did not expect to continue in occupation of the
rented property after the end of the term stated in the agreement.
(2) In this section—
short fixed term means a term of 90 days or less.
(1) This
Act does not apply to an agreement that confers on a person a right to occupy a
dwelling in a residential park unless the dwelling is or is to be the person's
principal place of residence.
(2) For
the purposes of this Act, evidence that the address of a residential park in
which a person has a right to occupy a dwelling is the person's address as
appearing on the electoral roll is to be taken, in the absence of proof to the
contrary, to be proof that the dwelling is the person's principal place of
residence.
(3) This
Act does not apply to an agreement that has been genuinely entered into for the
purpose of conferring on a person a right to occupy a dwelling in a residential
park for a holiday.
(4) For the purposes of this Act—
(a) an
agreement conferring a right to occupy a dwelling for a fixed term of 60 days
or longer; or
(b) an
arrangement consisting of 2 or more agreements that confer on the same person a
right to occupy a dwelling for consecutive fixed terms the sum of which is 60
days or longer,
is to be taken, in the absence of proof to the contrary, not to be
an agreement referred to in subsection (3).
(5) For
the purposes of this Act, evidence that a person has occupied a dwelling in a
residential park under an agreement for 60 days or longer is to be taken, in
the absence of proof to the contrary, to be proof that the agreement is not an
agreement referred to in subsection (3).
(6) For
the purposes of this Act, a term of an agreement to the effect that a right to
occupy a dwelling in a residential park is conferred by the agreement for a
holiday is not of itself sufficient to establish that the agreement is an
agreement referred to in subsection (3).
(7) This Act does not apply to—
(a) an
agreement giving a right of occupancy in—
(i) a
hotel or motel; or
(ii) an
educational institution, college, hospital or nursing home; or
(iii) club
premises; or
(iv) a
home for aged or disabled persons administered by an eligible organisation
under the Aged or Disabled Persons Care Act 1954 of the
Commonwealth; or
(v) a
retirement village within the meaning of the Retirement Villages
Act 1987; or
(vi) a
supported residential facility within the meaning of the Supported
Residential Facilities Act 1992; or
(vii) premises
prescribed by regulation, or premises of a class prescribed by regulation; or
(b) an
agreement under which a person boards or lodges with another; or
(c) an
agreement for the sale of land or a dwelling, or both, that confers a right to
occupy the land or dwelling, or both, on a party to the agreement; or
(d) a
mortgage; or
(e) an
agreement prescribed by regulation, or an agreement of a class prescribed by
regulation.
Part 2—Park rules and residents committees
(1) The
park owner of a residential park may make rules about the use, enjoyment, control
and management of the park.
(2) However, rules may be made only about any
of the following:
(a) the
use of common areas and the operation of common area facilities;
(b) the
making and abatement of noise;
(c) the
carrying on of sporting and other recreational activities;
(d) the
speed limits for motor vehicles;
(e) the
parking of motor vehicles;
(f) the
disposal of refuse;
(g) the
keeping of pets;
(h) maintenance
standards for dwellings installed or located in the residential park by
residents, as they affect the general amenity of the park;
(i) the
landscaping and maintenance of sites for dwellings;
(j) the
terms of any sub-tenancy managing agent agreements between the park owner and
residents;
(k) limiting
who may become residents to persons who are over the age of 50 years;
(l) other
things prescribed under a regulation.
(3) Park
rules relating to the terms of sub-tenancy managing agent agreements must
include any rules approved by the Commissioner as model rules for the purposes
of this subsection.
(4) A park rule will be void for the purposes
of this Act to the extent that it is inconsistent with—
(a) this
Act; or
(b) a
model rule approved under subsection (3); or
(c) any
other Act or law.
(5) The
Subordinate Legislation Act 1978 does not apply to park rules.
(1) Residents
from at least 5 different occupied sites in a residential park may form a
residents committee to represent the interests they have in common as residents
of the park.
(2) Only
1 residents committee may be formed under this section in relation to the same
residential park.
(3) A
resident of a residential park has a right to participate in any organisation
of residents of that residential park or of residential parks generally.
(4) A park owner or park owner's agent who
unreasonably interferes with a resident’s rights under this section is guilty
of an offence.
Maximum penalty: $1 250.
(1) A
park owner may make written amendments to park rules for a residential park.
(2) An
amendment does not have effect unless each resident of the residential park has
been given 14 days written notice of the amendment.
(3) If
a residents committee has been established for the residential park, the park
owner must consult, and consider the views of, the committee in relation to the
amendment of park rules.
(4) In this section—
amendment to park rules includes—
(a) a
variation of a park rule; or
(b) the
addition to the park rules of a new rule; or
(c) the
revocation of an existing park rule.
9—Application to Tribunal if park rules are considered unreasonable
(1) An
application may be made to the Tribunal to declare a park rule for a
residential park unreasonable if a joint application is made by residents from
a majority of the occupied sites in the park.
(2) An
application under this section is not affected if, after the date of the
application, the applicants cease to consist of residents from a majority of
the occupied sites in the park.
(3) When an application is made to the Tribunal
about the reasonableness of park rules, the Tribunal may make any of the
following orders:
(a) an
order declaring the rule or proposed rule to be reasonable or unreasonable;
(b) an
order changing the rule in a way it considers appropriate to make it
reasonable.
(4) A
park rule is void if the Tribunal makes an order that the rule or proposed rule
is unreasonable.
Part 3—Formation of residential park agreements
Division 1—Entering into residential park agreements
10—Residential park agreement to be in writing
(1) A
residential park agreement must be in writing.
(2) The
agreement must include the terms prescribed by this Act and any terms
prescribed by regulation as standard terms for residential park agreements.
(3) If,
for a standard term of a residential park agreement to be effective, the term
requires stated information to be included in it, the agreement is to be taken
to include the standard term only if the information is properly included.
(4) The agreement must—
(a) be
written in a clear and precise way; and
(b) precisely
identify the site; and
(c) state—
(i) the
park owner’s full name and address for service of documents; and
(ii) if
the park owner is a company—the address of the registered office of the
company; and
(iii) the
resident's full name and place of occupation; and
(d) be
signed by the parties.
(5) If a residential park agreement does not
comply with a requirement of this section, the park owner is guilty of an
offence.
Maximum penalty: $750.
Expiation fee: $105.
11—Copies of written agreements
If a park owner invites or requires a resident
to sign a written residential park agreement, or a document recording its
terms, the park owner must ensure that—
(a) the
resident receives a copy of the agreement or other document (for the resident
to keep), when the resident signs it; and
(b) if the agreement or other document has not
been signed by the park owner, a copy of the agreement or other document, as
executed by all parties, is delivered to the resident within 14 days after the
resident gives the agreement or other document back to the park owner to
complete its execution.
Maximum penalty: $750.
Expiation fee: $105.
12—Agreements incorporate park rules
The park rules for a residential park (as from time to time in
force under Part 2) are to be taken to constitute terms of every residential
park agreement relating to the park (but need not be set out in a written
residential park agreement).
13—Cost of preparing written agreement
The cost of preparing a written residential park agreement, or a
document recording its terms, must be borne by the park owner.
14—Information to be provided by park owners to residents
(1) A park owner must ensure that a resident is
given, before or at the time the park owner and resident enter into a
residential park agreement—
(a) a
copy of any park rules in force for the residential park; and
(b) a
copy of an information notice in the form approved by the Commissioner; and
(c) a
written notice stating—
(i) the
park owner’s full name and address for service of documents; and
(ii) if
the park owner is a company—the address of the registered office of the
company; and
(iii) contact details for a person who will, on
behalf of the park owner, carry out emergency repairs to the rented property or
common area facilities of the park.
Maximum penalty: $750.
Expiation fee: $105.
(2) A park owner must ensure that a resident is
given, before or at the time the resident commences occupation of the rented
property under a residential park agreement, manufacturers' manuals, or written
or oral instructions, about the operation of any appliances and devices
provided for the use of the resident as part of the rented property or the
common area facilities of the residential park.
Maximum penalty: $750.
Expiation fee: $105.
(3) If a person succeeds another as the park
owner, the new park owner must, within 14 days, notify the resident in writing
of—
(a) the
full name and address for service of documents of the new park owner; and
(b) if
the new park owner is a company—the address of the registered office of the
company; and
(c) contact details for a person who will, on
behalf of the new park owner, carry out emergency repairs to the rented
property or common area facilities of the park.
Maximum penalty: $750.
Expiation fee: $105.
(4) If a name or address or contact details of
which the park owner is required to notify the resident under this section
changes, the park owner must, within 14 days, notify the resident in
writing of the change.
Maximum penalty: $750.
Expiation fee: $105.
15—False information from resident
A resident must not give a park owner
false information about the resident's identity or place of occupation.
Maximum penalty: $750.
16—Non-compliance not to affect validity or enforceability
A residential park agreement is not rendered void or unenforceable
by non-compliance with a requirement of this Part.
Division 2—Discrimination against residents with children
17—Discrimination against residents with children
(1) A person must not refuse to enter into a
residential park agreement with another person on the ground that it is
intended that a child should live on the rented property.
Maximum penalty: $1 250.
(2) A person must not—
(a) instruct
a person not to enter into a residential park agreement; or
(b) state
an intention (by advertisement or in any other way) not to enter into a
residential park agreement,
on the ground that it is intended that a
child should live on the rented property.
Maximum penalty: $1 250.
(3) However, this section does not apply if—
(a) the
park owner, or an agent appointed by the park owner to manage the residential
park, resides in a dwelling to which the residential park agreement relates or
in a dwelling adjacent to that dwelling; or
(b) the
park rules for the residential park limit who may become residents in the park
to persons who are over the age of 50 years; or
(c) circumstances
prescribed by regulation apply.
Part 4—Mutual rights and obligations of park owners and
residents
Division 1—Rents and other charges
18—Permissible consideration for residential park agreement
(1) A person must not require or receive from a
resident a payment, other than rent or a bond (or both), under a residential
park agreement, or as a condition to entering into, renewing or extending a
residential park agreement.
Maximum penalty: $750.
(2) However,
the park owner may lawfully require and receive a payment of a class the park
owner is authorised to require under Division 10.
(1) A person must not demand or require another
person to pay more than 2 weeks’ rent under a residential park agreement
before the end of the first 2 weeks of the period of occupancy under the
agreement.
Maximum penalty: $750.
Expiation fee: $105.
(2) If rent has been paid under a residential
park agreement, a person must not require a further payment of rent until the
end of the last period for which rent has been paid.
Maximum penalty: $750.
Expiation fee: $105.
(3) A person must not require another person to
give a post-dated cheque or other post-dated negotiable instrument in payment
of rent under a residential park agreement.
Maximum penalty: $750.
Expiation fee: $105.
A park owner must not require that rent
payments under a residential park agreement be made to the park owner or the
park owner's agent at the rented property unless some reasonable alternative
method of payment that does not involve personal attendance at the rented
property has been offered by the park owner but not accepted by the resident.
Maximum penalty: $750.
Expiation fee: $105.
(1) The
park owner may increase the rent payable under a residential park agreement by
giving written notice to the resident specifying the date from which the
increase takes effect.
(2) However—
(a) the
right to increase the rent may be excluded or limited by the terms of the residential
park agreement; and
(b) if
the residential park agreement is for a fixed term, the agreement is taken to
exclude an increase in rent during the term unless the agreement specifically
allows for an increase in rent; and
(c) the
date fixed for an increase of rent must be at least 12 months after the date of
the agreement or, if there has been a previous increase of rent under this
section, the last increase and, subject to subsection (3), at least
60 days after the notice is given.
(3) If
the maximum rent for the rented property has been fixed by a housing
improvement notice, and the notice is revoked, the park owner may, by notice
given under this section within 60 days after revocation of the housing
improvement notice, increase the rent for the rented property from a date
falling at least 14 days after the notice is given.
(4) The
rent payable under a residential park agreement may be reduced by mutual
agreement between the park owner and the resident.
(5) A
reduction of rent may be made on a temporary basis so that the rent reverts to
the level that would have been otherwise applicable at the end of a specified
period.
(6) If
the rent payable under a residential park agreement is increased or reduced
under this section, the terms of the agreement are varied accordingly.
(7) This
section does not affect the operation of a provision of a residential park
agreement under which the rent payable under the agreement changes
automatically on a basis set out in the agreement.
(8) For
the purposes of this section, a series of residential park agreements between
the same parties and relating to the same site is to be treated as a single
residential park agreement unless at least 12 months have elapsed since rent
for the rented property was fixed or last increased.
(1) The
Tribunal may, on application made by a resident within 30 days after receipt of
a notice of rent increase, declare that the proposed increased rent is
excessive.
(2) In deciding whether the increased rent is
excessive, the Tribunal must have regard to—
(a) the
general level of rents for comparable rented properties in the same or similar
localities; and
(b) the
estimated capital value of the rented property at the date of the application;
and
(c) the
outgoings for which the park owner is liable under the agreement; and
(d) the
estimated cost of services provided by the park owner and the resident under
the agreement; and
(e) the
nature and value of furniture, equipment and other personal property provided
by the park owner for the resident's use; and
(f) the
state of repair and general condition of the rented property; and
(g) the
amenity and standard of the common areas of the residential park; and
(h) other
relevant matters.
(3) If the Tribunal finds, on an application
under this section, that the increased rent is excessive, the Tribunal may, by
order—
(a) fix
the rent payable for the rented property; and
(b) fix
a period (which cannot exceed 1 year) for which the order is to remain in
force.
(4) The
Tribunal may, on application by the park owner, vary or revoke an order under
this section if satisfied that it is just to do so.
(5) If, while an order remains in force under
this section, a park owner asks for or receives rent for the rented property to
which the order relates exceeding the amount fixed by the order, the park owner
is guilty of an offence.
Maximum penalty: $1 250.
(6) In this section—
rent includes a payment that the resident is required by the park
owner to make under Division 10.
23—Park owner's duty to keep proper records of rent
(1) A park owner under a residential park
agreement must ensure that a proper record is kept of rent received under the
agreement.
Maximum penalty: $750.
Expiation fee: $105.
(2) A person must not—
(a) make
a false entry in a record of the rent received under a residential park
agreement; or
(b) falsify the record in any other way.
Maximum penalty: $1 250.
24—Duty to give receipt for rent
(1) A person who receives rent under a
residential park agreement must, within 48 hours after receiving the rent,
give the person paying the rent a receipt stating—
(a) the
date on which the rent was received; and
(b) the
name of the person paying the rent; and
(c) the
amount paid; and
(d) the
period of occupancy to which the payment relates; and
(e) the address of the rented property to which
the payment relates.
Maximum penalty: $750.
Expiation fee: $105.
(2) However,
if the resident pays the rent into an account kept by the park owner or the
park owner's agent at an ADI, and the park owner, or the park owner's agent
keeps a written record containing the information required by
subsection (1), a receipt need not be given.
25—Accrual and apportionment of rent
(1) The
rent payable under a residential park agreement accrues from day to day.
(2) If
rent is paid in advance, and the residential park agreement ends before the end
of the period for which rent has been paid, the park owner must refund the
appropriate proportion of the amount paid to the resident or apply it towards
other liabilities of the resident to the park owner.
26—Abolition of distress for rent
A park owner is not entitled to distrain goods of a resident for
non-payment of the rent payable under a residential park agreement.
(1) A person must not—
(a) require
more than one bond for the same residential park agreement; or
(b) require the payment of a bond exceeding 4
weeks rent under the agreement.
Maximum penalty: $1 250.
(2) The
4 weeks rent limit on the amount of the bond is calculated by reference to the
rent, or if the rent varies, the lowest rent, payable during the first 6 months
of the period of occupancy under the agreement (expressed as a weekly rent).
28—Receipt of bond and transmission to Commissioner
(1) A person must, within 48 hours after
receiving an amount paid by way of a bond, give the person who pays a receipt
stating the date payment was received, the name of the person from whom the
payment was received, the amount paid, and the address of the rented property
to which the payment relates.
Maximum penalty: $1 250.
Expiation fee: $160.
(2) A person must, within 7 days after
receiving an amount paid by way of a bond, pay the amount to the Commissioner
and at the same time lodge with the Commissioner a notice in the form approved
by the Commissioner.
Maximum penalty: $1 250.
Expiation fee: $160.
(1) An application may be made to the
Commissioner for—
(a) payment
of the whole amount of the bond either to the park owner or the resident; or
(b) payment
of a specified amount of the bond to the park owner and the balance to the
resident.
(2) The application—
(a) must
be in a form approved by the Commissioner; and
(b) may
be made jointly by the park owner and the resident or by either the park owner
or the resident.
(3) If
the application is undisputed, the Commissioner must pay out from the Fund the
amount of the bond as specified in the application.
(4) If
an application is liable to be disputed, the Commissioner must give the
respondent written notice of the application (in a form the Commissioner
considers appropriate) and inform the respondent that, if the respondent wants
to dispute the application, a written notice of dispute, in a form approved by
the Commissioner, must be lodged with the Commissioner within 10 days after the
date the notice is given to the respondent.
(5) If
the respondent does not give the Commissioner written notice of dispute, in a
form approved by the Commissioner, within 10 days after the date the
Commissioner's notice is given to the respondent, the Commissioner may pay out
from the Fund the amount of the bond as proposed in the application.
(6) If
the Commissioner receives a written notice of dispute before the amount of the
bond is paid out under subsection (5), the Commissioner must refer the
dispute to the Tribunal for determination.
(7) For the purposes of this section—
(a) an
application is undisputed if it is a joint application by the park owner and
the resident, or an application by the park owner that the whole of the amount
of the bond be paid to the resident, or an application by the resident that the
whole of the amount of the bond be paid to the park owner;
(b) an
application that does not fall into any of those categories is liable to be
disputed;
(c) if
the application was made by the park owner, the resident is the respondent;
(d) if
the application was made by the resident, the park owner is the respondent.
Division 3—Resident's entitlement to possession and quiet
enjoyment
(1) It
is a term of a residential park agreement that the resident is entitled to
vacant possession of the rented property (except for a part of the rented
property in respect of which a right of exclusive occupation is not given by
the agreement) from the day the right of occupancy under the agreement begins.
(2) It
is a term of a residential park agreement that there is no legal impediment of
which the park owner has, or ought to have knowledge, to the resident's
occupation of the rented property as a place of residence for the period of
operation of the agreement.
(1) It is a term of a residential park
agreement that—
(a) the
resident is entitled to quiet enjoyment of the rented property without
interruption by the park owner or a person claiming under the park owner or
with superior title to the park owner's title; and
(b) the
park owner must not cause or permit an interference with the reasonable peace,
comfort or privacy of the resident in the resident's use of the rented property
or with the reasonable use or enjoyment by the resident of common areas of the
residential park; and
(c) the
park owner must take reasonable steps to prevent other residents of the
residential park from causing or permitting interference with the reasonable
peace, comfort or privacy of the resident in the resident's use of the rented
property or with the reasonable use or enjoyment by the resident of common
areas of the residential park.
(2) If the park owner contravenes the term of
the agreement arising under subsection (1) in circumstances that amount to
harassment of the resident, the park owner is guilty of an offence.
Maximum penalty: $2 500.
(3) The
liability to be prosecuted for the offence is in addition to civil liability
for breach of the agreement.
Division 4—Residential park tenancy agreement—security of
dwelling
32—Residential park tenancy agreement—security of dwelling
(1) It is a term of a residential park tenancy
agreement that—
(a) the
park owner must take reasonable steps to provide and maintain the locks and
other devices that are necessary to ensure the dwelling comprised in the rented
property is reasonably secure; and
(b) the
park owner or the resident must not alter or remove a lock or other security
device or add a lock or other security device without the consent of the other.
(2) A park owner, park owner's agent or
resident who, without reasonable excuse, contravenes the term of the agreement
arising under subsection (1)(b) is guilty of an offence.
Maximum penalty: $1 250.
(3) The
liability to be prosecuted for the offence is in addition to civil liability
for breach of the agreement.
Division 5—Access to residential park
(1) It is a term of a residential park
agreement that the park owner—
(a) must
provide 24 hours vehicular access for the resident to the rented property; and
(b) must
provide 24 hours access for the resident to the residential park and any common
area bathroom and toilet facilities of the park; and
(c) must
provide access during all reasonable hours for the resident to any other common
area facilities of the park.
(2) It is a term of a residential park agreement
that, if the park owner has installed a lock or other security device (such as
boom gates) to restrict entry to the residential park, or some part of the
residential park to which it is agreed that the resident may have access, the
park owner—
(a) must
give a copy of the key or any other opening device or information required to
open the security device to the resident—
(i) in
the case of a security device in place at the commencement of the agreement—at
or before the commencement of the agreement; and
(ii) in
the case of a security device installed or changed during the term of the
agreement—before the security device is locked or activated; and
(b) must
maintain the security device in working order.
(3) A park owner or park owner's agent who,
without reasonable excuse, excludes or restricts, or attempts to exclude or
restrict, access by a resident to the residential park or a part of the park in
contravention of a term of a residential park agreement arising under this
section is guilty of an offence.
Maximum penalty: $1 250.
(4) The
liability to be prosecuted for the offence is in addition to civil liability
for breach of the agreement.
Division 6—Park owner's obligations in relation to
condition of rented property and common areas
It is a term of a residential park
agreement that the park owner—
(a) must
ensure that the rented property is in a reasonable state of cleanliness when
the resident enters into occupation of the rented property; and
(b) must
keep the common areas of the residential park and any garden or other areas in
the park in a reasonable state of cleanliness; and
(c) must
arrange for the regular collection of the garbage of residents and any other
garbage in the residential park.
35—Park owner's obligation to repair
(1) It is a term of a residential park
agreement that the park owner—
(a) must
ensure that the rented property and the common areas of the residential park
are in a reasonable state of repair when the resident enters into occupation of
the rented property and must keep them in a reasonable state of repair having
regard to their age, character and prospective life; and
(b) must
comply with statutory requirements affecting the rented property and the common
areas of the residential park; and
(c) must,
if required to carry out repairs to common area bathroom, toilet or laundry
facilities, minimise inconvenience or disruption to the resident and, if
necessary, provide temporary substitute facilities.
(2) The
obligation to repair applies even though the resident had notice of the state
of disrepair before entering into occupation.
(3) However—
(a) the
park owner will not be regarded as being in breach of the obligation to repair
unless—
(i) the
park owner has notice of the defect requiring repair; and
(ii) the
park owner fails to act with reasonable diligence to have the defect repaired;
and
(b) if
the rented property is subject to a housing improvement notice fixing the
maximum rent for the rented property, the park owner's obligation under
subsection (1) to repair the rented property does not apply.
(4) If—
(a) rented
property is in a state of disrepair that does not arise from a contravention of
the residential park agreement by the resident; and
(b) the
state of disrepair is, unless remedied, likely to result in personal injury or
damage to property or undue inconvenience; and
(c) the
resident notifies the park owner of the state of disrepair or makes a
reasonable attempt to do so; and
(d) the
resident incurs costs in having the state of disrepair remedied; and
(e) the
repairs are carried out by a person who is licensed to carry out the necessary
work and the person provides the park owner with a report on the work carried
out and the apparent cause of the state of disrepair,
the resident is entitled to recover from the park owner the
reasonable costs of having the repairs carried out.
(5) However,
the resident is not entitled to recover the cost of repairing the rented
property if the rented property is subject to a housing improvement notice
fixing the maximum rent payable for the rented property.
(6) The
obligation to repair includes an obligation to maintain all trees in the
residential park in a condition that does not create any unreasonable risk to
the safety of residents or their property.
Division 7—Resident's obligations in relation to rented
property and common areas
36—Resident's responsibility for cleanliness and damage
(1) It is a term of a residential park
agreement that the resident—
(a) must
keep the rented property in a reasonable state of cleanliness; and
(b) must
notify the park owner of damage to the rented property; and
(c) must
notify the park owner of damage to any common area of the residential park
caused by the resident or a person permitted on the rented property or the park
by the resident; and
(d) must
not intentionally or negligently cause or permit damage to the rented property
or any common area of the residential park.
(2) A resident who intentionally causes serious
damage to the rented property or any common area of the residential park is
guilty of an offence.
Maximum penalty: $2 500.
(3) The
liability to be prosecuted for the offence is in addition to civil liability
for a breach of the agreement.
(4) It
is a term of a residential park agreement that, at the end of the agreement,
the resident must give the rented property back to the park owner in reasonable
condition and in a reasonable state of cleanliness.
(5) In
deciding whether property is in reasonable condition, its condition when the
resident entered into occupation of it, and the probable effect of reasonable
wear and tear since that time, must be taken into account.
37—Residential park tenancy agreement—alteration of rented property
It is a term of a residential park tenancy
agreement that—
(a) a
resident must not, without the park owner's written consent—
(i) affix
a fixture, or make an alteration or addition, to the rented property; or
(ii) remove
a fixture affixed to the rented property by the resident; and
(b) if
a resident causes damage to the rented property by removing a fixture, the
resident must notify the park owner and, at the option of the park owner,
repair the damage or compensate the park owner for the reasonable cost of
repairing the damage; and
(c) the
park owner—
(i) must
not unreasonably withhold consent; and
(ii) must
not make a charge for giving consent or considering an application for consent
exceeding the park owner's reasonable expenses; and
(d) if
the park owner withholds consent to the removal of a fixture affixed to the
rented property by the resident with the park owner's written consent, the park
owner must, at the request of the resident, compensate the resident without
delay for the reasonable value of the fixture.
38—Residential park site agreement—alterations on site
It is a term of a residential park site
agreement that—
(a) a
resident must not, without the park owner's written consent, make an alteration
or addition to the exterior of the dwelling installed or located on the site,
or add any structure to the site; and
(b) the
park owner—
(i) must
not unreasonably withhold consent; and
(ii) must
not make a charge for giving consent or considering an application for consent
exceeding the park owner's reasonable expenses.
Division 8—Resident's conduct on rented property
It is a term of a residential park
agreement that the resident—
(a) must
not use the rented property or common areas of the residential park, or cause
or permit the rented property or common areas of the residential park to be
used, for an illegal purpose; and
(b) must
not cause or permit a nuisance; and
(c) must
not cause or permit an interference—
(i) with
the reasonable peace, comfort or privacy of another resident in the other
resident's use of rented property or with the reasonable use or enjoyment by
another resident of common areas of the residential park; or
(ii) with
the reasonable peace, comfort or privacy of a person residing in the immediate
vicinity of the residential park.
Division 9—Park owner's right of entry
40—Residential park tenancy agreement—right of entry
It is a term of a residential park tenancy
agreement that the park owner may enter the rented property if (and only if)—
(a) the
entry is made in an emergency (including in order to carry out urgent repairs
or avert danger to life or valuable property); or
(b) the
entry is made at a time previously arranged with the resident (but not more
frequently than once every week) for the purpose of collecting the rent; or
(c) in
a case where the resident is required under Division 10 to pay charges based on
the level of the water, electricity or gas consumption at the rented property,
for the purpose of reading the relevant meter; or
(d) the
entry is made at a time previously arranged with the resident (but not more
frequently than once every 3 months) for the purpose of inspecting the rented
property; or
(e) the
entry is made for the purpose of carrying out necessary repairs or maintenance
at a reasonable time of which the resident has been given at least 48 hours
written notice; or
(f) the
entry is made for the purpose of showing the rented property to prospective
residents, at a reasonable time and on a reasonable number of occasions during
the period of 14 days preceding the termination of the agreement, after giving
reasonable notice to the resident; or
(g) the
entry is made for the purpose of showing the rented property to prospective
purchasers, at a reasonable time and on a reasonable number of occasions, after
giving the resident reasonable notice; or
(h) the
entry is made for a purpose not referred to in a preceding paragraph and the
park owner gives the resident written notice stating the purpose and specifying
the date and time of the proposed entry not less than 7 and not more than 14
days before entering the rented property; or
(i) the
entry is made with the consent of the resident given at, or immediately before,
the time of entry; or
(j) the
park owner believes on reasonable grounds that the resident has abandoned the
rented property.
41—Residential park site agreement—right of entry
It is a term of a residential park site
agreement that the park owner may enter the rented property if (and only if)—
(a) the
entry is made in order to avert danger to life or valuable property; or
(b) in
a case where the resident is required under Division 10 to pay charges based on
the level of the water, electricity or gas consumption at the rented property,
for the purpose of reading the relevant meter; or
(c) the
entry is made, at a reasonable time and on a reasonable number of occasions,
for the purpose of ensuring compliance by the park owner with statutory
requirements relating to separation distances between structures on
neighbouring sites and removal of hazardous materials; or
(d) the
entry is made, at a reasonable time and on a reasonable number of occasions,
for the purpose of lawn or grounds maintenance in a case where the resident
agreed to such an arrangement when entering into the residential park site
agreement; or
(e) the
entry is made with the consent of the resident given at, or immediately before,
the time of entry; or
(f) the
entry is made in accordance with the regulations.
42—Manner of exercise of right of entry
It is a term of a residential park
agreement that a park owner exercising a right of entry under this Division—
(a) must
not act in an unreasonably intrusive manner on the rented property; and
(b) without
limiting the effect of paragraph (a), must not, without the resident's
consent—
(i) enter
a part of the rented property to which entry is not reasonably required for the
purpose for which the right of entry is being exercised; or
(ii) remain
on the rented property longer than is reasonably necessary for the purpose for
which the right of entry is being exercised.
Division 10—Statutory and other charges in
respect of rented property
43—Statutory and other charges in respect of rented property
(1) Without
limiting the effect of section 18, it is a term of a residential park
agreement that the park owner must bear all statutory charges imposed in
respect of the rented property.
(2) However, the park owner may, by a term of
the residential park agreement—
(a) if
water consumption at the rented property is separately metered, require the
resident to pay charges payable under the Waterworks Act 1932 based
on the level of the water consumption at the rented property; and
(b) subject
to the Electricity Act 1996, if electricity consumption at the
rented property is separately metered, require the resident to pay charges
based on the level of the electricity consumption at the rented property; and
(c) subject
to the Gas Act 1997, if gas consumption at the rented property is
separately metered, require the resident to pay charges based on the level of
the gas consumption at the rented property; and
(d) if
bottled gas is supplied at the rented property, require the resident to pay
charges based on the level of the bottled gas consumption at the rented
property; and
(e) require
the resident to make any other payments of a kind prescribed by the
regulations.
(3) The
regulations may provide that a resident need not make a payment of a kind
referred to in subsection (2) unless the park owner provides to the
resident, at the request of the resident, specified information (which may
include accounts and receipts, or copies of accounts and receipts) relevant to
the payment or the goods or services in respect of which the payment is sought.
Division 11—Resident's vicarious liability
It is a term of a residential park agreement that, if a person is
on the rented property at the invitation or with the consent of the resident,
the resident is vicariously responsible for an act or omission by the person
that would, if it had been an act or omission of the resident, have constituted
a breach of the agreement.
Division 12—Harsh or unconscionable terms
45—Harsh or unconscionable terms
(1) The
Tribunal may, on application by a resident, make an order rescinding or varying
a term of a residential park agreement if satisfied that the term is harsh or
unconscionable.
(2) On
making an order under subsection (1), the Tribunal may make consequential
changes to the residential park agreement or another related document.
46—Accelerated rent and liquidated damages
(1) If a residential park agreement provides
that, on breach by the resident of a term about rent or other term of the
agreement, the resident is liable to pay—
(a) all
or any part of the rent remaining payable under the agreement; or
(b) rent
of an increased amount; or
(c) an
amount by way of penalty; or
(d) an
amount by way of liquidated damages,
the provision is void.
(2) If
a residential park agreement provides that, on early or punctual payment of
rent, the rent will or may be decreased or the resident will or may be granted
or paid a rebate, refund or other benefit, the resident is entitled to the
reduction, rebate, refund or other benefit in any event.
(3) If a residential park agreement contains a
provision to which this section applies, the park owner is guilty of an
offence.
Maximum penalty: $1 250.
The rules of the law of contract about mitigation of loss or
damage on breach of a contract apply to a breach of a residential park
agreement.
Part 5—Assignment of residential park agreements
48—Assignment of residential park agreement
(1) A
resident under a residential park agreement may assign the resident's interest
in the agreement to another person by written or oral agreement with the other
person.
(2) However, it is a term of a residential park
agreement that—
(a) the
resident must not assign the resident's interest without the written consent of
the park owner; but
(b) the
park owner—
(i) must
not unreasonably withhold consent; and
(ii) must
not make a charge for giving consent or considering an application for consent
exceeding the park owner's reasonable expenses.
(3) The park owner is to be taken to have
consented to an assignment if—
(a) the
resident—
(i) has
given the park owner written notice of the assignment setting out the full name
and contact details of the proposed assignee; and
(ii) has
requested the park owner to consent to the assignment by signing and returning
the notice to the resident; and
(b) the
park owner has not consented to the assignment within 7 days after receipt of
the notice of the assignment.
(4) The
absence of consent does not invalidate an assignment.
(5) However,
if the park owner's consent to an assignment is not obtained, the resident who
assigns the interest remains liable to the park owner under the residential
park agreement (together with the new resident, who is jointly and severally
liable) unless the park owner has unreasonably withheld consent.
(6) This
continuing liability of the assignor does not apply, in the case of a
residential park agreement for a periodic tenancy, to a liability accruing more
than 21 days after the park owner became aware or ought reasonably to have
become aware of the assignment (whichever is the earlier).
(7) If
the park owner's consent to an assignment is not obtained and the park owner
had, before the assignment, served a notice of termination on the assignor, the
park owner may enforce the notice against the assignee.
(8) The
park owner may terminate a residential park agreement on the ground that the
resident has assigned the resident's interest without the park owner's consent,
but only if the park owner has not unreasonably withheld consent and serves the
notice of termination within 21 days after the time the park owner became aware
or ought reasonably to have become aware of the assignment (whichever is the
earlier).
(9) The
effect of an assignment under this section is that the assignee is substituted
for the assignor as resident under the residential park agreement (but the
assignor remains responsible for liabilities that accrued before the date of
the assignment).
(10) An
assignee is liable to indemnify the assignor for liabilities incurred by the
assignor to the park owner because of a breach of the residential park
agreement by the assignee.
(11) If
the resident assigns the resident's interest, an amount paid by the resident
and held by way of a bond will (unless the parties agree to the contrary)
continue to be held as a bond for the proper performance by the assignee of
obligations under the residential park agreement.
Part 6—Residential park site agreement—sale of dwelling
on-site
49—Residential park site agreement—sale of dwelling on-site
(1) It is a term of a residential park site
agreement that the resident—
(a) is
entitled to sell the dwelling installed or located on the site to which the
agreement relates while the dwelling is in place on the site; and
(b) must
inform the park owner of the resident’s intention to offer the dwelling for
sale before displaying a "for sale" sign in or on the dwelling or
site.
(2) A park owner or park owner's agent who—
(a) hinders,
or attempts to hinder, the sale of a dwelling by a resident in accordance with
the term of a residential park site agreement arising under
subsection (1)(a); or
(b) prevents,
or attempts to prevent, the display by a resident of a "for sale"
sign in or on a dwelling or site for the purpose of selling the dwelling in
accordance with the term of a residential park site agreement arising under
that subsection,
is guilty of an offence.
Maximum penalty: $2 500.
(3) Without
limiting subsection (2), a park owner or park owner's agent is to be taken
to hinder the sale of a dwelling if the park owner or park owner's agent stops
potential buyers from inspecting the dwelling.
(4) A
park owner does not contravene subsection (2) in relation to the proposed
sale of a dwelling installed or located on a site if the park owner has
reasonably refused to consent to a proposed assignment of the resident's
interest in the residential park site agreement relating to the site.
(1) A
resident under a residential park agreement may enter into a sub-tenancy agreement
with another person in respect of the site to which the residential park
agreement relates and the dwelling on the site (whether a dwelling made
available by the park owner or installed or located on the site by the
resident).
(2) A
sub-tenancy agreement may be in writing or oral.
(3) However, it is a term of a residential park
agreement that the resident must not enter into a sub-tenancy agreement unless—
(a) the
park owner has park rules in force for the residential park defining the terms
(as to payment or any other matter) on which the park owner will act as
managing agent for residents in relation to sub-tenancy agreements and the
services to be provided by the park owner to residents as managing agent in
relation to sub-tenancy agreements; and
(b) the
park owner has consented to the making of the sub-tenancy agreement; and
(c) the
resident has entered into an agreement (a sub-tenancy managing agent
agreement) with the park owner under which the park owner will act as
managing agent for the resident in relation to the sub-tenancy agreement in
accordance with the park rules.
(4) If a resident enters into—
(a) a
sub-tenancy agreement; and
(b) a
sub-tenancy managing agent agreement with the park owner in relation to the
sub-tenancy agreement,
a reference in this Act to a park owner is, in relation to the
sub-tenancy agreement, to be taken to include a reference to—
(c) the
park owner acting as managing agent for the resident in relation to the
sub-tenancy agreement; and
(d) the
resident.
Part 8—Termination of residential park
agreements
Division 1—Termination generally
51—Termination of residential park agreement
A residential park agreement terminates if—
(a) the
park owner or the resident terminates the agreement by notice of termination
given to the other (as required under this Act); or
(b) the
Tribunal terminates the agreement; or
(c) a
person having title superior to the park owner's title becomes entitled to
possession of the rented property under the order of the Tribunal or a court;
or
(d) a
mortgagee takes possession of the rented property under a mortgage; or
(e) the
resident abandons the rented property; or
(f) the
resident dies without leaving dependants in occupation of the rented property;
or
(g) the
resident gives up possession of the rented property with the park owner's consent;
or
(h) the
interest of the resident merges with another estate or interest in the land; or
(i) disclaimer
occurs.
52—Agreement for fixed term continues if not terminated
If a residential park agreement for a
fixed term has not terminated at or before the end of the fixed term, the
agreement continues—
(a) as
a residential park agreement for a periodic tenancy with a tenancy period
equivalent to the interval between rental payment times under the agreement;
and
(b) with
terms of agreement that in other respects are the same as those applying under
the agreement immediately before the end of the fixed term.
53—Termination of agreement for periodic tenancy
A notice terminating a residential park
agreement for a periodic tenancy under this Part is not ineffectual because—
(a) the
period of notice is less than would, apart from this Act, have been required at
law; or
(b) the
day on which the agreement is to end is not the last day of a period of the
tenancy.
54—Limitation of right to terminate
(1) If—
(a) rented
property is subject to a housing improvement notice; or
(b) an
order is in force under section 22 in respect of rented property or proceedings
for such an order have been commenced,
the park owner may only terminate the residential park agreement
by notice of termination under this Part if the notice is given on a specified
ground, and the Tribunal authorises the notice of termination.
(2) This
section does not apply to a notice of termination given by the park owner to
terminate a residential park agreement for a fixed term at the end of the fixed
term.
(3) The
Tribunal may authorise a notice of termination under this section if satisfied
of the genuineness of the proposed ground on which the notice is to be given.
Division 2—Residential park tenancy agreements—termination
by parties
Subdivision 1—Termination by park owners
55—Termination for breach of agreement
(1) If the resident breaches a residential park
tenancy agreement, the park owner may give the resident a written notice in the
form approved by the Commissioner—
(a) specifying
the breach; and
(b) informing
the resident that if the breach is not remedied within a specified period
(which must be a period of at least 14 days) from the date the notice is given,
then—
(i) the
agreement is terminated by force of the notice; and
(ii) the
resident must give up vacant possession of the rented property before the end
of the next day.
(2) If notice is given under this section on
the ground of a failure to pay rent—
(a) the
notice is ineffectual unless the rent (or any part of the rent) has remained
unpaid in breach of the agreement for not less than 7 days before the notice
was given; and
(b) the
notice is not rendered ineffectual by failure by the park owner to make a prior
formal demand for payment of the rent.
(3) If
notice is given under this section in respect of a residential park tenancy
agreement for a fixed term, the notice is not ineffectual because the day
specified as the day on which the resident is to give up vacant possession of
the rented property is earlier than the last day of that term.
(4) The resident may at any time after
receiving a notice under this section and before giving vacant possession to
the park owner, apply to the Tribunal for an order—
(a) declaring
that the resident is not in breach of the residential park agreement, or has
remedied the breach of the agreement, and that the agreement is not liable to
be terminated under this section; or
(b) reinstating
the agreement.
(5) If
the Tribunal is satisfied that a residential park tenancy agreement has been
validly terminated under this section, but that it is just and equitable to
reinstate the agreement (or would be just and equitable to reinstate the
agreement if the conditions of the order were complied with), the Tribunal may
make an order reinstating the agreement.
(6) An
order reinstating the agreement under this section may be made on conditions
that the Tribunal considers appropriate.
(7) On
an application for an order reinstating the agreement, the Tribunal may make
alternative orders providing for reinstatement of the agreement if specified
conditions are complied with but, if not, ordering the resident to give up
vacant possession of the rented property to the park owner.
56—Termination where successive breaches of agreement
(1) A park owner may, by notice of termination
given to the resident, terminate a residential park tenancy agreement on the
ground that the resident—
(a) has
breached a term of the agreement; and
(b) had
committed breaches of the same term of the agreement on at least 2 previous
occasions and been given separate notice under section 55 in respect of
each of those breaches.
(2) Subject
to subsection (3), the period of notice given under this section must be
at least 14 days.
(3) If notice is given under this section on
the ground of a failure to pay rent—
(a) the
notice is ineffectual unless the rent (or any part of the rent) has remained
unpaid in breach of the agreement for not less than 7 days before the notice
was given; and
(b) the
notice is not rendered ineffectual by failure by the park owner to make a prior
formal demand for payment of the rent; and
(c) the
period of notice given must be at least 7 days.
57—Termination where serious misconduct by resident
(1) A park owner may, by notice of termination
given to the resident, terminate a residential park tenancy agreement on the
ground that the resident, or a person permitted on the rented property with the
consent of the resident, has intentionally or recklessly caused or permitted,
or is likely to cause or permit—
(a) personal
injury to—
(i) the
park owner or the park owner's agent; or
(ii) a
person in the residential park or in the vicinity of the residential park; or
(b) serious
damage to the rented property or other property in the residential park; or
(c) serious
interference—
(i) with
the reasonable peace, comfort or privacy of another resident in the other
resident's use of rented property or with the reasonable use or enjoyment by
another resident of common areas of the residential park; or
(ii) with
the reasonable peace, comfort or privacy of a person residing in the immediate
vicinity of the residential park.
(2) A
notice given under this section may terminate the agreement immediately.
58—Termination where periodic tenancy and sale of rented property
(1) A park owner may, by notice of termination
given to the resident, terminate a residential park tenancy agreement for a
periodic tenancy on the ground that the park owner—
(a) has
entered into a contract for the sale of the rented property or the dwelling
comprised in the rented property; and
(b) is
required under the contract to give vacant possession of the rented property or
the dwelling.
(2) The
period of notice given under this section must be at least 28 days or a period
equivalent to a single period of the tenancy (whichever is the longer).
(3) A person must not falsely state the ground
of termination in a notice of termination given, or purportedly given, under
this section.
Maximum penalty: $2 500.
(4) A park owner who recovers possession of
rented property under this section must not, without the consent of the
Tribunal, enter into a residential park tenancy agreement with any person in
relation to the same rented property within 6 months after recovering
possession.
Maximum penalty: $2 500.
59—Termination where periodic tenancy and no specified ground of termination
(1) A
park owner may, by notice of termination given to the resident, terminate a
residential park tenancy agreement for a periodic tenancy without specifying a
ground of termination.
(2) However, an agreement cannot be terminated
under this section if—
(a) the
rented property is subject to a housing improvement notice; or
(b) an
order is in force under section 22 in respect of the rented property or
proceedings for such an order have been commenced.
(3) The
period of notice under this section must be at least 60 days or a period
equivalent to a single period of the tenancy (whichever is the longer).
60—Termination at end of fixed term
(1) A
park owner may, by notice of termination given to the resident, terminate a
residential park tenancy agreement for a fixed term at the end of the fixed
term without specifying a ground of termination.
(2) The
period of notice under this section must be at least 28 days.
61—Termination where agreement frustrated
(1) A park owner may, by notice of termination
given to the resident, terminate a residential park tenancy agreement on the
ground that, otherwise than as a result of a breach of the agreement, the
rented property or a substantial portion of the rented property—
(a) has
been destroyed or rendered uninhabitable; or
(b) has
ceased to be lawfully usable for residential purposes; or
(c) has
been acquired by compulsory process.
(2) A
notice given under subsection (1)(a) or (b) may terminate the agreement
immediately.
(3) A
notice given under subsection (1)(c) must provide for a period of notice
of at least 60 days.
Subdivision 2—Termination by residents
62—Termination for breach of agreement
(1) If the park owner breaches a residential
park tenancy agreement, the resident may give the park owner a written notice,
in the form approved by the Commissioner—
(a) specifying
the breach; and
(b) informing
the park owner that if the breach is not remedied within a specified period
(which must be a period of at least 14 days) from the date the notice is given,
then—
(i) the
agreement is terminated by force of the notice; and
(ii) the
resident will give up vacant possession of the rented property before the end
of the next day.
(2) The park owner may, before the time fixed
in the resident's notice for termination of the agreement or the resident gives
up vacant possession of the rented property (whichever is the later), apply to
the Tribunal for an order—
(a) declaring
that the park owner is not in breach of the agreement, or has remedied the
breach of the agreement, and that the agreement is not liable to be terminated
under this section; or
(b) reinstating
the agreement.
(3) If
the Tribunal is satisfied that a residential park tenancy agreement has been
validly terminated under this section, but that it is just and equitable to
reinstate the agreement (or would be just and equitable to reinstate the
agreement if the conditions of the order were complied with), the Tribunal may
make an order reinstating the agreement.
(4) An
order reinstating the agreement under this section may be made on conditions
that the Tribunal considers appropriate.
63—Termination where successive breaches of agreement
(1) A resident may, by notice of termination
given to the park owner, terminate a residential park tenancy agreement on the
ground that the park owner—
(a) has
breached a term of the agreement; and
(b) had
committed breaches of the same term of the agreement on at least 2 previous
occasions and been given separate notice under section 62 in respect of
each of those breaches.
(2) The
period of notice given under this section must be at least 14 days.
64—Termination where periodic tenancy and no specified ground of termination
(1) A
resident may, by notice of termination given to the park owner, terminate a
residential park tenancy agreement for a periodic tenancy without specifying a
ground of termination.
(2) The
period of notice under this section must be at least 21 days or a period
equivalent to a single period of the tenancy (whichever is longer).
65—Termination at end of fixed term
(1) A
resident may, by notice of termination given to the park owner, terminate a
residential park tenancy agreement for a fixed term at the end of the fixed
term without specifying a ground of termination.
(2) The
period of notice under this section must be at least 28 days.
66—Termination where agreement frustrated
(1) A resident may, by notice of termination
given to the park owner, terminate a residential park tenancy agreement on the
ground that, otherwise than as a result of a breach of the agreement, the
rented property or a substantial portion of the rented property—
(a) has
been destroyed or rendered uninhabitable; or
(b) has
ceased to be lawfully usable for residential purposes; or
(c) has
been acquired by compulsory process.
(2) A
notice given under this section may terminate the agreement immediately.
Division 3—Residential park site agreements—termination by
parties
Subdivision 1—Termination by park owners
67—Termination for breach of agreement
(1) If the resident breaches a residential park
site agreement, the park owner may give the resident a written notice in the
form approved by the Commissioner—
(a) specifying
the breach; and
(b) informing
the resident that if the breach is not remedied within a specified period
(which must be a period of at least 28 days) from the date the notice is given,
then—
(i) the
agreement is terminated by force of the notice; and
(ii) the
resident must give up vacant possession of the rented property before the end
of the next day.
(2) If notice is given under this section on
the ground of a failure to pay rent—
(a) the
notice is ineffectual unless the rent (or any part of the rent) has remained
unpaid in breach of the agreement for not less than 7 days before the notice
was given; and
(b) the
notice is not rendered ineffectual by failure by the park owner to make a prior
formal demand for payment of the rent.
(3) If
notice is given under this section in respect of a residential park site
agreement for a fixed term, the notice is not ineffectual because the day
specified as the day on which the resident is to give up vacant possession of
the rented property is earlier than the last day of that term.
(4) The resident may, at any time after
receiving a notice under this section and before giving vacant possession to
the park owner, apply to the Tribunal for an order—
(a) declaring
that the resident is not in breach of the residential park agreement, or has
remedied the breach of the agreement, and that the agreement is not liable to
be terminated under this section; or
(b) reinstating
the agreement.
(5) If
the Tribunal is satisfied that a residential park site agreement has been
validly terminated under this section, but that it is just and equitable to
reinstate the agreement (or would be just and equitable to reinstate the agreement
if the conditions of the order were complied with), the Tribunal may make an
order reinstating the agreement.
(6) An
order reinstating the agreement under this section may be made on conditions
that the Tribunal considers appropriate.
(7) On
an application for an order reinstating the agreement, the Tribunal may make
alternative orders providing for reinstatement of the agreement if specified
conditions are complied with but, if not, ordering the resident to give up
vacant possession of the rented property to the park owner.
68—Termination where successive breaches of agreement
(1) A park owner may, by notice of termination
given to the resident, terminate a residential park site agreement on the
ground that the resident—
(a) has
breached a term of the agreement; and
(b) had
committed breaches of the same term of the agreement on at least 2 previous
occasions and been given separate notice under section 67 in respect of
each of those breaches.
(2) The
period of notice given under this section must be at least 28 days.
(3) If notice is given under this section on
the ground of a failure to pay rent—
(a) the
notice is ineffectual unless the rent (or any part of the rent) has remained
unpaid in breach of the agreement for not less than 7 days before the notice
was given; and
(b) the
notice is not rendered ineffectual by failure by the park owner to make a prior
formal demand for payment of the rent.
69—Termination where serious misconduct by resident
(1) A park owner may, by notice of termination
given to the resident, terminate a residential park site agreement on the
ground that the resident, or a person permitted on the rented property with the
consent of the resident, has intentionally or recklessly caused or permitted,
or is likely to cause or permit—
(a) personal
injury to—
(i) the
park owner or the park owner's agent; or
(ii) a
person in the residential park or in the vicinity of the residential park; or
(b) serious
damage to the rented property or other property in the residential park; or
(c) serious
interference—
(i) with
the reasonable peace, comfort or privacy of another resident in the other
resident's use of rented property or with the reasonable use or enjoyment by
another resident of common areas of the residential park; or
(ii) with
the reasonable peace, comfort or privacy of a person residing in the immediate
vicinity of the residential park.
(2) A
notice given under this section may terminate the agreement immediately.
70—Termination where periodic tenancy and no specified ground of termination
(1) A
park owner may, by notice of termination given to the resident, terminate a
residential park site agreement for a periodic tenancy without specifying a
ground of termination.
(2) However,
an agreement cannot be terminated under this section if an order is in force
under section 22 in respect of the rented property or proceedings for such
an order have been commenced.
(3) The
period of notice under this section must be at least 90 days.
71—Termination at end of fixed term
(1) A
park owner may, by notice of termination given to the resident, terminate a
residential park site agreement for a fixed term at the end of the fixed term
without specifying a ground of termination.
(2) The
period of notice under this section must be at least 28 days.
72—Termination where agreement frustrated
(1) A park owner may, by notice of termination
given to the resident, terminate a residential park site agreement on the
ground that, otherwise than as a result of a breach of the agreement, the
rented property or a substantial portion of the rented property—
(a) has
been destroyed or rendered uninhabitable; or
(b) has
ceased to be lawfully usable for residential purposes; or
(c) has
been acquired by compulsory process.
(2) A
notice given under subsection (1)(a) or (b) may terminate the agreement
immediately.
(3) A
notice given under subsection (1)(c) must provide for a period of notice
of at least 60 days.
Subdivision 2—Termination by residents
73—Termination for breach of agreement
(1) If the park owner breaches a residential
park site agreement, the resident may give the park owner a written notice, in
the form approved by the Commissioner—
(a) specifying
the breach; and
(b) informing
the park owner that if the breach is not remedied within a specified period
(which must be a period of at least 14 days) from the date the notice is given,
then—
(i) the
agreement is terminated by force of the notice; and
(ii) the
resident will give up vacant possession of the rented property before the end
of the next day.
(2) The park owner may, before the time fixed
in the resident's notice for termination of the agreement or the resident gives
up vacant possession of the rented property (whichever is the later), apply to
the Tribunal for an order—
(a) declaring
that the park owner is not in breach of the agreement, or has remedied the
breach of the agreement, and that the agreement is not liable to be terminated
under this section; or
(b) reinstating
the agreement.
(3) If
the Tribunal is satisfied that a residential park site agreement has been
validly terminated under this section, but that it is just and equitable to
reinstate the agreement (or would be just and equitable to reinstate the
agreement if the conditions of the order were complied with), the Tribunal may
make an order reinstating the agreement.
(4) An
order reinstating the agreement under this section may be made on conditions
that the Tribunal considers appropriate.
74—Termination where successive breaches of agreement
(1) A resident may, by notice of termination
given to the park owner, terminate a residential park site agreement on the
ground that the park owner—
(a) has
breached a term of the agreement; and
(b) had
committed breaches of the same term of the agreement on at least 2 previous
occasions and been given separate notice under section 73 in respect of
each of those breaches.
(2) The
period of notice given under this section must be at least 14 days.
75—Termination where periodic tenancy and no specified ground of termination
(1) A
resident may, by notice of termination given to the park owner, terminate a
residential park site agreement for a periodic tenancy without specifying a
ground of termination.
(2) The
period of notice under this section must be at least 28 days or a period
equivalent to a single period of the tenancy (whichever is longer).
76—Termination at end of fixed term
(1) A
resident may, by notice of termination given to the park owner, terminate a
residential park site agreement for a fixed term at the end of the fixed term
without specifying a ground of termination.
(2) The
period of notice under this section must be at least 28 days.
77—Termination where agreement frustrated
(1) A resident may, by notice of termination
given to the park owner, terminate a residential park site agreement on the
ground that, otherwise than as a result of a breach of the agreement, the
rented property or a substantial portion of the rented property—
(a) has
been rendered uninhabitable; or
(b) has
ceased to be lawfully usable for residential purposes; or
(c) has
been acquired by compulsory process.
(2) A
notice given under this section may terminate the agreement immediately.
Division 4—Termination by Tribunal
78—Termination on application by park owner
The Tribunal may, on application by a park
owner, terminate a residential park agreement and make an order for possession
of the rented property if satisfied that—
(a) the
resident has committed a breach of the agreement; and
(b) the
breach is sufficiently serious to justify termination of the agreement.
79—Termination on application by resident
The Tribunal may, on application by a
resident, terminate a residential park agreement and make an order for
possession of the rented property if satisfied that—
(a) the
park owner has committed a breach of the agreement; and
(b) the
breach is sufficiently serious to justify termination of the agreement.
80—Termination based on hardship
(1) If
the continuation of a residential park agreement would result in undue hardship
to the park owner or the resident, the Tribunal may, on application by the park
owner or the resident, terminate the agreement from a date specified in the
Tribunal's order and make an order for possession of the rented property as
from that day.
(2) The
Tribunal may also make an order compensating a park owner or resident for loss
and inconvenience resulting, or likely to result, from the early termination of
the agreement.
Division 5—Form of notices of termination
81—Form of notice of termination
(1) A notice of termination given by a park
owner to a resident must—
(a) be
in writing and in the form approved by the Commissioner; and
(b) be
signed by the park owner or the park owner's agent; and
(c) state
the address of the rented property subject to the residential park agreement;
and
(d) state
the day on which the resident is required to give up vacant possession of the
rented property to the park owner; and
(e) if
the residential park agreement is to be terminated on a particular ground—specify
and give reasonable particulars of the ground of termination; and
(f) include
any further information required by the Commissioner.
(2) A notice of termination given by a resident
to a park owner must—
(a) be
in writing and in the form approved by the Commissioner; and
(b) be
signed by the resident or an agent of the resident; and
(c) state
the address of the rented property subject to the residential park agreement;
and
(d) state
the day on which the resident is to give up vacant possession of the rented
property to the park owner; and
(e) if
the residential park agreement is to be terminated on a particular ground—specify
and give reasonable particulars of the ground of termination; and
(f) include
any further information required by the Commissioner.
Division 6—Repossession of rented property
(1) The
Tribunal may, on application by the park owner, if satisfied that a residential
park agreement has terminated, make an order for possession of the rented
property.
(2) The
order for possession will take effect on a date specified by the Tribunal in
the order, being a date not more than 7 days after the date of the order.
(3) However, if the Tribunal, although
satisfied that the park owner is entitled to an order for possession of the
rented property, is satisfied by the resident that the grant of an order for
immediate possession of the rented property would cause severe hardship to the
resident, the Tribunal may—
(a) suspend
the operation of the order for possession for up to 90 days; and
(b) extend
the operation of the residential park agreement until the park owner obtains
vacant possession of the rented property from the resident.
(4) In
extending the operation of the residential park agreement, the Tribunal may
make modifications to the agreement that it considers appropriate (but the
modifications cannot reduce the resident's financial obligations under the
agreement except as may be appropriate for the recovery by the resident of any
compensation payable to the resident).
(5) If
the resident fails to comply with an order for possession, the park owner is
entitled to compensation for any loss caused by that failure.
(6) The
Tribunal may, on application by the park owner, order the resident to pay to
the park owner compensation to which the park owner is entitled under
subsection (5).
83—Abandonment of rented property
(1) The Tribunal may, on application by a park
owner—
(a) declare
that a resident abandoned rented property on a day stated in the declaration;
and
(b) make
an order for immediate possession of the rented property.
(2) In deciding whether a resident has
abandoned rented property, the following matters are to be considered:
(a) whether
rent payable under the residential park agreement is unpaid;
(b) whether
the dwelling is unoccupied and neglected;
(c) whether
the resident's mail is being collected;
(d) reports
from neighbours, or other persons, about the absence or whereabouts of the
resident;
(e) whether
electricity or other services to the rented property have been disconnected or
terminated;
(f) whether
the resident's personal effects have been removed from the rented property;
(g) any
other matters the Tribunal considers relevant.
(3) A
resident is to be taken to have abandoned the rented property on the day stated
in a declaration under this section.
(4) If
a resident has abandoned rented property, the park owner is entitled to
compensation for any loss (including loss of rent) caused by the abandonment.
(5) However,
the park owner must take reasonable steps to mitigate any loss and is not
entitled to compensation for loss that could have been avoided by those steps.
(6) The
Tribunal may, on application by the park owner, order the resident to pay to
the park owner compensation to which the park owner is entitled under this
section.
84—Repossession of rented property
A person must not enter rented property
for the purpose of taking possession of the rented property before, or after,
the end of a residential park agreement unless—
(a) the
resident abandons, or voluntarily gives up possession of, the rented property;
or
(b) the person is authorised to take possession
of the rented property under the order of a court or the Tribunal.
Maximum penalty: $2 500.
85—Forfeiture of head tenancy not to automatically end agreement
(1) A
person cannot take possession of rented property so as to defeat the resident's
right to possession under the residential park agreement unless an order for
possession of the rented property is made by a court or the Tribunal.
(2) If
a person is entitled to possession of rented property as against a person who
granted a residential park agreement, a court before which proceedings for
possession of the rented property are brought, or the Tribunal, may, on application
by an interested person, vest the residential park agreement in the person who
would, but for the agreement, be entitled to possession of the rented property
so that the resident holds the rented property directly from that person as
park owner.
(3) An
order may be made under subsection (2) on terms and conditions the court
or Tribunal considers just.
Division 7—Enforcement of orders for possession
86—Enforcement of orders for possession
(1) If
an order for possession of rented property has been made by the Tribunal but
has not been complied with, the registrar or a deputy registrar must, at the
written or oral request of the person in whose favour the order was made (or an
agent of that person), direct a bailiff of the Tribunal to enforce the order.
(2) A
bailiff of the Tribunal must enforce an order for possession as soon as is
practicable after being directed to do so under this section provided that a
fee of an amount prescribed by the regulations has first been paid to the
bailiff in respect of the enforcement action (which fee may be retained by the
bailiff).
(3) A
bailiff enforcing an order for possession of rented property may enter the
rented property, ask questions and take all steps as are reasonably necessary
for the purpose of enforcing the order.
(4) In
enforcing an order for possession, the bailiff is responsible for securing the
removal of persons only and not property.
(5) A
police officer must, if requested by a bailiff, assist the bailiff in enforcing
an order for possession.
(6) In
the exercise of the powers conferred by this section a bailiff may use the
force that is reasonable and necessary in the circumstances.
(7) A person must not hinder or obstruct a
bailiff in the exercise of the powers conferred by this section.
Maximum penalty: $2 500.
(8) A person questioned under this section must
not refuse or fail to answer the question to the best of his or her knowledge,
information and belief.
Maximum penalty: $2 500.
(9) However,
a person is not obliged to answer a question under this section if to do so
might tend to incriminate the person or to make the person liable to a penalty,
or would require the disclosure of information that is privileged under the
principles of legal professional privilege.
(10) A
bailiff or a member of the police force assisting a bailiff incurs no civil or
criminal liability for an honest act or omission in carrying out or purportedly
carrying out official functions under this section.
Division 8—Retaliatory action by park owner
87—Retaliatory action by park owner
(1) This section applies to proceedings before
the Tribunal—
(a) on
an application by a park owner for an order for possession of rented property
or for both termination of a residential park agreement and an order for
possession of the rented property; or
(b) on
an application by a resident for relief under this section following receipt of
a notice of termination (whether or not the residential park agreement has
terminated by force of the notice).
(2) If the Tribunal is satisfied that the park
owner was wholly or partly motivated to make the application or give the notice
of termination (as the case may be) by action of the resident to complain to a
government authority or secure or enforce the resident's rights as a resident,
the Tribunal may, if the Tribunal considers it appropriate to do so in the
circumstances of the case, do either or both of the following:
(a) refuse
the park owner's application;
(b) make
an order reinstating the residential park agreement on such conditions (if any)
as the Tribunal considers appropriate.
(3) If
the resident alleges retaliatory action on the part of the park owner and the
Tribunal is satisfied that the resident had, within the preceding 6 months,
taken action to complain to a government authority or secure or enforce the
resident's rights as a resident, the burden will lie on the park owner to prove
that the park owner was not wholly or partly motivated to make the application
or give the notice of termination (as the case may be) by the action of the
resident.
Division 9—Resident to give forwarding address
88—Resident to give forwarding address
If—
(a) a
residential park agreement has terminated; or
(b) a
notice has been given under this Part that will terminate a residential park agreement,
the resident must not fail, without
reasonable excuse, to comply with a request of the park owner for the
resident's forwarding address and must comply with the request immediately, or,
if the address is not then known, as soon as practicable after it becomes
known.
Maximum penalty: $750.
Expiation fee: $105.
Division 10—Abandoned property
This Division applies to property (abandoned property)
that is left on a site by the resident after termination of the residential
park agreement.
90—Offence to deal with abandoned property in unauthorised way
A park owner must not deal with abandoned
property otherwise than in accordance with this Division.
Maximum penalty: $2 500.
91—Action to deal with abandoned property other than personal documents
(1) This
section applies to abandoned property other than personal documents.
(2) The
park owner may, at any the time after recovering possession of the site, remove
from the site and destroy or dispose of abandoned property consisting of
perishable foodstuffs.
(3) The
following provisions of this section apply subject to section 93 if the
abandoned property consists of or includes a dwelling installed or located on
the site under a residential park site agreement or an item of property of a
value or kind prescribed by regulation.
(4) The
park owner may, at any the time after recovering possession of the site, remove
from the site and destroy or dispose of abandoned property, other than
perishable foodstuffs, if the value of the property is less than a fair
estimate of the cost of removal, storage and sale of the property.
(5) If there is any abandoned property (other
than personal documents) on the site that may not be dealt with under
subsection (2) or (4) (valuable abandoned property), the
park owner must—
(a) as
soon as practicable—
(i) give
notice, in the form approved by the Commissioner, to the resident if the park
owner has a forwarding address for the resident;
(ii) if
the park owner does not have a forwarding address for the resident—publish
notice, in the form approved by the Commissioner, in a newspaper circulating
generally throughout the State;
(iii) if
a person other than the resident has, to the knowledge of the park owner, an
interest in the property and the person's name and address are known to, or
reasonably ascertainable by, the park owner—give notice, in the form approved
by the Commissioner, to that other person; and
(b) take
reasonable steps to keep the property safe until at least 28 days after the
giving of such notice.
(6) A
person who is entitled to possession of valuable abandoned property may reclaim
the property by paying to the park owner the reasonable costs incurred by the
park owner in dealing with the property in accordance with this Division and
any other reasonable costs incurred by the park owner as a result of the
property being left on the site.
(7) If
valuable abandoned property is not reclaimed within 28 days after the giving of
notice under subsection (5), the park owner must, as soon as practicable
after the end of that period, have the property sold by public auction.
(8) The
park owner may use reasonable force to gain entry to the property or remove or
deal with it as reasonably necessary for the park owner's use of the site or
the sale of the property.
(9) On the sale of the property by public
auction, the park owner—
(a) may
retain out of the proceeds of sale—
(i) the
reasonable costs incurred by the park owner in dealing with the property in
accordance with this Division and any other reasonable costs incurred by the
park owner as a result of the property being left on the site; and
(ii) any
amounts owed to the park owner under the residential park agreement; and
(b) must
pay the balance (if any) to the owner of the property, or if the identity and
address of the owner are not known to, or reasonably ascertainable by, the park
owner, to the Commissioner for the credit of the Fund.
(10) If property is sold by public auction under
this section, the purchaser acquires a good title to the property which defeats—
(a) the
resident's interest in the property; and
(b) the
interest of any other person unless the purchaser has actual notice of the
interest before purchasing the property.
(11) If
a dispute arises between a park owner and resident about the exercise of powers
conferred by this section, the Tribunal may, on application by either party to
the dispute, make orders resolving the matters in dispute.
92—Action to deal with abandoned personal documents
(1) This
section applies to abandoned property consisting of personal documents.
(2) This
section applies subject to section 93 if the abandoned property also
includes a dwelling installed or located on the site under a residential park
site agreement or an item of property of a value or kind prescribed by
regulation.
(3) The park owner must—
(a) as
soon as practicable, give notice, in the form approved by the Commissioner, to
the resident if the park owner has a forwarding address for the resident; and
(b) take
reasonable steps to keep the documents safe for at least 28 days.
(4) If
the personal documents are not reclaimed by the resident within 28 days, the
park owner may destroy or dispose of the documents.
(5) Subsection (4)
applies subject to any Act relating to the preservation of records.
93—Action to deal with abandoned dwellings or prescribed items
(1) This
section applies if there is abandoned property consisting of or including a
dwelling installed or located on the site under a residential park site
agreement or an item of property of a value or kind prescribed by regulation.
(2) The
park owner may not take any action to deal with the property unless the
Tribunal has made an order for possession of the site.
(3) The
park owner must take reasonable steps to keep the property safe on the site
pending the determination of proceedings before the Tribunal for an order for
possession of the site.
(4) If
the Tribunal has made an order for possession of the site, the provisions of
sections 91 and 92 apply in relation to the abandoned property, but in the
application of section 91 to the dwelling or item of property of a value
or kind prescribed by regulation, the reference in that section to 28 days is
to be read as a reference to 60 days.
Part 9—Serious acts of violence
94—Park owner may give person notice to leave for serious act of violence
(1) A park owner may give a resident a notice
to leave the residential park immediately if the park owner has reasonable
grounds to believe that—
(a) a
serious act of violence by the resident has occurred in the park; or
(b) the
safety of any person in the park is in danger from the resident.
(2) A park owner may give a person permitted on
rented property with the consent of the resident (a resident's visitor)
a notice to leave the residential park immediately if the park owner has reasonable
grounds to believe that—
(a) a
serious act of violence by the resident's visitor has occurred in the park; or
(b) the
safety of any person in the park is in danger from the resident's visitor.
(3) A
notice to leave under this section must be in the form approved by the
Commissioner.
(4) A
notice to leave under this section must be given as soon as it is possible for
the park owner to safely do so after the serious act of violence has occurred
or the safety of a person in the park has been endangered.
(5) A park owner must not give a notice under
this section, or a document that purports to be a notice to leave under this
section, unless the park owner has reasonable grounds to believe that—
(a) a
serious act of violence by a resident or resident's visitor has occurred in the
residential park; or
(b) the safety of any person in the residential
park is in danger from a resident or a resident's visitor.
Maximum penalty: $1 250.
(6) A person who has been given a notice to
leave a residential park under this section must not remain in the park after
receiving the notice.
Maximum penalty: $1 250.
(1) If
a resident is given a notice to leave under this Part, the residential park
agreement is suspended.
(2) Despite
subsection (1), unless the Tribunal makes an order under section 98,
the resident is still required to pay any rent under the residential park
agreement in respect of the period that the agreement is suspended.
A suspension under this Part remains in
force—
(a) until
the end of 2 business days after it commences; or
(b) if
an application is made under section 98, until the Tribunal has heard and
determined the application.
97—Entry to park prohibited during suspension
A resident whose agreement has been
suspended under this Part must not enter the residential park during the period
that the suspension is in force.
Maximum penalty: $1 250.
98—Park owner may make urgent application to Tribunal
(1) A
park owner who gives a resident a notice to leave the residential park under
this Part, may apply to the Tribunal for an order that the residential park
agreement be terminated.
(2) An
application under subsection (1) must be made before the end of 2 business
days after the suspension of the agreement.
(3) On hearing an application under this
section, the Tribunal may—
(a) make
an order terminating the residential park agreement as at the date of the order
and make an order for possession of the rented property; or
(b) order
that the suspension of the agreement cease and that the resident be allowed to
resume occupation of the rented property under the agreement.
(4) The
Tribunal may make any ancillary or incidental orders that the Tribunal
considers appropriate.
(5) If the Tribunal orders that the suspension
of the agreement is to cease and is satisfied that the park owner had no
reasonable basis on which to have given the resident notice under this Part—
(a) the
resident is not required to pay rent in respect of the period of the
suspension; and
(b) the
Tribunal may order that compensation be paid to the resident for either or both
of the following:
(i) rent
paid in respect of the period of suspension;
(ii) reasonable
expenses incurred by the resident relating to the period of suspension.
99—Occupation of rented property pending application or hearing
(1) A park owner must not, during the period of
suspension of a residential park agreement, allow any third person to occupy
the rented property.
Maximum penalty: $1 250.
(2) In this section—
third person means a person other than the resident or a person who would
reside on the rented property with the resident if notice to leave the
residential park had not been given to the resident and the residential park
agreement were not suspended.
Part 10—Residential Tenancies Tribunal
Division 1—Role of registrars and magistrates
100—Registrars may exercise jurisdiction in certain cases
The registrar or a deputy registrar may—
(a) exercise
the jurisdiction of the Tribunal under this Act if specifically authorised to
do so by or under this Act; and
(b) subject
to direction by the Presiding Member—exercise the jurisdiction of the Tribunal
under this Act in respect of classes of matters, or in circumstances, specified
by the regulations.
101—Magistrates may exercise jurisdiction in certain cases
(1) A
magistrate may exercise the jurisdiction of the Tribunal under this Act.
(2) The
regulations may prescribe a scheme for the listing of matters before
magistrates.
(3) A
regulation cannot be made for the purposes of subsection (2) except after
the Minister has consulted with the Presiding Member of the Tribunal and the
Chief Magistrate.
(4) A
magistrate exercising the jurisdiction of the Tribunal under this Act is taken
to be a member of the Tribunal.
Division 2—Proceedings before Tribunal
(1) The
Tribunal is constituted for the purpose of hearing proceedings under this Act
of a single member of the Tribunal.
(2) The
Tribunal may, at any one time, be separately constituted for the hearing and
determination of a number of separate matters under this Act.
The Tribunal must, where practicable, hear and determine
proceedings under this Act within 14 days after the proceedings are commenced
and, if that is not practicable, as expeditiously as possible.
Division 3—Tribunal's jurisdiction
(1) The
Tribunal has exclusive jurisdiction to hear and determine a residential park
dispute.
(2) However,
the Tribunal does not have jurisdiction to hear and determine a monetary claim
under this Act if the amount claimed exceeds $40 000 unless the parties to
the proceedings consent in writing to the claim being heard and determined by
the Tribunal (and if consent is given, it is irrevocable).
(3) If
a monetary claim under this Act is above the Tribunal's jurisdictional limit,
the claim and any other claims related to the same residential park agreement
may be brought in a court competent to hear and determine a claim founded on
contract for the amount of the claim.
(4) A
court in which proceedings are brought under subsection (3) may exercise
the powers of the Tribunal under this Act.
(1) An
application under this Act to the Tribunal must be in the form approved by the
Commissioner.
(2) Before the Tribunal proceeds to hear an
application under this Act it must—
(a) give
the applicant notice in writing setting out the time and place at which it will
hear the application; and
(b) give
to any other party—
(i) notice
in writing setting out the time and place at which it will hear the
application; and
(ii) notice
of the nature of the application as it thinks fit.
(3) A
fee prescribed by regulation is payable on an application under this section.
(1) The
Commissioner may appoint mediators for this Act.
(2) The
Commissioner may appoint a person as a mediator only if the Commissioner is
satisfied the person is qualified for appointment because the person has the
necessary expertise or experience.
(3) Without
limiting subsection (2), the Commissioner may be satisfied a person has
the necessary expertise or experience because the person has satisfactorily
completed the training approved by the Commissioner for this section.
(4) A
mediator appointed under this section has the same protection and immunity as a
member of the Tribunal.
107—Referral of applications to mediation
(1) The
registrar or deputy registrar may refer applications to the Tribunal, of a
class prescribed by the regulations, to the Commissioner for Consumer Affairs
for mediation.
(2) A
mediator nominated by the Commissioner will act as the mediator of a
residential park dispute referred for mediation.
108—Mediator to notify parties
The mediator must notify the parties to a residential park dispute
of the time and place fixed for mediation of the dispute.
(1) Mediators have the following functions in
the mediation of a residential park dispute:
(a) to
encourage the settlement of the dispute by facilitating, and helping to
conduct, negotiations between the parties to the dispute;
(b) to
promote the open exchange of information relevant to the dispute by the
parties;
(c) to
provide to the parties information about the operation of this Act relevant to
a settlement of the dispute;
(d) to
help in the settlement of the dispute in any other appropriate way.
(2) A
mediator does not have the power to determine any matter in dispute, whether or
not the parties request or consent to such action.
(1) Mediation
of a residential park dispute may, at the discretion of the mediator, be
adjourned from time to time.
(2) Unless
the mediator decides otherwise, the mediation will be held in private and the
mediator may exclude from the mediation any person apart from the parties and
their representatives.
(3) A
party must, if required by the mediator, disclose to the other party details of
the party's case and of the evidence available to the party in support of that
case.
(4) The
mediator or a party may terminate a mediation at any time.
(5) A
settlement to which a party agrees at a mediation is binding on the party
provided that it is not inconsistent with this Act.
(6) The
settlement must be put into writing and signed by or for the parties.
(7) The
mediator may make a determination or order to give effect to the settlement.
(8) A
determination or order made by a mediator under this section operates as a
determination or order of the Tribunal.
(9) If
a mediation is terminated because it appears to the mediator that it is
unlikely that an agreed settlement can be reached within a reasonable time or
for any other reason, the mediator must refer the matter to the registrar or
deputy registrar for the listing of the matter before the Tribunal.
111—Representation of parties in mediation
A party to a residential park dispute may
be represented by a person who is not a lawyer in the mediation of the dispute
if—
(a) the
party is a body corporate and the representative is an officer or employee of
the body corporate; or
(b) all
parties to the proceedings agree to the representation and the mediator is
satisfied that it will not unfairly disadvantage an unrepresented party; or
(c) the
mediator is satisfied that the party is unable to present the party's case
properly without assistance.
Evidence of anything said or done in the course of mediation under
this Division is inadmissible in proceedings before the Tribunal except by
consent of all parties to the proceedings.
Division 5—Intervention by Commissioner
(1) The
Commissioner may intervene in proceedings before the Tribunal or a court
concerning a residential park dispute.
(2) If
the Commissioner intervenes in proceedings, the Commissioner becomes a party to
the proceedings and has all the rights (including rights of appeal) of a party
to the proceedings.
Division 6—Evidentiary and procedural powers
114—Tribunal's powers to gather evidence
(1) For the purpose of proceedings under this
Act, the Tribunal may—
(a) by
summons signed by a member, registrar or deputy registrar of the Tribunal,
require a person to attend before the Tribunal;
(b) by
summons signed by a member, registrar or deputy registrar of the Tribunal,
require the production of books, papers or documents;
(c) inspect
books, papers or documents produced before it, retain them for a reasonable
period, and make copies of them, or of their contents;
(d) require
a person appearing before the Tribunal to make an oath or affirmation that the
person will truly answer relevant questions put by the Tribunal or a person
appearing before the Tribunal;
(e) require
a person appearing before the Tribunal (whether summoned to appear or not) to
answer any relevant questions put by the Tribunal or a person appearing before
the Tribunal.
(2) If a person—
(a) fails
without reasonable excuse to comply with a summons under subsection (1);
or
(b) refuses
or fails to comply with a requirement of the Tribunal under
subsection (1); or
(c) misbehaves
before the Tribunal, wilfully insults the Tribunal or interrupts the
proceedings of the Tribunal,
the person is guilty of an offence.
Maximum penalty: $2 500.
(3) Evidence
before the Tribunal cannot be used in criminal proceedings except proceedings
for an offence against this Act or for perjury.
115—Procedural powers of Tribunal
(1) In proceedings under this Act, the Tribunal
may—
(a) hear
an application in the way the Tribunal considers most appropriate;
(b) decline
to entertain an application, or adjourn a hearing, until the fulfilment of
conditions fixed by the Tribunal with a view to promoting the settlement of
matters in dispute between the parties;
(c) decline
to entertain an application if it considers the application frivolous;
(d) proceed
to hear and determine an application in the absence of a party;
(e) extend
a period prescribed by or under this Act within which an application or other
step in respect of proceedings must be made or taken (even if the period had
expired);
(f) vary
or set aside an order if the Tribunal considers there are proper grounds for
doing so;
(g) adjourn
a hearing to a time or place or to a time and place to be fixed;
(h) allow
the amendment of an application;
(i) hear
an application jointly with another application;
(j) receive
in evidence a transcript of evidence in proceedings before a court and draw
conclusions of fact from that evidence;
(k) adopt,
as in its discretion it considers proper, the findings, decision or judgment of
a court that may be relevant to the proceedings;
(l) generally
give directions and do all things that it thinks necessary or expedient in the
proceedings.
(2) The
Tribunal's proceedings under this Act must be conducted with the minimum of
formality and in the exercise of its jurisdiction under this Act the Tribunal
is not bound by evidentiary rules but may inform itself as it thinks
appropriate.
116—General powers of Tribunal to cure irregularities
(1) The
Tribunal may, if satisfied that it would be just and equitable to do so, excuse
a failure to comply with a provision of this Act on terms and conditions the
Tribunal considers appropriate.
(2) The
Tribunal may amend proceedings if satisfied that the amendment will contribute
to the expeditious and just resolution of the questions in issue between the
parties.
Division 7—Judgments and orders
117—General powers of Tribunal to resolve disputes
(1) The Tribunal may, on application by a party
to a residential park dispute—
(a) restrain
an action in breach of this Act or a residential park agreement or collateral
agreement; or
(b) require
a person to comply with an obligation under this Act or a residential park
agreement or collateral agreement; or
(c) order
a person to make a payment (which may include compensation) under this Act or a
residential park agreement or collateral agreement or for breach of this Act or
a residential park agreement or collateral agreement; or
(d) modify
a residential park agreement to enable the resident to recover compensation
payable to the resident by way of a reduction in the rent otherwise payable
under the agreement; or
(e) relieve
a party to a residential park agreement or collateral agreement from the
obligation to comply with a provision of the agreement; or
(f) terminate
a residential park agreement or declare that a residential park agreement has,
or has not, terminated; or
(g) reinstate
rights under a residential park agreement that have been forfeited or have
otherwise terminated; or
(h) require
payment of rent into the Fund until conditions stipulated by the Tribunal have
been complied with; or
(i) require
that rent paid into the Fund be paid out and applied as directed by the
Tribunal; or
(j) require
that a bond paid into the Fund be paid out and applied as directed by the
Tribunal; or
(k) require
a resident to give up possession of rented property to the park owner; or
(l) make
orders to give effect to rights and liabilities arising from the assignment of
a residential park agreement; or
(m) exercise
any other power conferred on the Tribunal under this Act; or
(n) do
anything else necessary or desirable to resolve a residential park dispute.
(2) The
Tribunal does not have jurisdiction to award compensation for damages arising
from personal injury.
118—Special powers to make orders and give relief
(1) The
Tribunal may in proceedings under this Act make an order in the nature of an
injunction (including an interim injunction) or an order for specific
performance.
(2) However,
a member of the Tribunal who is not legally qualified cannot make an order
under subsection (1) without the approval of the Presiding Member of the
Tribunal.
(3) Although
a particular form of relief is sought by a party to proceedings before the
Tribunal, the Tribunal may grant any other form of relief that it considers
more appropriate to the circumstances of the case.
(4) The
Tribunal may make interlocutory orders on matters within its jurisdiction under
this Act.
(5) The
Tribunal may, on matters within its jurisdiction under this Act, make binding
declarations of right whether or not any consequential relief is or could be
claimed.
(6) The
Tribunal may, in the exercise of its jurisdiction under this Act, make
ancillary or incidental orders.
(1) If
the Tribunal is satisfied, on application by a park owner, that there is a risk
that a resident or a person permitted on rented property by a resident may
cause serious damage to property or personal injury, the Tribunal may make an
order (a restraining order) restraining the resident and other
persons on the rented property from engaging in conduct of a kind described in
the order.
(2) An
application for a restraining order may be made without notice to the persons
against whom the order is sought but, if the order is made without giving them
a reasonable opportunity to respond to the allegations against them, the
Tribunal must allow them a reasonable opportunity to satisfy it that the order
should not continue in operation.
(3) A person must not contravene a restraining
order.
Maximum penalty: Imprisonment for 1 year.
120—Conditional and alternative orders
(1) The
Tribunal may make orders under this Act on conditions the Tribunal considers
appropriate.
(2) The
Tribunal may make orders under this Act in the alternative so that a particular
order takes effect, or does not take effect, according to whether stipulated
conditions are complied with.
(1) An
order of the Tribunal under this Act may be registered in the appropriate court
and enforced as an order of that court.
(2) A person who contravenes an order of the
Tribunal under this Act (other than an order for the payment of money) is
guilty of an offence.
Maximum penalty: $10 000.
(3) In this section—
appropriate court means—
(a) if
the order of the Tribunal is for a monetary amount above the jurisdictional
limit of the Magistrates Court for a monetary claim founded on contract—the
District Court;
(b) in
any other case—the Magistrates Court.
122—Application to vary or set aside order
(1) A
party to proceedings before the Tribunal under this Act may apply to the
Tribunal for an order varying or setting aside an order made in the proceedings.
(2) An
application to vary or set aside an order must be made within 3 months of the
making of the order (unless the Tribunal allows an extension of time).
The Governor may, by regulation, provide that
in proceedings of a prescribed class the Tribunal will not award costs unless—
(a) all
parties to the proceedings were represented by legal practitioners; or
(b) the
Tribunal is of the opinion that there are special circumstances justifying an
award of costs.
Division 8—Obligation to give reasons for decisions
The Tribunal must, if asked by a person affected by a decision or
order under this Act, state in writing the reasons for its decision or order.
Division 9—Reservation of questions of law and appeals
125—Reservation of questions of law
(1) The
Tribunal may reserve a question of law arising in proceedings under this Act
for determination by the Supreme Court.
(2) If
a question of law is reserved, the Supreme Court may decide the question and
make consequential orders and directions appropriate to the circumstances of
the case.
(1) An
appeal lies to the Administrative and Disciplinary Division of the District
Court from a decision or order of the Tribunal made in the exercise (or
purported exercise) of its powers under this Act.
(2) The
appeal must be commenced within 1 month of the decision or order appealed
against unless the District Court allows an extension of time.
(3) If
the reasons of the Tribunal are not given in writing at the time of making a
decision or order under this Act and the appellant then requests the Tribunal
to state its reasons in writing, the time for commencing the appeal runs from
the time when the appellant receives the written statement of the reasons.
Division 10—Representation in proceedings before Tribunal
127—Representation in proceedings before Tribunal
(1) A
party to a residential park dispute may only be represented in proceedings
before the Tribunal under this Act as allowed by this section.
(2) A party to a residential park dispute may
be represented by a lawyer if—
(a) all
parties to the proceedings agree to the representation and the Tribunal is
satisfied that it will not unfairly disadvantage a party who does not have a
professional representative; or
(b) the
Tribunal is satisfied that the party is unable to present the party's case
properly without assistance; or
(c) another
party to the dispute is a lawyer, or is represented by a professional
representative; or
(d) the
Commissioner has intervened in, or is a party to, the proceedings.
(3) A party to a residential park dispute may
be represented by a person who is not a lawyer if—
(a) the
party is a body corporate and the representative is an officer or employee of
the body corporate; or
(b) all
parties to the proceedings agree to the representation and the Tribunal is
satisfied that it will not unfairly disadvantage an unrepresented party; or
(c) the
Tribunal is satisfied that the party is unable to present the party's case
properly without assistance.
(4) In this section—
professional representative means a lawyer, a law clerk, or a person
who holds or has held legal qualifications under the law of the State or
another place.
128—Entry and inspection of property
(1) The
Tribunal may enter land or a building and carry out an inspection the Tribunal
considers relevant to a proceeding before the Tribunal under this Act.
(2) The
Tribunal may authorise a person to enter land or a building and carry out an
inspection the Tribunal considers relevant to a proceeding before the Tribunal
under this Act.
(3) A
person who obstructs the Tribunal, or a person authorised by the Tribunal, in
exercising a power of entry or inspection under this section commits a contempt
of the Tribunal.
A person who—
(a) interrupts
the proceedings of the Tribunal under this Act or misbehaves before the
Tribunal in such proceedings; or
(b) insults
the Tribunal or an officer of the Tribunal acting in the exercise of official
functions under this Act; or
(c) refuses,
in the face of the Tribunal, to obey a direction of the Tribunal under this
Act,
is guilty of a contempt of the Tribunal.
(1) The Tribunal may punish a contempt as
follows:
(a) it
may impose a fine not exceeding $2 000; or
(b) it
may commit to prison until the contempt is purged subject to a limit (not
exceeding 6 months) to be fixed by the Tribunal at the time of making the order
for commitment.
(2) The
powers conferred by this section may only be exercised by a member of the
Tribunal who is legally qualified.
(1) The
Governor may, by regulation, prescribe and provide for the payment of fees in
relation to proceedings in the Tribunal under this Act.
(2) The
registrar may remit or reduce a fee if the party by whom the fee is payable is
suffering financial hardship, or for any other proper reason.
(1) The Governor may, by regulation—
(a) prescribe
matters relevant to the practice and procedures of the Tribunal under this Act;
and
(b) provide
for the service of any process, notice or other document relevant to
proceedings before the Tribunal under this Act (including circumstances where
substituted service in accordance with the regulations or an order of the
Tribunal will constitute due service); and
(c) deal
with other matters necessary for the effective and efficient operation of the
Tribunal.
(2) The
Presiding Member of the Tribunal may make Rules of the Tribunal relevant to the
practice and procedure of the Tribunal under this Act, or to assist in the
effective and efficient operation of the Tribunal, insofar as those matters are
not dealt with by the regulations.
(3) Rules
of the Tribunal take effect as from the date of publication in the Gazette or a
later date specified in the rules.
(4) The
Subordinate Legislation Act 1978 does not apply to Rules of the
Tribunal.
Part 11—Commissioner for Consumer Affairs and
administration of Act
The Commissioner is responsible for the administration of this
Act.
134—Ministerial control of administration
The Commissioner is, in the administration of this Act, subject to
control and direction by the Minister.
The Commissioner has the following
functions:
(a) investigating
and researching matters affecting the interests of parties to residential park
agreements;
(b) publishing
reports and information on subjects of interest to the parties to residential
park agreements;
(c) giving
advice (to an appropriate extent) on the provisions of this Act and other
subjects of interest to the parties to residential park agreements;
(d) investigating
suspected infringements of this Act and taking appropriate action to enforce
the Act;
(e) making
reports to the Minister on questions referred to the Commissioner by the
Minister and other questions of importance affecting the administration of this
Act.
No liability attaches to the Commissioner, or any other person
acting in the administration of this Act, for an honest act or omission in the
exercise or purported exercise of functions under this Act.
(1) The
Commissioner must, on or before 31 October in each year, prepare and forward to
the Minister a report on the administration of this Act for the year ending on
the preceding 30 June.
(2) The
Minister must, within 6 sitting days after receiving a report under this
section, have copies of the report laid before both Houses of Parliament.
(1) An
agreement or arrangement that is inconsistent with this Act or purports to
exclude, modify or restrict the operation of this Act, is (unless the
inconsistency, exclusion, modification or restriction is expressly permitted
under this Act) to that extent void.
(2) A
purported waiver of a right under this Act is void.
(3) A person who enters into an agreement or
arrangement to defeat, evade or prevent the operation of this Act (directly or
indirectly) is guilty of an offence.
Maximum penalty: $10 000.
139—Notice by park owner not waived by acceptance of rent
A demand for, any proceeding for the recovery of, or acceptance
of, rent by a park owner after the park owner has notice of a breach of the
agreement by the resident or has given the resident notice of termination under
this Act does not operate as a waiver of the breach or the notice.
(1) The
Tribunal may, on application by an interested person, if the Tribunal considers
it necessary or desirable in the circumstances, order that a provision of this
Act will not apply in relation to an agreement or prospective agreement or to
particular rented property, or will apply in a modified manner (and the order
will have effect accordingly).
(2) An
order may be made on conditions that the Tribunal considers appropriate.
(3) A
person must not contravene a condition to an order.
(1) A notice or document required or authorised
to be given to a person under this Act may be—
(a) given
to the person, or an agent of the person, personally; or
(b) sent
by post addressed to the person, or an agent of the person, at the last known
place of residence, employment or business of the person or agent; or
(c) left
in a letterbox or other place where it is likely to come to the attention of
the person, or an agent of the person, at the last known place of residence,
employment or business.
(2) If
the whereabouts of a person is unknown, the notice or document may be given by
publishing it in a newspaper circulating generally throughout the State.
(3) If
two or more persons are the park owners or residents under a residential park
agreement, a notice or other document is duly given if given to any one of
them.
(1) The
Governor may make such regulations as are contemplated by, or necessary or
expedient for the purposes of, this Act.
(2) The regulations may—
(a) be
of general or limited application; and
(b) provide
that a matter or thing is to be determined, dispensed with or regulated by the
Minister; and
(c) impose
penalties, not exceeding $2 500, for offences against the regulations; and
(d) fix
expiation fees, not exceeding $210, for alleged offences against the
regulations.
Schedule 1—Transitional provisions
1—Application to existing residential park agreements
This Act applies to a residential park agreement whether the
agreement was entered into before or after the commencement of this clause.
2—Application to existing park rules
Part 2 applies to rules that—
(a) have
been made by the park owner of a residential park; and
(b) are
binding on residents of the park under the terms of the residential park
agreements to which the park owner and the residents are parties,
whether the rules were made before or after the commencement of
this clause.
The Minister may, by notice published in
the Gazette, grant an exemption (which may be conditional or unconditional)
from the application of this Act, or specified provisions of this Act, in
relation to—
(a) agreements
entered into before the commencement of this clause; or
(b) a
specified agreement, or class of agreements, entered into before the
commencement of this clause; or
(c) rules
(to which clause 2 applies) made before the commencement of this clause;
or
(d) a
specified rule, or class of rules, (to which clause 2 applies) made before
the commencement of this clause.
4—Existing residential park agreements need not comply with formal requirements
A residential park agreement in force at the commencement of this
clause need not be in writing nor comply with any other requirement of
section 10.
5—Existing bond to be paid to Commissioner
A person who holds any amount by way of a
bond at the commencement of this clause must pay the amount of the bond to the
Commissioner within 7 days after that commencement.
Maximum penalty: $1 250.
Expiation fee: $160.
Schedule 2—Amendment of Residential Tenancies
Act 1995
1—Amendment of Residential Tenancies Act 1995
Residential Tenancies Act 1995, section 5(1)—after paragraph (a) insert:
(ab) an agreement to which the Residential Parks Act 2006 applies; or