Residential Parks Act 2007 – The final amendments have landed

The balance of the amendments to the Residential Parks Act 2007 (Act) came into force on 12 August 2019.

These amendments complete the process that commenced with the first round of amendments to the Act that came into force on 21 February 2019.

These changes offer greater protections to residents that occupy a site in a residential park, provided they have their own dwelling.

The aim of these changes is to protect residents that have invested time and money into their dwelling.  It is now significantly more difficult for park owners to terminate an agreement that fits within this category.

Below is a summary of the most significant changes that have come into force that affect how park owners can deal with fixed term residents from now on.

Fixed term agreements – consequences of holding over (section 17A)

Former section 53 relating to fixed term agreements continuing as periodic tenancies where the agreement is not terminated at the end of the term has been deleted and incorporated into the new section 17A. 

Where a fixed term agreement is not terminated at the end of the term, the agreement continues as a periodic tenancy on the same terms and conditions as the original agreement with a period equivalent to the interval rental payment times under the agreement.

This new section 17A does not apply if an agreement is required to be reissued in the circumstances outlined in new section 17B.

Certain residential park site agreements to be reissued

The insertion of the new section 17B is the biggest change to the Act.

This section only applies to residents who occupy a site in the park and provide their own dwelling and have a fixed term agreement of 5 years, or for a resident that has a fixed term agreement that is under 5 years but has held a right of occupancy in the park for 5 years or more (Prescribed FTA).

Reissuing Prescribed FTAs

If a Prescribed FTA has not been terminated at or before the end of the fixed term in accordance with the Act, the Prescribed FTA is taken to have been reissued as a residential park site agreement for the same fixed term and on the same terms that applied under the agreement immediately before the end of the term (section 17B(1)).

Pursuant to section 17B(2), if a park owner or resident does not want the reissued agreement to continue on the same terms and conditions then the park owner or resident may give the other party written notice that a variation to the agreement is sought. 

Upon this notice, the park owner must in consultation with the resident, undertake a review of the agreement and following such review the park owner must reissue the agreement for the same term and on such other terms as have been agreed between the parties. 

A party must not unreasonably withhold its consent to a variation of the terms.  If one party unreasonably withholds its consent, this may be grounds for the other party to make an application to the Tribunal for orders.

The notice period under section 17B(2) must be at least 90 days.

Periodic agreements

Section 17B(6) specifies additional rights for a resident that occupies a residential park site under a periodic residential park site agreement if the resident has held a right of occupancy within the park for a period of 5 years or more (Periodic PSA).  This subsection also places an additional responsibility on a park owner.

A park owner must, in consultation with the resident, undertake a review of the agreement and following the review, the park owner must reissue the agreement for a fixed term agreed with the resident.

When not to reissue or review an agreement and the exceptions

  • In the case of a Prescribed FTA
    The agreement is not to be reissued or reviewed if the resident notifies the park owner that they do not wish to continue to occupy the site under a fixed term agreement.
    If this notice is given by the resident, the Prescribed FTA will continue as a Periodic PSA and section 17B will not apply to the agreement unless:
    • the resident later notifies the park owner that the resident now wishes section 17B to apply to the agreement, and in this case, section 17B(6) applies as if the resident had a right of occupancy for a period of 5 years or more; or
    • the agreement is assigned in accordance with the Act, in which case section 17B applies to the assigned agreement as if the resident had held a right of occupancy for 5 years or more.

  • In the case of a Periodic PSA
    The agreement is not to be reviewed and reissued as a fixed term agreement if the resident notifies the park owner in writing that the resident waives the right to have the agreement reissued.  This notice and waiver must be given in compliance with any requirements in the regulations (of which there are none to date).
    If this notice is given, the Periodic PSA will continue and section 17B will not apply to the agreement unless:
    • the resident notifies the park owner that the resident wishes section 17B to apply to the agreement, in which case section 17B(6) will apply again; or
    • the agreement is assigned in accordance with the Act, in which case section 17B applies to the assigned agreement as if the resident had held a right of occupancy for 5 years or more.

  • In any other case
    The agreement is not to be reissued or reviewed if either party has given notice to the other party of termination.

No ability to terminate without specific grounds for residents that have occupied the site for 5 years or more

Section 72 has been amended to specify when it does not apply.

This section relates to the termination of a residential park site agreement at the end of a fixed term with no specific grounds of termination.

This section now does not apply to a residential park site agreement for a fixed term where the term is 5 years or more, or where the fixed term is less than 5 years but the resident has had a right of occupancy within the park for 5 years or more.

What does this mean?

The enactment of section 17B means that there is greater security for those residents that have occupied a site for a period of 5 years or longer as their agreements go into an automatic renewal if they expire. 

It is then up to the resident to give the park owner notice if they wish to not be bound by a Prescribed FTA or Periodic PSA and therefore section 17B does not apply.  In any event, the resident can opt back into the operation of section 17B at any time.

Those residents that have been in the park for more than 5 years can no longer have their agreement terminated without specific grounds.  Termination of a fixed term must now be for a breach, or within the new termination for redevelopment or change of use provisions that have come into force.

What about the other changes?

Below is a summary of the other changes affecting park owners that have now come into force:

  • Where a park has 20 or more fixed term residential park site agreements in force, a park owner is now responsible for ensuring that there is a residents committee established in the park.

  • Clarification was given that Part 3 of the Act relating to the formation of residential park agreements now applies to an agreement whether it is the first agreement between the park owner and the resident, or a reissued or subsequent agreement.

  • The Commissioner must ensure that there is a model residential park agreement available on the Commissioner’s website that can be used as a guide or template for park owners.

  • Some agreements do not need to be signed by the parties, namely:
    • a periodic tenancy agreement that has arisen as a result of a lapsed fixed term agreement (section 17A); or
    • a written copy of a fixed term agreement.

  • Prior to the changes coming into force, there was no requirement for the park rules to be included in the agreement.  A park owner is now responsible to ensure that any residential park agreement includes a copy of the park rules in force at the time of the agreement.  

  • Park owners are now required to provide additional information to the residents when entering into a residential park site agreement, in particular:
  • a disclosure statement;
    •  a site condition report; and
    • educational publications prescribed by the regulations (of which there are none to date).

  • A resident is not required to pay the park owner an amount for the supply of electricity unless the park owner has provided an account specifying how much the resident is being charged for the supply and how the amount is calculated.  If the resident is being charged for any other related matters, the park owner must supply an account itemising those matters and specifying the amount of the charge.

  • Where a resident dies and their dwelling is left in the park, the park owner must be informed and given the first option to purchase the dwelling.

  • A park owner may terminate an agreement if the park is no longer going to be used as a residential park, or the park is undergoing a redevelopment that cannot be completed unless the residents vacate the site, subject to the park owner offering:

    • a substitute agreement for a site in the same park or another park owned by the park owner;
    • to purchase the dwelling owned by the resident at the time the agreement is terminated; or
    • an agreement for relocation of the dwelling. 

  • A park owner must have a written safety evacuation plan in case of an emergency that must be reviewed at least once a year.

Take home message

These significant changes to the Act affect those residents who have a fixed term agreement of 5 years, or have occupied a site in the park for a period of 5 years.  These amendments change how park owners can deal with the resident’s occupancy agreements.

If you are a park owner or custodian of a residential park and are unsure of your rights and obligations, it is best to seek legal advice.

This article was written by Partner, James McEwen and Solicitor, Janelle Borlace


Practice Area: Local Government , Property Development & Town Planning , Corporate, Commercial & Business

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