The Community Law Reform Committee of the Australian Capital Territory
is currently undertaking a Reference on Residential Tenancy Law
in the ACT, issued by the ACT Attorney-General in September 1990.
A copy of this Reference is Attachment 1. As part of this reform
process, the Committee published Report No.8 - "Private
Residential Tenancy Law" - in December 1994 and is currently
preparing new residential tenancy legislation, covering private
residential tenancies, for consideration by the ACT Government
and the ACT Legislative Assembly.
The Committee has already formed the view that people who have
their permanent place of residence in caravan parks and relocatable
homes should have protection of basic rights to accommodation
through legislation. The Committee considers, however, that further
information, particularly from park residents and park managers,
is required before the appropriate form of such legislation can
be determined.
Accordingly, the Committee invites submissions and comments on
the issues surrounding permanent residence in caravans and relocatable
homes in the ACT. To facilitate this, the Committee has adopted
the following consultation process, which will be overseen by
its Residential Tenancy Sub-Committee:
Contributions to the consultation process should be made before
15 April 1995.
The Community Law Reform Committee, in its Report No.8 Private
Residential Tenancy Law, discussed legislative coverage of
caravan parks and relocatable homes in the following terms:
Caravans and Relocatable Dwellings in Caravan Parks
59. The 1991 ABS Census of Population and Housing states that at the time of the census there were 164,039 people living in caravans or other livable dwellings in caravan parks throughout Australia, which population represents one per cent of the total population [1991 ABS Census of Population and Housing]. The number of caravans or other livable dwelling were 87,527. In the ACT, at the time of the census, there were 395 people living in caravan parks. There are four caravan parks in the ACT which provide accommodation for a significant number of long stay or long term residence. One of these parks, the Long Stay Caravan Park at Narrabundah, is operated by the ACT Housing Trust.
60. The Landlord and Tenant Act has a limited application to caravans and movable dwellings [s62AA(2)]. The provisions of the Act concerning rental bonds applies to the leasing of a caravan, caravan site, caravan attached to a caravan site, and movable dwellings. The Act therefore arguably applies to a resident of a caravan park where that resident has leased a caravan site, a caravan attached to a caravan site, or simply a caravan. It is possible to lease a caravan unattached to a site just as it is possible to lease a television or a car. However, a tenancy can only arise if there is a lease of an area of land or something fixed to an area of land. It is therefore arguable that the Landlord and Tenant Act would not apply to the leasing of a caravan alone without a designated site. The application of the Landlord and Tenant Act to all caravans is arguably problematical.
61. One submission [Anonymous 1 (Caravans and Relocatable Homes)] emphasised that caravan parks involve particular issues concerning the communal nature of living arrangement and in particular rule of the park concerning management of surrounds, security, years of amenities, entrance and connection fees privacy considerations and inspections.
62. There are clearly particular issues and requirements which apply to caravan park accommodation. One submission [BK Aldridge, Southside Motor Park] from a caravan park proprietor emphasises that residents of a caravan park, unlike residents of a house or a flat, usually intend to, and often do, stay on a temporary basis.
Patrons of [caravan] parks are by nature much more mobile than housing or flat tenants. Patrons who become long stay patrons do not usually commence their tenancy with the object of becoming long stay patrons. They tend to be itinerant workers or unemployed people looking for work. They come to Canberra on contract work (eg. laying carpet at Parliament House, shearing, painting, etc.).
Whether they stay or move depends on the availability of work or the weather or the season. We lose many patrons at the beginning of Winter and have them return in the Spring. Many leave in December and return in February. Some stay while waiting to move into a house or flat. Some are on temporary positions with the Defence Forces etc.
63. This submission stated that if legislation were to apply to caravan parks then the legislation must take account of the mobility of residents and the fact that many residents who do become long stay residents do so on an unplanned basis and may wish to leave at very short notice.
64. The Committee considers that in principle people who have their permanent place of residence in caravan parks should, like other residents, have protection of basic rights to accommodation through legislation. However, further consultation is necessary to assist the Committee to prepare final recommendations on this and related issues.
Recommendation 6: Extend the period of consultation
to determine the necessity of legislation to provide appropriate
protection for residents of caravan parks.
The two submissions mentioned in the above extract are reproduced
in Appendix 2.
The existence of long-term residency in caravan parks throughout
Australia is significant and growing. Between 1981 and 1985 long-term
residency increased by 53%, and between 1986 to 1989 it increased
by 52% (National Housing Strategy 1992:58).
The 1986 National Census recorded 197,200 persons as living in
96,640 caravans, tents and houseboats throughout Australia. Of
the caravan population, 32% had been in the same dwelling for
five or more years (Department of Health Housing and Community
Services 1992:13).
The 1991 Census recorded 164,080 people living in 87,527 caravans
in caravan parks, and a total of 196,691 people living in 103,717
caravans, houseboats and like dwellings. Of the caravans located
in caravan parks, 44,939 (51.4%) were owner-occupied and 26,944
(30.8%) were rented; the ownership status of balance was not stated
or inadequately described. The 1991 Census also recorded weekly
rent levels for caravans in caravan parks: $0-$47: 12.7%; $48-$77:
38.2%; $78-$107: 23.7%; $108-$137: 9.2%; $138+: 16.2%.
The size of the caravan park sector varies from State to State,
with Queensland and New South Wales (particularly the Central
Coast and Hunter regions) playing the major role and the Northern
Territory having the highest proportion of its population in Parks;
see Table 1.
Table 1:
Caravan Park Residents - 1991 Census
| State | Population in all
private dwellings | % of total
population | Population in caravans | Population
in caravans ( % ) | People in caravans per 1,000 population |
| NSW | 5,539,300 | 34.0 | 47,648 | .8 | 8.6 |
| VIC | 4,124,700 | 25.4 | 15,613 | .3 | 3.8 |
| QLD | 2,846,200 | 17.5 | 61,336 | 2.2 | 21.6 |
| SA | 1,358,200 | 8.4 | 6,927 | .5 | 5.1 |
| WA | 1,523,800 | 9.4 | 21,134 | 1.4 | 13.9 |
| TAS | 439,100 | 2.7 | 1,143 | 0.3 | 2.6 |
| NT | 160,100 | 1.0 | 9,489 | 5.9 | 59.3 |
| ACT | 268,700 | 1.6 | 790 | 0.3 | 2.9 |
| TOTAL | 16,260,000 | 100 | 164,080 | 10.1 |
(based on 1991 Census: Basic Community Profile: Table
B46)
In all States and Territories, legislation regulates the design,
facilities and standards of caravan parks and may also set construction
standards for movable dwellings. Local government by-laws also
usually set constraints on the area of the park, site sizes, parking,
access, etc. However, only a few States have legislated in respect
of the tenancy relationship between park owners and residents,
in such matters as tenants' rights and obligations, security of
tenure, park rules, fees and charges and rent increases.
A distinction of considerable importance, both in the nature of
park operations and in the appropriate legislative regime, can
be drawn between caravans and dwellings of a more permanent nature
which are placed in parks by an owner-occupier on a long-term
basis. The second group is variously described in the industry
and in legislation as relocatable homes, mobile homes and manufactured
homes and is now tending to attract specific legislative provisions
protecting security of tenure because of the very high cost of
relocation. These provisions in some cases also extend to caravans
with rigid annexes.
The residential tenancy legislation covering caravans and relocatable
homes in each State and Territory is summarised in Table 2 and
discussed below. The Commonwealth has no relevant legislation.
Table 2: Residential Tenancy Legislation Affecting
Caravans and Relocatable Homes
| s7, Residential Tenancies Act 1987 applies to movable dwellings & sites;
Caravan and Relocatable Home Park Industry Code of Practice Regulation 1992 | Caravan Parks and Movable Dwellings Act 1988 covers caravans;
Caravan Parks and Movable Dwellings (Registration and Standards) Regulations 1993 | Residential Tenancies Act 1978 covers some longer term renters in caravan parks; no coverage where a person lives in their own caravan in a Park | Residential Tenancies Act 1987 applies to caravans, but there is uncertainty as to the extent of coverage |
| Residential Tenancies Act 1994 covers caravans;
Mobile Homes Act 1989 covers owner-occupied relocatable homes. | Landlord and Tenant Act 1949 only regulates bond lodgment. | Tenancy Act 1979 covers caravans, but tourist premises and short-term tenants are excluded. | No relevant legislation |
Caravans and relocatable homes have been covered by the Residential
Tenancies Act 1987 since its commencement in 1989. Since 30
March 1992, caravan parks and manufactured homes estates have
also been covered by a mandatory Code of Practice, the Caravan
and Relocatable Home Park Industry Code of Practice 1992,
made under the Fair Trading Act 1987. The Residential
Tenancies Regulations 1989 include, as Schedule 2, a Standard
Form Residential Tenancy Agreement for Movable Dwellings or Movable
Dwelling Sites. A second Standard Form Agreement for cases where
the term exceeds three years was included as Schedule 2A by an
amendment to the Regulations on 6 September 1993.
The issues surrounding permanent living in caravan parks and manufactured
home estates continue to be the focus of policy work and consultation
processes in New South Wales, resulting, in November 1994, in
the passage of the Residential Tenancies (Caravan Parks and
Manufactured Home Estates) Amendment Act 1994. This Act amended
the Residential Tenancies Act 1987 to provide greater security
of tenure for park residents, particularly for relocatable homes
and caravans with a rigid annex.
Caravan parks and relocatable homes in Victoria are covered by the Caravan Parks and Movable Dwellings Act 1988 which commenced on 15 February 1989. The Act provides a reasonably comprehensive scheme regulating the rights and obligations of park owners and residents including provisions in respect of:
There is, however, a threshold qualification for coverage by the
Act whereby, in order to be covered by the Act, a person must
occupy a site or sites in a Park as "his or her only or main
residence" for a period of 90 days (s3(4)), or earlier with
the owner's prior written consent (s3(3)).
The Caravan Parks and Movable Dwellings (Registration and Standards)
Regulations 1993 establishes registration requirements for
Parks and sets down construction and site standards. A Caravan
Park Referees Board has jurisdiction to exempt or modify a regulation
applying to a Park.
There is very limited coverage of caravans under the Residential
Tenancies Act 1978 - coverage will be found only where the
premises are affixed to the land.
In April 1991, the Caravan Parks Working Party prepared a Report
to Cabinet on the Role of Mobile Homes and Caravan Parks in South
Australia. The Working Party, which comprised government,
industry and community representatives, recommended the preparation
of "specific legislation to enhance and regulate the tenancy
and occupancy relationship between Park owners and non-tourist
residents". Any new legislation should "largely mirror
the rights, obligations and principles which currently exist for
landlords and tenants under the Residential Tenancies Act 1978
- with some modifications to take into account the special circumstances
which exist with this form of housing" (Caravan Parks Working
Party 1991:9). The Report also addressed issues such as improving
park location, reducing financing costs, and conferral of exclusive
jurisdiction in relation to caravan parks on the Residential Tenancies
Tribunal.
There has not yet been a legislative response to the Report, however
the policy issues involved are still under consideration.
In Western Australia, approximately 10,000 people live permanently
in caravan parks, occupying approximately 21% of all caravan bays
in use at any one time (Tenants Advice Service 1991:93).
The Residential Tenancies Act 1987 does not exclude caravans
and home park tenancies, however decisions by magistrates in the
Small Disputes Division suggest that coverage extends only to
people who rent both the caravan and the site. In the absence
of Supreme Court authority, the extent of coverage of caravans
under the Act will remain uncertain. Difficulties have also arisen
because the Act does not include specific provisions for those
matters where caravan tenancies are different from those involving
houses or flats.
In relation to caravans, a Review of the Residential Tenancies
Act several years ago recommended that some park specific tenancy
provisions should be included in the Act, including a standard
tenancy agreement and regulation of fees and access. It also proposed
that a threshold period of 30 days should be imposed (Ministry
of Consumer Affairs 1992:81, 82). In their submission to the Review,
the Tenants' Advice Service (TAS) had argued for new specific
legislation covering caravan parks (Tenants' Advice Service 1991:89-94);
however, in a later response to the Review, TAS apparently accepted
the recommendation that coverage by the Residential Tenancies
Act be extended to caravans. In this response, TAS was primarily
concerned about the lack of clarity in the Report's recommendations
about a 30 day threshold period (Tenants' Advice Service 1992:18).
A new Residential Tenancies Act 1994, which commenced on
3 April 1995, established a new legislative regime in Queensland
for private residential tenancies and caravan park residents.
The extent of legislative protection for caravan park residents
is, however, substantially reduced where there is a "short
tenancy", one where there is an intention by both parties
that the tenant's occupation of the dwelling will not continue
for more than 30 days.
Residential tenancy disputes are not be heard by a specialist
Residential Tenancies Tribunal, rather they are streamed into
a mediation conference organised by the Residential Tenancies
Authority, using mediators accredited by the Community Justice
Centres. If there is no resolution through mediation, disputes
are litigated in the Smalls Claims Tribunal, which is administered
by the Magistrates Court.
There is also a Mobile Homes Act 1989, which applies to
relocatable homes which are owned by the occupiers. The Mobile
Homes Act 1989 regulates the terms of the contract between
site owner and home owner, and also gives considerable security
of tenure to home owners as evictions may be sought for cause
only, and must be made by order of the Small Claims Tribunal,
upon that Tribunal being satisfied that the eviction is reasonable
and just in the circumstances.
The Landlord and Tenant Act 1949 excludes coverage of caravans
(except for bond lodgement provisions). However, a long-stay caravan
site administered by the ACT Housing Trust is covered by the Long
Stay Caravan Park Housing Assistance Program gazetted under
the Housing Assistance Act 1987 (ACT). The Program gives
certain rights in relation to site allocation, transfers and frequency
of rent increases.
As discussed in a subsequent section of this Paper, the Community
Law Reform Committee has recommended that residential tenancy
legislation should cover caravan park residents.
The Tenancy Act 1979 expressly includes caravans in its coverage by defining "premises" in s4(1) as including:
(b) caravans and demountable buildings leased for
residential purposes;
(c) the land ... upon which a caravan or demountable building
is sited;
However, in practice, this coverage applies primarily to rented
caravans placed in the backyard of private residences - a very
common practice in Darwin in the years following Cyclone Tracy.
Caravans and relocatable homes placed in caravan parks are excluded
from coverage by paragraph (g) of the definition of premises which
excludes "premises used in the tourist industry".
Site requirements and standards for caravan parks are regulated
by the Caravan Parks Act 1975. This Act does not create
any rights for residents, although it does establish a compliance
regime in respect of caravan standards, cleaning of shared facilities,
etc.
Residential tenancy law has been under review by a Working Group
appointed by the Attorney-General in 1990. The Working Group produced
a Discussion Paper in October 1992 and a Report in November 1993.
The Report recommends a comprehensive overhaul of the current
Tenancy Act 1979, covering both residential and commercial
tenancies.
The Review Report did not consider caravan issues in any detail,
but it did make a recommendation that the scope of the residential
tenancy legislation be broadened to clearly embrace the permanent
residents of caravan parks, mobile and transportable homes, and
that, in developing the legislation, adequate regard is paid to
the force of house rules and other group living practices (Working
Group to Review the Tenancy Act 1993:30).
The Report is currently before the Northern Territory Cabinet.
The existing Landlord and Tenant Act 1935 has no relevance
to caravan park residents both because its application is limited
to tenants, thus excluding licensees, and because its provisions,
in any case, are very limited in their scope. A 1994 Consumer
Affairs Advisory Committee Consultation Paper on new residential
tenancy laws did not canvas any issues relating to caravan park
residents.
[This section of the Discussion Paper has been substantially
extracted from Chapter 3 of the Commonwealth Report: Minimum
Legislative Standards for Residential Tenancies in Australia.]
In its Report No. 8: Private Residential Tenancies,
the Community Law Reform Committee made detailed proposals for
new legislation regulating private tenancies in the Australian
Capital Territory. A summary of these proposed legislative standards
is set out in this section of the Consultation Paper; reference
should be made to the Report itself for a detailed understanding
of the proposals. Numbers in square brackets in the summary are
references to Recommendations in the Committee's Report.
* ACT Housing Trust;
* boarders and lodgers;
* hotels and motels;
* community housing;
* student accommodation provided by educational institutions;
* clubs;
* caravan parks and relocatable home parks
* retirement villages.
* crisis accommodation;
* bone fide holiday accommodation;
* accommodation for aged and disabled persons which is regulated
by Commonwealth legislation.
* the granting, extension, transfer or renewal of a tenancy or subtenancy;
* vacating of premises;
* obtaining a key to the premises;
* information on the availability of tenancies.
The proposed Residential Tenancies Act will also prohibit any
requirements in association with the above that the applicant
or tenant make any improvements, alterations or repairs of the
premises. [36]
* consumption of water, electricity, gas, telephone services, fuel and other such supplies;
* the establishment cost of a new account for the supply of such
services in the name of the tenant and the fee for reconnection
of these services should they be disconnected as a result of failure
of the tenant to pay for the services or other fault of the tenant.
[38]
* cost of repairs as a result of damage caused by the tenant (not including fair wear and tear);
* loss of rent;
* costs of consumption items (eg. gas, firewood) supplied by the
lessor which the tenant has used and not replaced. [48]
* the lessor or the lessor's immediate relative intends to reside in the premises (4 weeks notice);
* the lessor has a bona fide intention to sell the premises (8 weeks notice);
* the lessor has a bona fide intention to reconstruct the premises or make major repairs or renovations which cannot reasonably be carried out while the tenant is in occupation of the premises (12 weeks notice);
* the lessor granted the tenancy as part of a contract of employment
between the lessor and tenant, the tenant has ceased to be an
employee of the lessor, and the lessor requires the premises for
the accommodation of another employee (4 weeks notice). [150]
The ACT Housing Trust operates the Long Stay Caravan Park at Narrabundah.
This Park is not covered by the existing Landlord and Tenant
Act 1949, but is regulated to some extent by the Long Stay
Caravan Park Housing Assistance Program gazetted under the
Housing Assistance Act 1987 (ACT), which gives certain
rights in relation to site allocation, transfers and frequency
of rent increases.
The Community Law Reform Committee, in principle, supports the
proposal that the ACT Housing Trust, and its tenants, should be
bound by the proposed new Residential Tenancies Act. It will be
necessary, however, for the Trust to have certain exemptions from,
or modifications of, the Act because of the scale of its operations
and the fact that a substantial proportion of its housing provision
is affected by social welfare considerations. Residents of the
Housing Trust Long Stay Caravan Park are invited to make submissions
to the Committee on the issues raised in this Consultation Paper.
However they should be aware that modifications of the general
regime covering private caravan parks may be necessary. Submissions
addressing any special features of the Housing Trust's caravan
park management would be very welcome.
The minimum legislative standards proposed in the Commonwealth
Report, while differing in some details, are broadly similar to
the legislative proposals recommended by the Committee in its
Report No.8. However, while the Committee left open for further
consultation the question of coverage of caravan parks and relocatable
homes, these issues are considered in some depth in the Commonwealth
Report.
The consultants who prepared the Commonwealth Report took the
view that the minimum legislative standards for private residential
tenancies proposed in the Report were, in most cases, appropriate
for caravan parks and relocatable homes. However some variations
in the standards could be justified because of the communal nature
of caravan parks and because of the high costs of relocation,
particularly in respect of relocatable homes.
The Committee concurs in this view and therefore has set out,
in this section of the Consultation Paper, the discussion of variations
contained in Chapter 5 of the Commonwealth Report. The Committee
invites the ACT community to address the appropriateness of these
proposed variations in submissions to the Committee.
It should be noted that the Committee is primarily concerned about
issues arising in respect of permanent residence in caravan parks
and in relocatable homes. The Committee has already concluded
that the legislative regime which it has recommended for private
residential tenancies is entirely appropriate in situations where
tenants live in a caravan sited on private property, for example
in a suburban backyard or on a rural property.
Similar to boarding houses, the consultants can see no rationale for why most provisions of residential tenancies legislation should not have application to caravan and relocatable homes where such accommodation is not being used for holiday purposes. Increasingly, caravan parks are being used for permanent residency. For low income groups, renting a caravan is often more affordable than renting a house or a flat. Similarly, purchase of a relocatable home is often more affordable than other forms of purchase. Caravan parks are also a popular option for retirement living.
There are however, some distinguishing features of park residency which the consultants consider necessitates variations from general tenancy law. The need for variations arises from such circumstances such as the following:
A number of variations to general tenancy law are required to take account of these circumstances. These variations are presented in the following discussions as are several provisions additional to general tenancy law which are considered necessary for caravan and relocatable homes. It should be noted that like the variations for boarding houses, unless a variation is proposed, the minimum legislative standards outlined in relation to general tenancy law should apply to caravan parks.
As with the previous section dealing with standards generally,
commentary is only provided where the variation has changed significantly
from the draft circulated for the consultations or where there
was substantial comment or disagreement between organisations
consulted.
During the consultations many comments were made about appropriate terminology for moveable dwellings. To some extent, terminology for general tenancies varies from State to State, however the range is more diverse in the caravan and relocatable home industry.
In particular, resident organisations and caravan park associations were keen to highlight the differences between caravans and relocatable homes, including the movement away from referring to 'parks' because of the connotations of it being a caravan park.
There is no doubt that in some instances the only obvious common feature is the tenure of the land, and the inability to subdivide. Some dwellings are built or altered with the intention that they will be permanently attached to land, a concept that has been noted with an amendment of the definitions in the Mobile Homes Act 1989 (Qld). That Act, it was pointed out, uses terminology unknown in the Queensland industry, and has caused considerable confusion for park residents and park lessors.
While acknowledging the range of terminology in use across Australia, the consultants have used the terms caravan and relocatable homes to describe the different types of dwellings, and parks to refer property where a number of caravans and/or relocatable homes are located.
While these following provisions act as variations
or additions to the general standards in the previous section,
they will be referred to in the commentary as standards.
Variations to Minimum Legislative Standards for
Caravans and Relocatable Homes
Coverage
1. Legislation to apply to renting of caravans
and relocatable homes and/or sites. Some provisions of general
residential tenancies legislation will not be applicable to owner-occupiers
residing in parks.
Tenancy Agreements
2. Standard terms for tenancy agreements for caravan/relocatable
homes to be prescribed.
Park Rules
3. Provision for Park Rules to be included in
agreements. Breaches of the rules would constitute a breach of
the agreement. The legislation would prescribe those areas about
which rules may be made. Rules which are contrary to the Act would
be void. Park residents may apply to the Residential Tenancies
Tribunal for an order disallowing or varying Park Rules. Prescribed
notice periods for changes to park rules.
Fees & Charges
4. Visitor fees to be on a "user pays" for services and facilities only. Visitor fees not to be applied to dwellings which are self-contained.
5. Limit on boom gate key deposits - deposits to be refundable.
6. Security deposits may be charged for electricity, gas where park lessor supplies these services and where the supply authority requires deposits.
7. Connection fees limited to actual costs incurred.
8. Prohibition on entry/exit fees.
9. Prohibition for fees for site preservation. Park resident to meet reasonable site maintenance requirements.
10. No restrictions on sale of dwellings on site.
Prohibition on compulsory premium paid to park lessor for sale
of dwellings on site. Agency agreements relating to sale of dwellings
on site may be separately entered into. A maximum agency commission
to be prescribed by regulation.
Rights & Duties
11. Duty on owner occupier to keep exterior of dwelling maintained.
12. Access for park lessor to inspect meters.
13 Park lessor to maintain common areas and facilities and provide 24 hour access to certain facilities.
14. Longer storage period required for abandoned caravans and relocatable homes. Storage to be on site where dwelling is a relocatable home or caravan with rigid annexe. Park lessor may claim lost income from rent of the site on which the dwelling is stored from the proceeds of sale of the van or home after the storage period has elapsed.
15. Prohibition of restrictive practices for services to park residents.
16. Right of membership of organisations for park residents
17. Right of park residents to have visitors
Termination & Notice Periods
18. Prescribed grounds required for termination of tenancy of relocatable homes and caravans with rigid annexes (ie. no grounds eviction to be prohibited for these forms of dwellings).
19. Reduced time periods for notice to remedy and notice of termination, including termination by park resident
20. Special provisions, similar to that proposed for boarding houses, permitting temporary removal of a resident from a park where grounds for immediate termination exist
21. Sale of a park not to be a ground for termination, except where the park is to change use. A prescribed notice period for change of use would apply, and should be the same as termination on no grounds ie. 3 months
22. Specific grounds and notice periods required
where park lessor requires the relocation of movable dwellings
within the park. Park lessor to pay costs of re-siting in
prescribed circumstances.
1. Legislation to apply to renting of caravans and relocatable homes and/or sites. Some provisions of general residential tenancies legislation will not be applicable to owner-occupiers residing in parks.
As discussed in the general standards relating to coverage, there was general support for the extension of coverage of residential tenancies legislation to caravan parks. While the consultants propose that residential tenancies legislation in relation to caravan parks should include the general standards or appropriate variations by this section, it is not considered essential that caravan park provisions are included in the same legislation as general tenancies.
A major concern of caravan park associations was whether there should be a qualifying period for park residents to obtain rights under residential tenancies legislation, similar to the 90 day rule in the Caravan and Moveable Dwelling Act 1988 (Vic). In that State, a park resident must have resided in a park for 90 days before they obtain the benefits of the legislation. Caravan park associations generally supported such an approach as being necessary to ensure only park residents that will not cause disruption to the park have coverage. Resident organisations strongly opposed such a provision and commented that it results in park residents being evicted prior to the expiry of the 90 days for little reason other than they might cause trouble.
The consultants do not support the concept of limiting protection
in the initial stages of a tenancy as it does allow an unreasonable
level of discretion to park lessors. Further, the standards as
a whole should adequately deal with behaviour of a park resident
that requires the termination of the agreement. Restriction of
rights in the initial stages of the tenancy should not be confused
with provisions under the general standards, which propose that
holiday lettings be exempt from coverage.
2. Standard terms for tenancy agreements for caravan/relocatable homes to be prescribed.
The draft standards provided for a standard form of agreement
to be prescribed. For reasons set out in the commentary on general
standards relating to Tenancy Agreements the requirement for standard
agreements was revised to provide for standard terms to be prescribed.
Standard terms for caravan/relocatable home parks will need to
reflect variations from those applicable to general tenancies,
as discussed in this section.
3. Provision for Park Rules to be included in agreements. Breaches of the rules would constitute a breach of the agreement. The legislation would prescribe those areas about which rules may be made. Rules which are contrary to the Act would be void. Park residents may apply to the Residential Tenancies Tribunal for an order disallowing or varying Park Rules. Prescribed notice periods for changes to park rules.
Resident organisations expressed concern at the current arrangements in NSW which are similar to the above standard. In particular, there have been problems with the establishment of park disputes committees and how representation on them is decided. These committees deal with objections to changes to park rules. Some resident organisations argued that it would be more beneficial for the committees to be involved in the formulation of the changes and rules generally than simply trying to resolve disputes. Other resident organisations support standard rules that require approval of a statutory officer to change.
Other concerns related to the minimum number of park residents required to challenge a park rule. In NSW the current level of 5 park residents is seen as too restrictive as often park residents feel intimidated by park lessors and will not dispute the change.
Caravan park associations were generally accepting of the standard,
although there were some concerns that prescribed notice periods
for changes may need to vary depending on the type of rule.
4. Visitor fees to be on a "user pays" for services and facilities only. Visitor fees not to be applied to dwellings which are self-contained.
The draft standard did not restrict visitor fees being applied to self contained dwellings.
In the consultations, caravan park associations, representing park lessors, expressed concern about the practicalities of such a standard when pools and other common facilities were not under lock and key, and the actual cost of individual use was difficult to estimate. Further, it was argued that even if dwellings were self contained, visitors would be using or benefiting from services provided by the park eg. water and sewerage where not separately metered, pools and other recreational facilities, and management.
Resident organisations on the other hand, supported the proposed standard citing examples of elderly people in relocatable homes not being able to afford having their family come and stay in their self contained dwelling if visitor fees were charged.
The NSW Government has recently decided to amend the regulations and prevent visitor fees being charged other than for user pays facilities (Ministry of Housing, Planning & Urban Affairs 1994:10).
The consultants consider that where dwellings are self-contained
it is not appropriate for park residents to be charged visitor
fees. Where dwellings are not self-contained, visitor fees should
only be charged for the use of services such as toilet, showers
and recreational facilities. The principle should be that fees
cover the increased costs to the park lessor of the visitors being
on site and should not become a restrictive fee which reduces
the park resident's rights to enjoy the dwelling in the same way
as general tenancies.
5. Limit on boom gate key deposits - deposits to be refundable.
There was general support for the standard.
One resident organisation commented that it was important that
limits were continually reviewed, considering the changes to boom
gates used. For instance, some boom gates use electronic keys
which can cost significantly more than the present general deposit
of $15 in NSW.
6. Security deposits may be charged for electricity, gas where park lessor supplies these services and where the supply authority requires deposits.
While there was some opposition to this standard, resident organisations generally supported it but expressed a number of concerns including:
Caravan park associations argued however, that the park lessor was liable for the full costs of the supply and if a park resident failed to pay, the park lessor was still required to pay for these costs and therefore security deposits should be allowed.
The consultants consider it appropriate, considering the outlays involved, for the park lessor to require a security deposit for utilities where these would ordinarily be charged by the supply authority.
Another draft standard provided for a park lessor to charge for electricity, gas and excess water when not separately metered. This was criticised by a number of organisations from both sides, expressing the preference for separate metering direct from the supply authority to avoid problems. Some resident organisations also expressed concern at eligible concessions for pensioners not being passed on when supply was through the park lessor.
Caravan park associations commented that restricting charges to at cost did not take into account the costs the owner incurred to provide the utility. For instance, headwork's and trenches, purchase and installation of meters, repairs and maintenance of equipment and the costs of reading meters.
The consultants reviewed the draft standard and accepted that
it is preferable for charges to be built into the rent, unless
there were separate meters and that this was the appropriate standard
across all tenancies. The general standard was then amended and
the draft variation deleted.
7. Connection fees limited to actual costs incurred.
A number of caravan park associations suggested that connection fees should not be limited to the actual costs incurred, as long as there were no restrictive trade practices involved (such as requiring the new park resident to use a particular plumber). It was argued that if a park resident was free to use their own plumber, but chose to request the park lessor to organise a plumber , then the park lessor should be allowed to charge higher than the actual costs to compensate for the risk of managing the plumber and being responsible for their work.
The consultants consider that this is insufficient justification
for charging extra than the actual costs and that it is appropriate
that there be a limit on connection fees.
8. Prohibition on entry/exit fees.
9. Prohibition for fees for site preservation. Park resident to meet reasonable site maintenance requirements.
The proposed standard is similar to the current NSW provisions. In that State, a Mandatory Code of Practice for the Caravan and Relocatable Home Park Industry has been issued under the Fair Trading Act 1987 (NSW). This code sets out a number of rights and responsibilities including the responsibility for preservation or landscaping of the site. The intent of the Code is that even though the park resident may be responsible for reasonable site preservation (ie. mowing and gardening) or landscaping requirements, the park lessor may not require the park resident to pay the owner a fee for site preservation or enter into any collateral contracts to have the site preserved.
The Code states:
This is about the preservation or landscaping of the site and
not landscaping of the whole park. Any standard of site preservation
must be set out in the agreement as well as the respective responsibilities
of the parties about the site when the agreement ends. A park
lessor must not charge a fee for site preservation as a condition
of tenancy, but reasonable site landscaping and maintenance requirements
may be included in the park rules. A park lessor must not require
a park resident or prospective park resident to purchase, rent
or lease goods or services for site preservation or landscaping
from any person, company or corporation.
10. No restrictions on sale of dwellings on site. Prohibition on compulsory premium paid to park lessor for sale of dwellings on site. Agency agreements relating to sale of dwellings on site may be separately entered into. A maximum agency commission to be prescribed by regulation.
The payment of premiums to park lessors upon the sale of a caravan has been a contentious issue in the caravan park industry. A premium is usually the payment of a percentage of the sale price of the dwelling to the park lessor for their agreement to sell the dwelling on site.
Resident organisations were opposed to any such premiums or commissions regarding them as unfair and open to abuse. The views of caravan park association varied, however, those that supported premiums argued that it was only reasonable for a park lessor to be able to benefit from the increased market value of a dwelling resulting from its location, improvements to the park, or a general increase in market value of the park location. For instance, a seaside park may have increased dramatically in value due to increased demand for such a location.
In Queensland, the Mobile Homes Act 1989 (Qld) regulates agreements between people that own and occupy a 'mobile home' (not including caravans) as their principal place of residence. That Act provides mobile home owner occupiers with clear rights to sell the dwelling and prohibits the park lessor from charging a premium or commission on the sale unless the park lessor is providing a service to assist the sale. Further, the amount of the premium or commission is limited to a prescribed amount similar to an agent's commission on sale of a property. Resident organisations criticised the Act however, as it initially failed to require the park lessor to not unreasonably withhold their consent to the assignment of the residency agreement to the new owner. By threatening to withhold their consent a park lessor could require a premium from the resident. This provision was subsequently amended to ensure that a park lessor could not unreasonably withhold their consent.
In contrast, the NSW Code of Practice only required that any restrictions on the sale of a dwelling, and premiums required to be paid, were to be disclosed in the agreement. In the event that a park lessor did not consent to the new owner no premium was payable and a park lessor could not require both a premium and a commission for acting as a selling agent. The NSW Government has recently announced that it intends to prohibit premiums altogether (Ministry of Housing, Planning & Urban Affairs 1994:11).
The consultants do not agree with the arguments raised in support of premiums. Increased valuations of a park may result in benefits to the park lessor in increased site fees being charged to residents. Further, there are direct benefits to the park lessor if they decide to sell the property and realise their investment. Such increases in value may not be able to be realised by residents especially in the event of the park changing use.
It is considered appropriate that premiums be prohibited, and
that if there are agency agreements relating to sale, a maximum
fee be prescribed by regulation.
11. Duty on owner occupier to keep exterior of dwelling maintained.
12. Access for park lessor to inspect meters.
13 Park lessor to maintain common areas and facilities and provide 24 hour access to certain facilities.
There was general support for such a standard, however, it was
noted that there have been some problems in relation to after
hour access for emergency vehicles through boom gates.
14. Longer storage period required for abandoned caravans and relocatable homes. Storage to be on site where dwelling is a relocatable home or caravan with rigid annexe. Park lessor may claim lost income from rent of the site on which the dwelling is stored from the proceeds of sale of the van or home after the storage period has elapsed.
The draft standard simply proposed that a longer storage period be required for abandoned caravans. Resident organisations proposed that this should be expanded to ensure that caravans and relocatable homes be stored on site and not moved as this could cause substantial damage to the dwelling.
Caravan park associations were generally supportive of such a change and it should be noted that the NSW Residential Tenancies Consultative Committee has recommended a change to the provisions relating to abandoned goods so as to not require park lessors to store off site any goods left, including any fixtures and fittings associated with the dwelling eg. carport or annexe but instead store them on site.
Another matter of major concern to resident organisations is when a dwelling is left on site after a termination order has been made by the tribunal. A third party, such as a financial institution, may also have an interest in the dwelling. Currently, a park lessor is required to use the abandoned goods provisions as set out in the regulations. In one case, referred to by resident organisations a resident whose tenancy was subject to a termination order did not have sufficient funds to move the dwelling. No other sites were available for the dwelling to be relocated and the dwelling and contents were all sold at public auction.
The consultants consider that it is appropriate to expand the
draft standard to ensure that caravans with rigid annexes and
relocatable homes would be stored on the site. However, it was
decided that this provision did not need to extend to caravans
without rigid annexes as there are not the same concerns about
damage resulting from moving the dwelling. If site rental is lost
as a result of storage on the site the park lessor should be able
to claim such lost income from any sale proceeds.
15. Prohibition of restrictive practices for services to park residents.
There was general support for this standard which refers to such practices as only using tradespersons approved by the park lessor or requiring the resident to buy gas from the park shop instead of some other supplier.
Some concerns were raised by park lessors where there has been problems with particular tradespersons, such as poor quality work when connecting to park services. The NSW Code of Practice provides three reasons that a park lessor may refuse a tradesperson or service provider entry to the park. They are:
Such exceptions to the standard, including one for poor quality
work, are regarded as appropriate.
16. Right of membership of organisations for park residents
Resident organisations and other community organisations made numerous comments about residents being reluctant to challenge park lessors or management and to make public their membership or support for resident organisations. Newsletters and other information sent to residents are generally sent in non-identifying envelopes to ensure privacy. Resident organisations commented that the right to membership should also extend to the right to have meetings in the common areas in a park as well as the right of resident organisation's staff or officers to visit or canvass residents.
While caravan park associations did not object to such a standard
there were some comments opposing the right to meet and use park
facilities for meetings.
17. Right of park residents to have visitors
This is a new standard included as a result of the consultations. Resident organisations complained about park lessors and management refusing permission for visitors or requiring visitors to report to the park office prior to visiting a resident.
Caravan park associations saw this as a management issue regarding general safety and security for the park, as well as giving residents greater privacy from canvassers or hawkers. It was pointed out that many residents opt for park living because of an increased sense of security and that unrestricted entry by the public would erode that security. Other concerns related to the number of visitors allowed.
The consultants do not regard the general security of a park and
the proposed standard on the right to have visitors as being inconsistent
with each other. Such a general right to have visitors will obviously
be subject to some exceptions similar to those relating to tradespersons
and service providers.
18. Prescribed grounds required for termination of tenancy of relocatable homes and caravans with rigid annexes (ie. no grounds eviction to be prohibited for these forms of dwellings).
There was general support that residents of caravans with rigid annexes and relocatable homes should have more security than currently provided. Resident organisations argued that all tenancies should have security of tenure with a prohibition on termination of agreements for no grounds, however the financial impact of termination of agreements is felt hardest by residents of relocatable homes and caravans with rigid annexes. Relocation often costs between $5,000 - $10,000.
With such potentially high costs, residents are often hesitant to challenge decisions of the management fearing possible termination of their agreement, despite provisions dealing with retaliatory evictions. Community organisations in Victoria note that for people on low incomes, and for elderly people on pensions who have little capacity to meet the costs of relocation, the current provisions requiring 6 months notice on no grounds offer little comfort.
The Caravan and Camping Industry Association of NSW (CCIA) proposed that increased security could be achieved by amendment to planning legislation to increase park lessors ability to offer long term leases to residents (eg. up to 40 years). Existing regulations are restrictive and incur substantial costs for the park lessor.
Currently only the Mobile Homes Act 1989 (Qld) prohibits terminations of agreements on no grounds. This only applies to agreements with owner occupiers of 'mobile home occupiers' and does not extend to caravans with rigid annexes. While the Caravan Parks Association of Qld supports the approach of the Mobile Homes Act 1989, it does not support the extension of just cause to caravans with rigid annexes. The NSW Parliament has recently passed amending legislation to provide for similar provisions for relocatable homes and caravans with rigid annexes.
The consultants consider that such provisions are necessary for
residents with relocatable homes and caravans with rigid annexes
as termination on no grounds creates severe financial hardship
to residents, who have often invested their life savings into
the dwelling. Other options such as long term leases do not resolve
the fundamental problem faced by residents without resources to
relocate at the expiry of the agreement. While caravan park associations
expressed concerns about the implications for management of parks,
there was a general acknowledgment that stronger rights were appropriate
and necessary if the relocatable home industry was going to continue
to attract residents looking for security of tenure.
19. Reduced time periods for notice to remedy and notice of termination, including termination by park resident
Despite the above standard which seeks to give greater rights to certain park residents, there are clear arguments for reduced notice periods to remedy breaches and for the termination of agreements by both sides in caravan parks.
Of major concern to caravan park associations was that with the extension of residential tenancies legislation to the industry, park lessors would be financially ruined if they could not deal quickly with residents breaching park rules and other terms of the agreement. It was pointed out that owner occupiers of caravans without rigid annexes, whether permanent or tourists, were fairly mobile and would leave parks quickly if disputes or breaches of the rules affecting peace and quiet enjoyment of their site were not resolved.
Resident organisations also supported the need to resolve disputes
effectively and quickly, however generally did not support a reduction
in the notice periods as proposed.
20. Special provisions, similar to that proposed for boarding houses, permitting temporary removal of a resident from a park where grounds for immediate termination exist
The rationale for this standard is set out in the previous section
on boarding houses in the previous section.
21. Sale of a park not to be a ground for termination, except where the park is to change use. A prescribed notice period for change of use would apply, and should be the same as termination on no grounds ie. 3 months
The sale of a caravan or relocatable home park generally involves a new park lessor either wanting to continue to operate the park or else wishing to redevelop or sell the site for redevelopment for an alternative use. In the former situation there is no need for a new owner to require vacant possession of the property as a condition of the sale. In the latter situation the sale can result in the eviction of a large number of people, all needing alternative accommodation at the same time.
The consultants consider it is appropriate that sale of a park should not be a ground for termination because:
In the event that the site is being redeveloped then a prescribed
notice period for change of use would apply, and this should be
the same as termination for no grounds.
22. Specific grounds and notice periods required where park
lessor requires the relocation of movable dwellings within the
park. Park lessor to pay costs of re-siting in prescribed circumstances.
Caravan Parks Working Party 1991, The Role of Mobile Homes and Caravan Parks in South Australia, Report to Cabinet, Adelaide.
Community Law Reform Committee of the Australian Capital Territory 1995, Private Residential Tenancy Law, Report No.8, Canberra.
Consumer Affairs Advisory Committee 1994, Residential Tenancy Law Reform Consultation Paper, Hobart.
Department of Health, Housing and Community Services 1992, Long-term Caravan Park Residency A Summary Compiled from Reports and Studies in Australia 1978-1991 (Draft), Canberra.
Kennedy, Robyn, Peter See & Peter Sutherland 1995, Minimum Legislative Standards for Residential Tenancies in Australia, Report Prepared for the Commonwealth Department of Housing and Regional Development, Canberra.
Ministry of Consumer Affairs (WA) 1992, Report to the Hon. Minister for Consumer Affairs on the Operations of the Residential Tenancies Act 1987, Perth.
Ministry of Housing, Planning and Urban Affairs (NSW) 1994, Discussion Paper: Review of Tenancy Legislation Affecting Permanent Residents of Caravan Parks and Manufactured Home Estates, Sydney.
National Housing Strategy 1992, Housing choice: reducing the barriers, Issues Paper No.6, Canberra.
Tenants' Advice Service 1991, Submission to the Residential Tenancies Act Review, Perth.
Tenants' Advice Service 1992, Tenants Advice Service's Response to the Report on the Operations of the Residential Tenancies Act (1987), prepared by Pauline Logan, Perth.
Working Group to Review the Tenancy Act 1993, Report
of the Working Group Appointed to Review Tenancy Law in the Northern
Territory of Australia, Darwin.
Caravan Parks Act 1975 (NT)
Caravan Parks and Movable Dwellings Act 1988 (Vic)
Discrimination Act 1991 (ACT)
Fair Trading Act 1987 (NSW)
Housing Assistance Act 1987 (ACT)
Landlord and Tenant Act 1935 (Tas)
Landlord and Tenant Act 1949 (ACT)
Mobile Homes Act 1989 (Qld)
Residential Tenancies Act 1978 (SA)
Residential Tenancies Act 1980 (Vic)
Residential Tenancies Act 1987 (WA)
Residential Tenancies Act 1987 (NSW)
Residential Tenancies Act 1994 (Qld)
Residential Tenancies (Caravan Parks and Manufactured Home Estates) Amendment Act 1994 (NSW)
Tenancy Act 1979 (NT)
Caravan Parks and Movable Dwellings (Registration and Standards) Regulations 1993 (Vic)
Caravan and Relocatable Home Park Industry Code of Practice Regulation 1992 (NSW)
Health Act (Caravan Parks and Camping Grounds) Regulations 1974 (WA)
Long Stay Caravan Park Housing Assistance Program (ACT)
Residential Tenancies Regulation 1989 (NSW)
Residential Tenancies Regulations 1978 (SA)
Residential Tenancies Regulations 1989 (Qld)
Residential Tenancies Regulations 1989 (WA)
Residential Tenancies Regulations 1992 (Vic)