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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
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—acquisition of park or site
49 Residential park site
agreement—acquisition of park or site
Part 7—Residential park site agreement—sale of
dwelling on-site
50 Residential park site agreement—sale of
dwelling on-site
Part 8—Sub-tenancy agreements
51 Sub-tenancy
agreements
Part 9—Termination of residential park
agreements
Division 1—Termination
generally
52 Termination of residential park agreement
53 Agreement
for fixed term continues if not terminated
54 Termination of agreement for
periodic tenancy
55 Limitation of right to terminate
Division 2—Residential park tenancy
agreements—termination by parties
Subdivision 1—Termination by park owners
56 Termination for breach
of agreement
57 Termination where successive breaches of
agreement
58 Termination where serious misconduct by
resident
59 Termination where periodic tenancy and sale of rented
property
60 Termination where periodic tenancy and no specified ground of
termination
61 Termination at end of fixed term
62 Termination where
agreement frustrated
Subdivision 2—Termination by residents
63 Termination for breach
of agreement
64 Termination where successive breaches of
agreement
65 Termination where periodic tenancy and no specified ground of
termination
66 Termination at end of fixed term
67 Termination where
agreement frustrated
Division 3—Residential park site
agreements—termination by parties
Subdivision 1—Termination by park owners
68 Termination for breach
of agreement
69 Termination where successive breaches of
agreement
70 Termination where serious misconduct by
resident
71 Termination where periodic tenancy and no specified ground of
termination
72 Termination at end of fixed term
73 Termination where
agreement frustrated
Subdivision 2—Termination by residents
74 Termination for breach
of agreement
75 Termination where successive breaches of
agreement
76 Termination where periodic tenancy and no specified ground of
termination
77 Termination at end of fixed term
78 Termination where
agreement frustrated
Division 4—Termination by
Tribunal
79 Termination on application by park owner
80 Termination
on application by resident
81 Termination based on hardship
Division 5—Form of notices of
termination
82 Form of notice of termination
Division 6—Repossession of rented
property
83 Order for possession
84 Abandonment of rented
property
85 Repossession of rented property
86 Forfeiture of head tenancy
not to automatically end agreement
Division 7—Enforcement of orders for
possession
87 Enforcement of orders for possession
Division 8—Retaliatory action by park
owner
88 Retaliatory action by park owner
Division 9—Resident to give forwarding
address
89 Resident to give forwarding address
Division 10—Abandoned property
90 Abandoned
property
91 Offence to deal with abandoned property in unauthorised
way
92 Action to deal with abandoned property other than personal
documents
93 Action to deal with abandoned personal documents
94 Action to
deal with abandoned dwellings or prescribed items
Part 10—Serious acts of violence
95 Park
owner may give person notice to leave for serious act of
violence
96 Suspension of agreement
97 Period of suspension
98 Entry to
park prohibited during suspension
99 Park owner may make urgent application
to Tribunal
100 Occupation of rented property pending application or
hearing
Part 11—Residential Tenancies
Tribunal
Division 1—Role of registrars and
magistrates
101 Registrars may exercise jurisdiction in certain
cases
102 Magistrates may exercise jurisdiction in certain cases
Division 2—Proceedings before
Tribunal
103 Constitution of Tribunal
104 Duty to act
expeditiously
Division 3—Tribunal's
jurisdiction
105 Jurisdiction of Tribunal
106 Application to
Tribunal
Division
4—Mediation
107 Mediators
108 Referral of applications to
mediation
109 Mediator to notify parties
110 Duties of
mediators
111 Procedure
112 Representation of parties in
mediation
113 Restriction on evidence
Division 5—Intervention by
Commissioner
114 Power to intervene
Division 6—Evidentiary and procedural
powers
115 Tribunal's powers to gather evidence
116 Procedural
powers of Tribunal
117 General powers of Tribunal to cure
irregularities
Division 7—Judgments and orders
118 General
powers of Tribunal to resolve disputes
119 Special powers to make orders and
give relief
120 Restraining orders
121 Conditional and alternative
orders
122 Enforcement of orders
123 Application to vary or set aside
order
124 Costs
Division 8—Obligation to give reasons for
decisions
125 Reasons for decisions
Division 9—Reservation of questions of law and
appeals
126 Reservation of questions of law
127 Appeals
Division 10—Representation in proceedings before
Tribunal
128 Representation in proceedings before Tribunal
Division 11—Miscellaneous
129 Entry and
inspection of property
130 Contempt of Tribunal
131 Punishment of
contempt
132 Fees
133 Procedural rules
Part 12—Commissioner for Consumer Affairs and
administration of Act
134 Administration of Act
135 Ministerial
control of administration
136 Commissioner's functions
137 Immunity from
liability
138 Annual report
Part 13—Miscellaneous
139 Contract to avoid
Act
140 Notice by park owner not waived by acceptance of
rent
141 Exemptions
142 Service
143 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 South Australia enacts as
follows:
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 9 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 successor in title to the park (or
rented property) whose title is subject to a resident's interest and a
prospective park owner and a former park owner;
Note—
Part 8 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
8;
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, or refused to consent, 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—acquisition of park or site
49—Residential
park site agreement—acquisition of park or site
(1) This section applies if—
(a) title to all or part of the land within a residential park is acquired
from the park owner by a person (the new owner); and
(b) the land acquired includes land on which a person has installed a
dwelling under a residential park site agreement for a term exceeding 12 months;
and
(c) but for this section, the new owner's title would not be subject to
the resident's interest under the residential park site agreement.
(2) Notwithstanding the provisions of the Real Property
Act 1886, the new owner's title to the land is subject to the
resident's interest under the residential park site agreement.
(3) The new owner may, however, by notice of termination given to the
resident, terminate the residential park site agreement without specifying a
ground of termination.
(4) A notice of termination by the new owner must—
(a) be given to the resident within 14 days after the date of the new
owner's acquisition of title to the land; and
(b) specify the day on which the agreement is terminated which must not be
earlier than whichever is the earlier of—
(i) the end of the term of the agreement as fixed by the agreement;
and
(ii) 12 months from the date of the new owner's acquisition of title to
the land.
(5) If the new owner gives notice of termination to the resident under
this section, the resident is not necessarily bound by the residential park site
agreement until it terminates as a result of that notice, but may, by notice of
termination given to the new owner, terminate the agreement without specifying a
ground of termination.
(6) The period of the resident's notice to the new owner must be at least
28 days.
(7) A notice under this section must comply with the requirements of Part
9 Division 5 as to the form of a notice of termination and, in the case of a
notice given by the new owner, include any further information required by the
Commissioner.
(8) A notice terminating a residential park site agreement under this
section is not ineffectual because the day on which the agreement is to end is
not the last day of the term of the agreement as fixed by the
agreement.
Part 7—Residential
park site agreement—sale of dwelling on-site
50—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
9—Termination of residential park agreements
Division
1—Termination generally
52—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.
53—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.
54—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.
55—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
56—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.
57—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 56 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.
58—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.
59—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.
60—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).
61—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.
62—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
63—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.
64—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 63
in respect of each of those breaches.
(2) The period of notice given under this section must be at least 14
days.
65—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).
66—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.
67—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
68—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.
69—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 68 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.
70—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.
71—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.
72—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.
73—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
74—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.
75—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 74
in respect of each of those breaches.
(2) The period of notice given under this section must be at least 14
days.
76—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).
77—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.
78—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
79—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.
80—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.
81—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
82—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).
84—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.
85—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.
86—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
87—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
88—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
89—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.
91—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.
92—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 94 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.
93—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 94 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.
94—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 92 and 93 apply in relation to the abandoned
property, but in the application of section 92 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 10—Serious
acts of violence
95—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 99, 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 99, until the Tribunal
has heard and determined the application.
98—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.
99—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.
100—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
11—Residential Tenancies Tribunal
Division 1—Role
of registrars and magistrates
101—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.
102—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.
108—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.
109—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.
112—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
115—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.
116—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.
117—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
118—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.
119—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.
121—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.
123—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
126—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
128—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.
129—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
12—Commissioner for Consumer Affairs and administration of
Act
The Commissioner is responsible for the administration of this
Act.
135—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.
140—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