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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Residential Parks (Long-stay Tenants) Bill 2004
CONTENTS
Part 1 -- Preliminary matters
1. Short title 2
2. Commencement 2
3. Glossary of terms used in this Act 2
4. Act applies to long-stay agreements 2
5. Operation of this Act in relation to other written laws 4
6. Contracting out 4
Part 2 -- Rights and obligations of
parties before and during tenancy
period
7. Discrimination against tenants with children 5
8. Information for prospective long-stay tenants 5
9. Restrictions on charges payable by long-stay tenants 6
10. Restriction on letting fees payable to real estate agent 7
11. Cost of preparing long-stay agreement 8
12. Disclosure of park operator's particulars to tenant 8
13. Disclosure of tenant's particulars to park operator 9
14. Tenant's copy of long-stay agreement 9
15. Rent in advance 10
16. Security bonds 10
17. Payment of bond to bond administrator or trust
account 11
18. Keeping security bond records 11
19. Cooling off period 12
20. Written receipts for rent 12
21. Requiring post-dated cheques prohibited 13
22. Rent records kept by park operator 13
23. Apportionment of rent 13
page i
355--1
Residential Parks (Long-stay Tenants) Bill 2004
Contents
24. Variation of rent under on-site home agreement 13
25. Variation of rent on the basis of current market rent 14
26. Increase in security bond 14
27. Establishment of park liaison committee 15
28. Constitution of park liaison committee 15
29. Functions of a park liaison committee 16
30. Recovery of amounts paid under a mistake of law or
fact 17
Part 3 -- Long-stay agreements
31. Form of long-stay agreements 18
32. Vacant possession 18
33. No legal impediment to occupation of tenanted
premises 18
34. Provision for rent variation -- on-site home
agreements 18
35. Provision for rent variation -- site-only agreements 18
36. Responsibility for cleanliness 19
37. Responsibility for damage 19
38. Tenant's conduct on premises 20
39. Park operator's responsibility for cleanliness and
repairs 20
40. Compensation where tenant sees to repairs 21
41. Quiet enjoyment 21
42. Locks 22
43. Park operator's right of entry 23
44. Tenant's right to remove fixtures or alter premises 24
45. Rates, taxes and charges paid by park operator 25
46. Provision for subletting the agreed premises 26
47. Tenant's vicarious responsibility for breach of
agreement 27
48. Accelerated rent and liquidated damages prohibited 27
49. Terms that may be excluded, modified or restricted 28
Part 4 -- Termination of long-stay
agreements
50. How long-stay agreements are terminated 29
51. Terms of continued long-stay agreement 30
52. Withholding rent in anticipation of release of security
bond 30
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Residential Parks (Long-stay Tenants) Bill 2004
Contents
53. Failure to give vacant possession at end of fixed term 30
54. Termination by park operator for non-payment of rent 30
55. Termination by park operator for other breaches 32
56. Termination by park operator if residential park sold 33
57. Termination by park operator without grounds 34
58. Notice not waived by acceptance of rent 35
59. Termination of agreement by tenant without grounds 35
60. Termination if agreement frustrated 36
61. When is long-stay tenant entitled to compensation 37
62. Form of default notice 37
63. Form of notice of termination 38
64. Compensation for park operator when premises
abandoned 38
65. Disposing of goods abandoned by tenant 38
66. Tenant's right to reclaim abandoned goods put into
storage 39
67. Title acquired by purchaser of abandoned goods 39
68. Park operator's liability for abandoned goods 39
69. Disposition of proceeds of sale of abandoned goods 40
70. Duty of mitigation following breach of agreement 40
71. Recovery of vacant possession during tenancy period 40
Part 5 -- Sale of relocatable homes on
site
72. Long-stay tenant's right to sell relocatable home on
site 41
73. Park operator's obligations 41
74. When park operator acts as agent in sale on site 41
75. Park operator's authority to act as selling agent 42
Part 6 -- Dispute resolution
76. Breaches of agreement and other disputes 43
77. Orders for reduction of rent 44
78. Orders for vacant possession if rent not paid 46
79. Tribunal's power during fair rent proceedings 47
80. Orders for vacant possession at end of fixed term 48
81. Orders for vacant possession on other grounds 49
82. Tenant's protection against holder of superior title 51
83. Orders to terminate agreement if tenant is causing
damage or injury 51
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Residential Parks (Long-stay Tenants) Bill 2004
Contents
84. Orders to terminate agreement for breach by park
operator 52
85. Termination on grounds of hardship to park operator 52
86. Orders when premises abandoned by tenant 53
87. Disposing of proceeds of sale of abandoned goods 53
88. Park operator's claim if sale proceeds insufficient 54
89. Recovery by owner of value of auctioned goods 54
90. Determination of compensation payable to long-stay
tenant 54
91. Orders exempting persons from the operation of this
Act 55
92. Proceedings instituted or defended by Commissioner 55
93. Conduct of legal proceedings by Commissioner 56
94. Payment of costs and other amounts 57
95. Evidence in proceedings undertaken by Commissioner 58
Part 7 -- Other matters
96. The Department's functions 59
97. Delegation by Commissioner 59
98. Position of the Crown 60
99. Time for commencement of offence proceedings 60
100. Service of documents 60
101. Terms on which ADI holds tenancy bond amounts 61
102. Information from ADI about tenancy bond accounts 61
103. Responsibilities of bond administrator 63
104. Officials protected from liability 63
105. Regulations 63
106. Review of the Act 64
107. Transitional provisions 65
108. The Residential Tenancies Act 1987 amended 67
Glossary 68
page iv
Western Australia
LEGISLATIVE ASSEMBLY
Residential Parks (Long-stay Tenants) Bill 2004
A Bill for
An Act to regulate the relationship between operators of residential
parks and tenants who live in the park for extended periods, to make
consequential amendments to the Residential Tenancies Act 1987, and
for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Residential Parks (Long-stay Tenants) Bill 2004
Part 1 Preliminary matters
s. 1
Part 1 -- Preliminary matters
1. Short title
This Act may be cited as the Residential Parks (Long-stay
Tenants) Act 2004.
5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. Glossary of terms used in this Act
10 The Glossary at the end of this Act defines or affects the
meaning of some of the words and expressions used in this Act.
4. Act applies to long-stay agreements
(1) For the purposes of this Act, a "long-stay agreement" is an
agreement made between an individual and a park operator
15 under which the park operator for valuable consideration grants
to the individual, for a fixed term of 3 months or longer, or
under a periodic tenancy that has continued for 3 months and is
still continuing --
(a) the right to occupy a relocatable home provided by the
20 park operator on a site in the residential park; or
(b) the right to occupy a relocatable home provided by the
individual on a site in the residential park.
(2) This Act applies to a long-stay agreement, except to the extent
that this Act specifically provides otherwise --
25 (a) whether the agreement was made before or after the
commencement of this section; and
(b) despite the terms of any residential tenancy agreement,
other agreement, contract or arrangement, whether made
before or after the commencement of this section.
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Residential Parks (Long-stay Tenants) Bill 2004
Preliminary matters Part 1
s. 4
(3) This Act does not apply to an agreement under which an
employee or agent of the park operator obtains a right to occupy
a site or other premises in the residential park during the term of
the employment or agency.
5 (4) Unless the contrary intention appears, a reference in this Act to
the making of a long-stay agreement is to be read as including a
reference to renewing, extending, assigning or otherwise
transferring the agreement.
(5) Where a continuing agreement made after the commencement
10 of this Act for a periodic tenancy is a long-stay agreement as
mentioned in subsection (1) --
(a) from the end of the period of 3 months after the original
agreement for the periodic tenancy was made, this Act
applies to the original agreement, to the extent that it can
15 be applied, until the agreement is terminated or replaced
by another agreement;
(b) if the original agreement was not made in accordance
with this Act -- the park operator must attempt to make
with the long-stay tenant a long-stay agreement
20 complies with this Act; and
(c) if the tenant refuses to execute such an agreement, either
party may apply to the State Administrative Tribunal for
the termination of the original agreement, or for a
determination in respect of the terms of the proposed
25 new agreement, at the discretion of the State
Administrative Tribunal.
(6) A park operator who does not take appropriate steps to make a
long-stay agreement as mentioned in subsection (5)(b) is guilty
of an offence.
30 Penalty: $10 000.
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Residential Parks (Long-stay Tenants) Bill 2004
Part 1 Preliminary matters
s. 5
5. Operation of this Act in relation to other written laws
(1) The Residential Tenancies Act 1987 does not apply to a tenancy
under a long-stay agreement except to the extent provided in
section 107.
5 (2) The Retirement Villages Act 1992 does not apply to a lifestyle
village established for retired persons or predominantly for
retired persons.
(3) Except as otherwise provided by this Act, the provisions of this
Act are in addition to, and do not derogate from, the provisions
10 of any other written law.
6. Contracting out
(1) Except as specifically provided in section 49 or by another
provision of this Act --
(a) any contract, agreement, scheme or arrangement,
15 whether it was made before or after the commencement
of this Act, is void and of no effect to the extent that it
purports to exclude, modify or restrict the operation of
this Act; and
(b) any purported waiver of a right conferred by or under
20 this Act is void and of no effect.
(2) A person must not enter into any contract, agreement or
arrangement with the intention, either directly or indirectly, of
defeating, evading or preventing the operation of this Act.
Penalty: $10 000.
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Residential Parks (Long-stay Tenants) Bill 2004
Rights and obligations of parties before and during tenancy Part 2
period
s. 7
Part 2 -- Rights and obligations of parties before and
during tenancy period
7. Discrimination against tenants with children
(1) A person must not --
5 (a) refuse to make a long-stay agreement with an individual
on the grounds that it is intended that a child will live on
the agreed premises; or
(b) advertise, or otherwise indicate an intention, to refuse to
make a long-stay agreement with an individual on those
10 grounds.
(2) A person must not instruct anyone else --
(a) to refuse to make a long-stay agreement with an
individual on the grounds that it is intended that a child
will live on the agreed premises; or
15 (b) to advertise, or otherwise indicate an intention, to refuse
to make a long-stay agreement with an individual on
that ground.
Penalty: $5 000.
8. Information for prospective long-stay tenants
20 (1) Before a park operator makes a long-stay agreement with a
prospective long-stay tenant, the park operator must give the
following to the prospective long-stay tenant --
(a) a copy of the proposed agreement;
(b) a copy of the information booklet prepared by the
25 Department for the purposes of this paragraph;
(c) a written schedule of fees and charges showing the
nature and amount of all fees and charges currently
payable by a long-stay tenant to the park operator before
or at the time that the agreement is made or during the
30 term of the agreement;
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Residential Parks (Long-stay Tenants) Bill 2004
Part 2 Rights and obligations of parties before and during tenancy
period
s. 9
(d) a report in accordance with the regulations giving details
of the condition of the proposed agreed premises and
any structures or fixtures on or in those premises;
(e) a copy of the park rules;
5 (f) written information about the membership and functions
of the park liaison committee (if any);
(g) a copy of the prescribed Questions and Answers
information sheet completed by the park operator in
accordance with the regulations;
10 (h) particulars of any restrictions or conditions imposed
directly or indirectly under a written law that could
affect the sale of the prospective tenant's relocatable
home while it is located on a site in the residential park;
(i) particulars of any restrictions or conditions imposed
15 directly or indirectly under a written law that could
affect any proposed assignment of the prospective
tenant's rights under the proposed long-stay agreement;
(j) any other prescribed information.
(2) A park operator who does not comply with subsection (1)
20 commits an offence.
Penalty: $5 000.
9. Restrictions on charges payable by long-stay tenants
(1) A park operator must not require or receive from a long-stay
tenant or prospective long-stay tenant any payment of money
25 for or in relation to entering into, renewing, extending or
continuing the long-stay agreement except money for rent and a
security bond.
Penalty: $5 000.
(2) Subsection (1) does not apply to --
30 (a) an amount paid or payable as consideration for an option
to enter into a long-stay agreement if, when the option is
page 6
Residential Parks (Long-stay Tenants) Bill 2004
Rights and obligations of parties before and during tenancy Part 2
period
s. 10
exercised, the amount is refunded or applied towards the
rent payable under the agreement;
(b) any amount that the park operator is authorised to
require or receive under another provision of this Act; or
5 (c) any other payment of a prescribed class.
(3) A real estate agent who provides services on behalf of a park
operator in connection with letting agreed premises or entering
into a long-stay agreement must not require or receive from the
long-stay tenant or prospective long-stay tenant any fee, charge
10 or reward for those services.
Penalty: $5 000.
(4) A real estate agent who provides services on behalf of a
long-stay tenant in connection with sub-letting the agreed
premises must not require or receive from the sub-tenant or
15 prospective sub-tenant any fee, charge or reward for those
services.
Penalty: $5 000.
(5) A fee, charge or reward accepted in contravention of this section
is recoverable by the person who paid it as a debt due in a court
20 of competent jurisdiction.
10. Restriction on letting fees payable to real estate agent
(1) A real estate agent who provides services on behalf of a park
operator or a long-stay tenant in connection with letting or
sub-letting agreed premises or entering into a long-stay
25 agreement or a sub-tenancy agreement must not require or
receive from the park operator or long-stay tenant any fee,
charge or reward for those services except --
(a) a letting fee not exceeding 2 weeks' rent; or
(b) if another amount is prescribed -- the prescribed
30 amount.
Penalty: $5 000.
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Residential Parks (Long-stay Tenants) Bill 2004
Part 2 Rights and obligations of parties before and during tenancy
period
s. 11
(2) A fee, charge or reward accepted in contravention of this section
is recoverable by the person who paid it as a debt due in a court
of competent jurisdiction.
11. Cost of preparing long-stay agreement
5 The park operator must bear the cost of preparing the proposed
long-stay agreement for execution by the parties to the
agreement.
Penalty: $5 000.
12. Disclosure of park operator's particulars to tenant
10 (1) When a park operator enters into a long-stay agreement, the
park operator must ensure that the long-stay tenant is given
written notice of the following --
(a) the full name and address of the park operator and of
any person having superior title to that of the park
15 operator;
(b) if the park operator or person with superior title is a
body corporate -- the full name and business address of
the secretary of the body corporate.
Penalty: $5 000.
20 (2) If a person succeeds another person as the park operator, the
new park operator must ensure that the long-stay tenant is given
written notice of the following --
(a) the full name and address of the new park operator;
(b) if the new park operator is a body corporate -- the full
25 name and business address of the secretary of the body
corporate.
Penalty: $5 000.
(3) If a name or address of which the park operator is required to
give notice to the long-stay tenant is changed, the park operator
30 must within 14 days give the tenant written notice of the new
name or address.
Penalty: $5 000.
page 8
Residential Parks (Long-stay Tenants) Bill 2004
Rights and obligations of parties before and during tenancy Part 2
period
s. 13
(4) However, if the residential park is managed by a real estate
agent, it is sufficient for the long-stay tenant to be notified of the
address of the agent, instead of the address of the park operator.
13. Disclosure of tenant's particulars to park operator
5 (1) A long-stay tenant or prospective long-stay tenant must not
falsely state the tenant's name or place of occupation to the park
operator.
Penalty: $5 000.
(2) If a long-stay tenant has given particulars of the tenant's place
10 of occupation to the park operator and the place is changed, the
tenant must notify the park operator of the new place of
occupation within 14 days after the change.
Penalty: $5 000.
(3) When a long-stay tenant vacates the agreed premises, the tenant
15 must give the park operator particulars of the tenant's next
intended residential address or postal address.
Penalty: $5 000.
14. Tenant's copy of long-stay agreement
(1) When a long-stay tenant signs the long-stay agreement, the park
20 operator must --
(a) give the tenant a copy of the agreement; and
(b) ensure that a fully executed copy of the agreement is
given to the tenant within 21 days after it was first
signed by the tenant or, if that is not practicable in the
25 circumstances, as soon as practicable after that.
Penalty: $5 000.
(2) If the park operator does not execute the long-stay agreement
and give the long-stay tenant a copy of it in accordance with
subsection (1)(b), acceptance of rent from the tenant by the park
30 operator gives the agreement the same effect as if it had been
fully executed.
page 9
Residential Parks (Long-stay Tenants) Bill 2004
Part 2 Rights and obligations of parties before and during tenancy
period
s. 15
15. Rent in advance
(1) A park operator must not require a long-stay tenant or
prospective long-stay tenant to pay more than 2 weeks' rent
before or during the first 2 weeks of the tenancy.
5 Penalty: $5 000.
(2) A park operator must not require a long-stay tenant to pay any
further rent before the end of any period for which rent has been
paid.
Penalty: $5 000.
10 16. Security bonds
(1) A park operator must not require or receive payment of more
than one security bond in respect of a long-stay agreement.
Penalty: $5 000.
(2) A park operator must not require or receive payment of a
15 security bond if the amount of the bond is more than the sum
of --
(a) 4 weeks' rent; and
(b) if the long-stay tenant is permitted to keep a cat or dog
at the park site -- an amount to meet the cost of
20 fumigating the premises at the end of the tenancy, if
necessary, that is not more than $100 or, if an amount is
prescribed for the purposes of this paragraph, the
prescribed amount.
Penalty: $5 000.
25 (3) When a long-stay tenant pays a security bond, the park operator
must give the long-stay tenant a receipt that specifies --
(a) the amount paid;
(b) the date on which it is paid;
(c) if a pet bond is paid -- the amount of the pet bond;
30 (d) the name of the tenant; and
page 10
Residential Parks (Long-stay Tenants) Bill 2004
Rights and obligations of parties before and during tenancy Part 2
period
s. 17
(e) particulars of the agreed premises for which it is paid.
Penalty: $20 000.
17. Payment of bond to bond administrator or trust account
(1) When a park operator receives a security bond, the park
5 operator must, within 14 days, deposit an amount equal to the
amount of the bond --
(a) with the bond administrator or a bond agent; or
(b) into a separate ADI account held in the names of the
park operator and the long-stay tenant and entitled
10 "tenancy bond account".
Penalty: $20 000.
(2) When a real estate agent receives a security bond as the agent of
a park operator in relation to a long-stay agreement, the real
estate agent must deposit an amount equal to the amount of the
15 bond into --
(a) the tenancy bond trust account held by the agent for the
purposes of the Residential Tenancies Act 1987 as
mentioned in Schedule 1 clause 2(3)(a); or
(b) a separate trust account entitled "tenancy bond trust
20 account" that is maintained by the agent in accordance
with the Real Estate and Business Agents Act 1978
Part VI.
18. Keeping security bond records
(1) The park operator must keep a record of --
25 (a) the particulars specified in the receipt given to the
long-stay tenant; and
(b) if the security bond amount is deposited in a tenancy
bond account -- the name of the ADI or authorised
financial institution with whom the account is held.
30 Penalty: $20 000.
page 11
Residential Parks (Long-stay Tenants) Bill 2004
Part 2 Rights and obligations of parties before and during tenancy
period
s. 19
(2) The park operator must give a copy of the record to the
long-stay tenant within 3 working days.
Penalty: $5 000.
(3) A person must not make an entry in a record that the person
5 knows is false in a material particular.
Penalty: $5 000.
19. Cooling off period
(1) A long-stay tenant under a site-only agreement is entitled to
rescind the agreement --
10 (a) at any time within 5 working days after the date of the
agreement; or
(b) if the park operator does not comply with
section 8(1) -- at any time within 10 working days after
the date on which the documents required under that
15 section are given to the tenant.
(2) A person is not entitled to rescind a long-stay agreement under
this section after taking up occupation of the agreed premises.
20. Written receipts for rent
(1) When a park operator receives any rent under a long-stay
20 agreement, the park operator must give the long-stay tenant a
written receipt for the rent within 3 working days.
(2) The receipt must specify --
(a) the date on which the rent was received;
(b) the amount paid;
25 (c) the period for which the amount is paid;
(d) the name of the long-stay tenant; and
(e) particulars of the agreed premises.
Penalty: $5 000.
page 12
Residential Parks (Long-stay Tenants) Bill 2004
Rights and obligations of parties before and during tenancy Part 2
period
s. 21
(3) However, the park operator does not have to give a written
receipt for rent that is paid, under an agreement between the
park operator and the long-stay tenant, into an ADI account
nominated by the park operator.
5 21. Requiring post-dated cheques prohibited
A person must not require a post-dated cheque or other
post-dated negotiable instrument in payment of rent.
Penalty: $5 000.
22. Rent records kept by park operator
10 (1) A park operator must keep a record of the rent received for
agreed premises.
Penalty: $5 000.
(2) A person must not make an entry in a record that the person
knows is false or misleading in a material particular.
15 Penalty: $5 000.
23. Apportionment of rent
(1) Rent payable under a long-stay agreement --
(a) accrues from day to day; and
(b) is to be apportioned accordingly when the agreement
20 ends.
(2) Any amount payable or recoverable as a result of the
apportionment is payable or recoverable immediately.
24. Variation of rent under on-site home agreement
(1) A park operator may increase the rent payable under an on-site
25 home agreement by giving a written notice to the long-stay
tenant specifying the amount of the increased rent and the day
from which the increased rent becomes payable.
page 13
Residential Parks (Long-stay Tenants) Bill 2004
Part 2 Rights and obligations of parties before and during tenancy
period
s. 25
(2) The specified day must be --
(a) at least 60 days after the day on which the notice is
given;
(b) at least 6 months after the day on which the tenancy
5 period began;
(c) if the rent has previously been increased under this
section -- at least 6 months after the day on which it
was last increased; and
(d) if the on-site home agreement is for a fixed term -- after
10 the last day of the fixed term, unless the agreement
provides that the rent may increase or be increased
during the fixed term.
(3) A notice of increase of rent that has been given in accordance
with this section and has not been withdrawn by the park
15 operator varies the long-stay agreement to the effect that the
increased rent specified in the notice is payable under the
agreement from the day specified in the notice.
25. Variation of rent on the basis of current market rent
If a site-only agreement provides for a review of rent on a
20 market rent basis then, when calculating the amount of rent to
be payable on and after the review date, the park operator must
have regard to a report obtained for the purpose by the park
operator from a person licensed under the Land Valuers
Licensing Act 1978.
25 Penalty: $5 000.
26. Increase in security bond
(1) When the amount of rent payable under a long-stay agreement
is increased, the park operator may increase the amount of the
security bond payable by the long-stay tenant by giving the
30 tenant a written notice specifying the amount of the increase and
the day on which it is payable.
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Residential Parks (Long-stay Tenants) Bill 2004
Rights and obligations of parties before and during tenancy Part 2
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s. 27
(2) The specified day must be at least 60 days after the day on
which the notice is given.
(3) The security bond cannot be increased to an amount that would
exceed the sum of --
5 (a) 4 weeks' rent under the long-stay agreement at the time
at which the amount of the increase would be payable;
and
(b) if a pet bond is payable -- the maximum amount
chargeable under section 16(2)(b).
10 (4) A notice of increase of the amount of security bond that has
been given in accordance with this section and that has not been
withdrawn by the park operator varies the long-stay agreement
to the effect that the amount of the increase specified in the
notice is payable under the agreement on the day specified in
15 the notice.
(5) Sections 16(3), 17 and 18 apply to an amount paid under this
section.
27. Establishment of park liaison committee
(1) If 20 or more long-stay tenants use the residential park as their
20 sole or principal place of residence, the park operator must
convene and maintain a park liaison committee for the park in
accordance with section 28.
Penalty: $5 000.
(2) It is a defence to a prosecution for an offence under
25 subsection (1) that the park operator took all reasonable steps to
convene and maintain a park liaison committee.
28. Constitution of park liaison committee
(1) A park liaison committee consists of --
(a) one or more long-stay tenants of the residential park,
30 chosen by the other long-stay tenants of the park to
represent the interests of long-stay tenants;
page 15
Residential Parks (Long-stay Tenants) Bill 2004
Part 2 Rights and obligations of parties before and during tenancy
period
s. 29
(b) one or more representatives of the park operator.
(2) There must be more members of the park liaison committee
who are representatives of the long-stay tenants than there are
members who are representatives of the park operator.
5 (3) The Commissioner may make and publish guidelines with
respect to --
(a) choosing the members of a park liaison committee who
are representatives of the long-stay tenants; and
(b) the procedures to be observed at meetings of a park
10 liaison committee.
29. Functions of a park liaison committee
(1) The principal objective of a park liaison committee is to
improve the lifestyle and well-being of persons who use the
residential park as their sole or principal place of residence.
15 (2) A park liaison committee's functions are --
(a) to help the park operator to prepare park rules and
amendments of the rules;
(b) to help the park operator to ensure that the park rules are
observed;
20 (c) to help resolve disputes between residents;
(d) to help resolve disputes between a resident and the park
operator;
(e) to develop guidelines for the standards of behaviour
applicable to the residents of the residential park;
25 (f) to develop policies for the improvement and
maintenance of the natural environment and the
amenities of the residential park; and
(g) to carry out any other function that is prescribed.
page 16
Residential Parks (Long-stay Tenants) Bill 2004
Rights and obligations of parties before and during tenancy Part 2
period
s. 30
30. Recovery of amounts paid under a mistake of law or fact
(1) A party to a long-stay agreement is entitled to recover an
amount paid to the other party under a mistake of law or fact
relating to the agreement.
5 (2) A long-stay tenant may recover an amount mistakenly paid to
the park operator by deducting it from rent payable by the tenant
under the long-stay agreement.
page 17
Residential Parks (Long-stay Tenants) Bill 2004
Part 3 Long-stay agreements
s. 31
Part 3 -- Long-stay agreements
31. Form of long-stay agreements
A long-stay agreement must --
(a) be in writing;
5 (b) include the prescribed clauses; and
(c) make provision for any prescribed matters.
32. Vacant possession
It is a term of a long-stay agreement that vacant possession of
the agreed premises will be given to the long-stay tenant on the
10 day on which the tenant is entitled under the agreement to take
up occupation of the agreed premises.
33. No legal impediment to occupation of tenanted premises
It is a term of a long-stay agreement on the part of the park
operator that there is no legal impediment to the long-stay
15 tenant's occupation of the agreed premises as a residence, or to
the tenant's use of the agreed premises, for the period of the
agreement, being an impediment of which, at the time of
entering into the agreement, the park operator had knowledge or
ought reasonably to have had knowledge.
20 34. Provision for rent variation -- on-site home agreements
An on-site home agreement may exclude or limit the park
operator's right to increase rent under section 24.
35. Provision for rent variation -- site-only agreements
(1) A site-only agreement may provide for rent to be reviewed as
25 specified in the agreement.
(2) The provision is of no effect if the site-only agreement provides
for review of the rent at intervals of less than 12 months.
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Residential Parks (Long-stay Tenants) Bill 2004
Long-stay agreements Part 3
s. 36
(3) The provision is of no effect unless the agreement specifies, for
each review to be carried out during the tenancy period, a single
basis for calculating the amount of rent payable on and after the
review date.
5 (4) However, different bases for calculation may be specified for
different review dates.
(5) A provision of a site-only agreement is of no effect to the extent
that it purports to provide that the rent payable on and after a
review date is not reduced if the amount calculated on the basis
10 specified in the agreement for that review date is less than the
amount that was payable under the agreement immediately
before the review date.
36. Responsibility for cleanliness
(1) It is a term of a site-only agreement that the long-stay tenant
15 must keep the site and the exterior of the relocatable home on
the site in a reasonable state of cleanliness.
(2) It is a term of an on-site home agreement that the long-stay
tenant must keep the site and both the interior and the exterior
of the on-site home in a reasonable state of cleanliness.
20 37. Responsibility for damage
(1) It is a term of a long-stay agreement that the long-stay tenant
must not intentionally or negligently cause or permit damage to
the agreed premises or the shared premises.
(2) It is a term of a site-only agreement that the long-stay tenant
25 must notify the park operator, as soon as practicable but in any
case within 3 days, of any damage --
(a) to the site or to any fittings or fixtures on the site; or
(b) to the exterior of the relocatable home on the site.
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Residential Parks (Long-stay Tenants) Bill 2004
Part 3 Long-stay agreements
s. 38
(3) It is a term of an on-site home agreement that the long-stay
tenant must notify the park operator, as soon as practicable but
in any case within 3 days, of any damage --
(a) to the site or to any fittings or fixtures on the site;
5 (b) to the exterior or interior of the on-site home; or
(c) to any chattels, fittings or fixtures in or on the on-site
home that are provided by the park operator for the use
of the tenant.
38. Tenant's conduct on premises
10 It is a term of a long-stay agreement that the long-stay tenant --
(a) must not cause or permit a nuisance anywhere in the
residential park; and
(b) must not use the agreed premises or the shared premises,
or cause or permit them to be used, for an illegal
15 purpose.
39. Park operator's responsibility for cleanliness and repairs
It is a term of a long-stay agreement that the park operator
must --
(a) provide the agreed premises and the shared premises in
20 a reasonable state of cleanliness;
(b) maintain the shared premises in a reasonable state of
cleanliness;
(c) provide and maintain the agreed premises and the shared
premises in a reasonable state of repair having regard to
25 their age, character and prospective life; and
(d) comply with any other written laws that apply in relation
to the buildings in the residential park or the health and
safety of residents of the park.
page 20
Residential Parks (Long-stay Tenants) Bill 2004
Long-stay agreements Part 3
s. 40
40. Compensation where tenant sees to repairs
(1) It is a term of a long-stay agreement that the park operator must
compensate the long-stay tenant for any reasonable expense
incurred by the tenant in making urgent repairs to the agreed
5 premises where --
(a) the state of disrepair has arisen otherwise than as a result
of a breach of the long-stay agreement by the tenant and
is likely to cause injury to person or property or undue
inconvenience to the tenant; and
10 (b) the tenant has made a reasonable attempt to give to the
park operator notice of the state of disrepair and of his
or her intention to incur expense in repairing the
premises.
(2) However, the park operator is not obliged to compensate the
15 long-stay tenant unless --
(a) the person who carries out the repairs holds a licence to
do such work, if a written law requires the person to
hold the licence; and
(b) the tenant has given to the owner a report prepared by
20 the repairer as to the apparent cause of the state of
disrepair.
(3) Subsection (1) applies whether or not the long-stay tenant has
notice of the state of the agreed premises at the time when the
long-stay agreement is entered into.
25 41. Quiet enjoyment
It is a term of a long-stay agreement --
(a) that the long-stay tenant has a right to quiet enjoyment
of the agreed premises without interruption by the park
operator or any person claiming by, through or under the
30 park operator or having superior title to that of the park
operator;
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Residential Parks (Long-stay Tenants) Bill 2004
Part 3 Long-stay agreements
s. 42
(b) that the park operator must not cause or permit any
interference with the reasonable peace, comfort or
privacy of the long-stay tenant in the use by the
long-stay tenant of the agreed premises or the reasonable
5 use by the long-stay tenant of the shared premises; and
(c) that the park operator must take all reasonable steps to
enforce the obligation of any other tenant of the park
operator not to cause or permit any interference with the
reasonable peace, comfort or privacy of the long-stay
10 tenant in the use by the long-stay tenant of the agreed
premises or the shared premises.
42. Locks
(1) It is a term of an on-site home agreement that the park operator
must provide and maintain such locks or other devices as are
15 necessary to ensure that the on-site home is reasonably secure.
(2) It is a term of a long-stay agreement that the long-stay tenant
will not alter, remove or add any lock or similar device to the
agreed premises or the shared premises without the consent of
the park operator given at, or immediately before, the time that
20 the alteration, removal or addition is carried out.
(3) It is a term of a long-stay agreement that the park operator will
not alter, remove or add any lock or similar device to the agreed
premises or to anything that belongs to the long-stay tenant
without the consent of the tenant given at, or immediately
25 before, the time that the alteration, removal or addition is
carried out.
(4) It is a term of a long-stay agreement that the park operator will
not alter, remove or add any lock or similar device to the shared
premises without first notifying the long-stay tenant and
30 providing the tenant with a means of access to the shared
premises.
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Residential Parks (Long-stay Tenants) Bill 2004
Long-stay agreements Part 3
s. 43
(5) A long-stay tenant who breaches the term referred to in
subsection (2) without reasonable excuse is, in addition to any
civil liability that the tenant might incur, guilty of an offence.
Penalty: $20 000.
5 (6) A park operator who breaches the term referred to in
subsection (3) or (4) without reasonable excuse is, in addition to
any civil liability that the park operator might incur, guilty of an
offence.
Penalty: $20 000.
10 (7) If an agent of the park operator, without reasonable excuse,
alters, removes or adds a lock or device to the agreed premises
or the shared premises without the consent of the long-stay
tenant given at or immediately before the time that the
alteration, removal or addition is carried out, then the agent is,
15 in addition to any civil liability that the agent might incur, guilty
of an offence.
Penalty: $20 000.
43. Park operator's right of entry
(1) It is a term of a long-stay agreement that the park operator may
20 enter the agreed premises and any other premises occupied by
the long-stay tenant under the agreement, including any
relocatable home or other structure provided by the tenant --
(a) with the consent of the tenant given at, or immediately
before, the time of entry; or
25 (b) at any time in an emergency.
(2) It is a term of a long-stay agreement that the park operator may
enter the agreed premises --
(a) on giving at least 24 hours' written notice to the
long-stay tenant where the park operator requires access
30 to meet the park operator's obligations under this Act or
to inspect repairs and maintenance to the site;
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Residential Parks (Long-stay Tenants) Bill 2004
Part 3 Long-stay agreements
s. 44
(b) on a day and at a reasonable time specified in a written
notice given to the tenant at least 7 and not more than
14 days in advance, for the purpose of inspecting the
premises or for any other purpose;
5 (c) at any reasonable time for the purpose of collecting the
rent under the agreement, where under the agreement the
rent is payable not more frequently than once each week
and is to be collected at the premises;
(d) for the purpose of inspecting the agreed premises, on the
10 occasion of a rent collection referred to in paragraph (c),
but not more frequently than once every 4 weeks;
(e) for the purpose of carrying out or inspecting necessary
repairs to or maintenance of the agreed premises, at any
reasonable time, after giving the tenant at least 72 hours'
15 notice;
(f) at any reasonable hour and on a reasonable number of
occasions during the 21 days before the agreement ends,
after giving the tenant reasonable notice, for the purpose
of showing the agreed premises to prospective tenants;
20 or
(g) at any reasonable time and on a reasonable number of
occasions, after giving the tenant reasonable notice, for
the purpose of showing the agreed premises to
prospective purchasers.
25 44. Tenant's right to remove fixtures or alter premises
(1) A long-stay agreement may provide that --
(a) the long-stay tenant must not affix a fixture or make a
renovation or an alteration or addition to the agreed
premises; or
30 (b) the long-stay tenant may affix a fixture or make a
renovation or an alteration or addition to the agreed
premises, but only with the park operator's consent.
page 24
Residential Parks (Long-stay Tenants) Bill 2004
Long-stay agreements Part 3
s. 45
(2) A site-only agreement may provide that --
(a) the long-stay tenant must not affix a fixture or make a
renovation or an alteration or addition to the exterior of
the relocatable home on the site or to the exterior of any
5 other structure on the site that is not part of the agreed
premises; or
(b) the long-stay tenant may affix a fixture or make a
renovation or an alteration or addition to the exterior of
the relocatable home on the site or to the exterior of any
10 other structure provided by the tenant that is on the site,
but only with the park operator's consent.
(3) If a long-stay agreement includes the provision described in
subsection (1)(b) or (2)(b), it is a term of the agreement that --
(a) the park operator must not withhold consent
15 unreasonably;
(b) at any time while the long-stay tenant's right to occupy
the agreed premises continues, the tenant may remove
any fixture that he or she has, with the park operator's
consent, affixed to the premises, unless the removal of
20 the fixture would cause irreparable damage to the agreed
premises; and
(c) if the tenant's removal of a fixture causes damage to the
agreed premises, the tenant must notify the park
operator and, at the option of the park operator, repair
25 the damage or compensate the park operator for any
reasonable expenses incurred by the park operator in
repairing the damage.
45. Rates, taxes and charges paid by park operator
It is a term of a long-stay agreement that the park operator must
30 bear the cost of all rates, taxes or charges imposed in respect of
the agreed premises and the shared premises under any of the
following written laws --
(a) the Land Tax Act 2002;
page 25
Residential Parks (Long-stay Tenants) Bill 2004
Part 3 Long-stay agreements
s. 46
(b) the Local Government Act 1995;
(c) any written law under which a rate, tax or charge is
imposed for "water services", as defined in the Water
Agencies (Powers) Act 1984, except a charge for water
5 consumed.
46. Provision for subletting the agreed premises
(1) A long-stay agreement may provide that the long-stay tenant --
(a) may assign his or her interest under the agreement or
sub-let the agreed premises;
10 (b) must not assign his or her interest under the agreement
or sub-let the agreed premises; or
(c) may assign his or her interest under the agreement or
sub-let the agreed premises only with the written
consent of the park operator.
15 (2) If a long-stay agreement does not include a provision of a kind
described in subsection (1), the agreement is taken to include
the provision described in subsection (1)(c).
(3) Where a long-stay agreement includes or is taken to include the
provision described in subsection (1)(c), it is a term of the
20 agreement --
(a) that the park operator must not unreasonably withhold
consent; and
(b) that the park operator must not make any charge for
giving the consent except for reasonable incidental
25 expenses.
(4) However, the operation of a provision of a long-stay agreement
that purports to permit the assignment of the long-stay tenant's
interest under the agreement is subject to the operation of any
other written law that prohibits or regulates such an assignment.
page 26
Residential Parks (Long-stay Tenants) Bill 2004
Long-stay agreements Part 3
s. 47
47. Tenant's vicarious responsibility for breach of agreement
(1) It is a term of a long-stay agreement that the long-stay tenant is
vicariously responsible for any act or omission of another
person who is lawfully on the agreed premises or the shared
5 premises, if the act or omission would have constituted a breach
of the agreement if done or omitted by the tenant.
(2) However, subsection (1) does not extend to a person who is
lawfully on the agreed premises or the shared premises but
whose authority does not derive from the permission, express or
10 implied, of the long-stay tenant.
48. Accelerated rent and liquidated damages prohibited
(1) A long-stay agreement is void and of no effect to the extent that
it provides that, if the long-stay tenant breaches the agreement,
this Act or another written law, the tenant is liable to pay --
15 (a) all or part of the rent remaining payable under the
agreement;
(b) rent of an increased amount;
(c) an amount by way of penalty; or
(d) an amount by way of liquidated damages.
20 (2) If a long-stay agreement provides that, if the long-stay tenant
does not breach the agreement, this Act or another written law,
the tenant is or may be granted a reduction in rent, or a rebate,
refund or other benefit, then --
(a) the agreement is taken to have been varied from the
25 commencement of the tenancy; and
(b) the tenant is entitled to the reduction, rebate, refund or
other benefit in any event.
page 27
Residential Parks (Long-stay Tenants) Bill 2004
Part 3 Long-stay agreements
s. 49
49. Terms that may be excluded, modified or restricted
A long-stay agreement may exclude, modify or restrict
the operation of any or all of the following provisions of this
Act --
5 (a) section 11 (cost of preparing long-stay agreement);
(b) section 32 (vacant possession);
(c) section 33 (no legal impediment to occupation of
tenanted premises);
(d) section 36 (responsibility for cleanliness);
10 (e) section 37 (responsibility for damage);
(f) section 38 (tenant's conduct on premises);
(g) section 39 (park operator's responsibility for cleanliness
and repairs);
(h) section 40 (compensation where tenant sees to repairs);
15 (i) section 42 (locks);
(j) section 43 (park operator's right of entry);
(k) section 44 (tenant's right to remove fixtures or alter
premises);
(l) section 45 (rates, taxes and charges paid by park
20 operator);
(m) section 46 (tenant's right to assign or sublet the
premises);
(n) section 47 (tenant's vicarious responsibility for breach
of agreement);
25 (o) section 72 (long-stay tenant's right to sell relocatable
home on site).
page 28
Residential Parks (Long-stay Tenants) Bill 2004
Termination of long-stay agreements Part 4
s. 50
Part 4 -- Termination of long-stay agreements
50. How long-stay agreements are terminated
(1) If a long-stay tenant or park operator gives a notice of
termination of a long-stay agreement in accordance with this
5 Act, the agreement is terminated when both of the following
events have happened --
(a) the period of notice, or any shorter or longer period
agreed between the tenant and the park operator, has
ended;
10 (b) the tenant has given vacant possession of the agreed
premises to the park operator.
(2) A long-stay agreement for a fixed term is terminated when both
of the following events have occurred --
(a) the fixed term has ended;
15 (b) the long-stay tenant has given vacant possession of the
agreed premises to the park operator.
(3) In any other case, a long-stay agreement ends when --
(a) the State Administrative Tribunal terminates the
agreement under Part 6;
20 (b) a person whose title is superior to the title of the park
operator becomes entitled to possession of the agreed
premises;
(c) a mortgagee of the agreed premises takes possession of
the premises under the mortgage;
25 (d) the long-stay tenant abandons the agreed premises;
(e) the long-stay tenant gives vacant possession of the
premises under a written agreement with the park
operator to end the long-stay agreement; or
(f) the rights under the agreement of the park operator or
30 the long-stay tenant are ended by merger.
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Residential Parks (Long-stay Tenants) Bill 2004
Part 4 Termination of long-stay agreements
s. 51
51. Terms of continued long-stay agreement
If a long-stay agreement continues beyond the day on which it
would upon its terms have ended as a result of the passage of
time or the happening of an event, the same terms as last applied
5 before that day continue to apply unless the terms are modified
by the State Administrative Tribunal under Part 6.
52. Withholding rent in anticipation of release of security bond
A long-stay tenant must not fail or refuse to pay any rent due
under a long-stay agreement with the intention that the park
10 operator will recover the amount of the rent from the security
bond paid by the tenant.
Penalty: $5 000.
53. Failure to give vacant possession at end of fixed term
Failure by a long-stay tenant under a long-stay agreement for a
15 fixed term to give vacant possession of the agreed premises to
the park operator at the end of the fixed term does not constitute
a breach of the agreement.
54. Termination by park operator for non-payment of rent
(1) If a long-stay tenant does not pay rent in accordance with the
20 long-stay agreement, the park operator may give to the tenant,
in accordance with this section --
(a) a notice of termination; or
(b) a default notice and, if the rent is not paid in full on or
before the specified day in the default notice, a notice of
25 termination.
(2) The following provisions apply where the park operator gives a
notice of termination to the long-stay tenant under
subsection (1)(a) --
(a) the day specified in the notice of termination must be at
30 least 7 days after the day on which the notice of
termination is given to the tenant;
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Residential Parks (Long-stay Tenants) Bill 2004
Termination of long-stay agreements Part 4
s. 54
(b) if the park operator makes an application to the State
Administrative Tribunal under section 78 in relation to
the notice of termination, the park operator must
withdraw the application if the rent and the amount of
5 the filing fee for the application are both paid in full
more than 24 hours before the time set down for hearing
the application.
(3) The following provisions apply where the park operator gives a
default notice to the long-stay tenant under subsection (1)(b) --
10 (a) the day specified in the default notice must be at least
14 days after the day on which the default notice was
given to the tenant;
(b) if the park operator also gives the tenant a notice of
termination under subsection (1)(b), the day specified in
15 the notice of termination must be at least 7 days after the
specified day in the default notice;
(c) if the park operator makes an application to the State
Administrative Tribunal under section 78 in relation to
the notice of termination, the application may be heard
20 and determined even if the rent is paid in full before the
time set down for hearing the application.
(4) A notice of termination under subsection (1)(a) or (b) must --
(a) specify the amount of rent outstanding;
(b) specify the day on which the park operator requires the
25 long-stay tenant to give vacant possession of the agreed
premises to the park operator;
(c) tell the tenant that, if the amount is not paid in full on or
before the specified day, the park operator is entitled to
terminate the agreement under this Act; and
30 (d) comply with section 63.
(5) A default notice under subsection (1)(b) must --
(a) specify the amount of rent outstanding;
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Residential Parks (Long-stay Tenants) Bill 2004
Part 4 Termination of long-stay agreements
s. 55
(b) specify the day on or before which the park operator
requires the amount to be paid;
(c) tell the long-stay tenant that, if the amount is not paid in
full on or before the specified day, the park operator is
5 entitled to give to the tenant a notice of termination
under this Act; and
(d) comply with section 62.
(6) However, the day specified in a notice of termination given
under subsection (1)(a) or (b) may be --
10 (a) a day earlier than the last day of the fixed term of a fixed
term tenancy; or
(b) a day earlier than the last day of a period of a periodic
tenancy.
55. Termination by park operator for other breaches
15 (1) If a long-stay tenant breaches a term of the long-stay agreement
(except a term for the payment of rent) the park operator may
give a default notice to the tenant.
(2) The default notice must --
(a) describe the breach and state when it occurred;
20 (b) specify a day on or before which the breach must be
remedied;
(c) tell the long-stay tenant that, if the breach is not
remedied on or before the specified day, the park
operator is entitled to terminate the agreement under this
25 Act; and
(d) comply with section 62.
(3) The day specified in the default notice must be at least 14 days
after the day on which the notice is given to the long-stay
tenant.
30 (4) If the breach is not remedied on or before the day specified in
the default notice or within any further time agreed between the
page 32
Residential Parks (Long-stay Tenants) Bill 2004
Termination of long-stay agreements Part 4
s. 56
park operator and the long-stay tenant, the park operator may
give a notice of termination to the long-stay tenant.
(5) The notice of termination must --
(a) state the grounds for giving the notice;
5 (b) specify the day on or before which the park operator
requires the long-stay tenant to give vacant possession
of the agreed premises to the park operator; and
(c) comply with section 63.
(6) The day specified in the notice of termination must be at least
10 7 days after the day on which the notice was given to the
long-stay tenant.
(7) However, the day specified in the notice of termination may
be --
(a) a day earlier than the last day of the fixed term of a fixed
15 term tenancy; or
(b) a day earlier than the last day of a period of a periodic
tenancy.
56. Termination by park operator if residential park sold
(1) A park operator may give a notice of termination to a long-stay
20 tenant on the grounds that the park operator has entered into a
contract for the sale of park premises and is required under the
contract to give vacant possession of the agreed premises.
(2) The notice of termination must --
(a) state that the park operator intends to terminate the
25 long-stay agreement under this section;
(b) specify the day on or before which the park operator
requires the long-stay tenant to give vacant possession
of the agreed premises to the park operator; and
(c) comply with section 63.
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Residential Parks (Long-stay Tenants) Bill 2004
Part 4 Termination of long-stay agreements
s. 57
(3) The specified day must be --
(a) for an on-site home agreement -- at least 30 days after
the day on which the notice is given; and
(b) for a site-only agreement -- at least 60 days after the
5 day on which the notice is given.
(4) However, the specified day may be --
(a) a day earlier than the last day of the term of a fixed term
tenancy; or
(b) a day earlier than the last day of a period of a periodic
10 tenancy.
(5) A park operator must not knowingly give a notice of
termination that falsely claims or falsely implies that grounds
exist for terminating the agreement under this section.
Penalty: $10 000.
15 57. Termination by park operator without grounds
(1) A park operator may give a notice of termination to a long-stay
tenant to terminate the long-stay agreement without grounds.
(2) The notice of termination must --
(a) state that the park operator intends to terminate the
20 long-stay agreement under this section;
(b) specify the day on or before which the park operator
requires the long-stay tenant to give vacant possession
of the agreed premises to the park operator; and
(c) comply with section 63.
25 (3) The specified day must be --
(a) for an on-site home agreement -- at least 60 days after
the day on which the notice is given;
(b) for a site-only agreement -- at least 120 days after the
day on which the notice is given; and
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Residential Parks (Long-stay Tenants) Bill 2004
Termination of long-stay agreements Part 4
s. 58
(c) in any case, if the agreement is for a fixed term, not
before the end of the fixed term.
(4) However, the specified day may be a day earlier than the last
day of a period of a periodic tenancy.
5 (5) Unless the State Administrative Tribunal otherwise orders under
section 79, a notice of termination under this section is of no
effect if --
(a) an application for an order under section 77(1) fixing the
maximum rent for the agreed premises has been made
10 but has not been heard and determined; or
(b) an order under section 77(3) is in force in respect of the
agreed premises.
58. Notice not waived by acceptance of rent
A demand for, any proceeding for the recovery of, or
15 acceptance of, rent by a park operator after the park operator has
become aware of a breach by the long-stay tenant of a term of
the long-stay agreement (except a breach of a term for the
payment of rent) or has given the tenant notice of termination
under this Act does not operate as a waiver of the breach or of
20 the notice.
59. Termination of agreement by tenant without grounds
(1) A long-stay tenant may give a notice of termination to the park
operator to terminate the long-stay agreement without grounds.
(2) The notice of termination must --
25 (a) tell the park operator that the long-stay tenant intends to
terminate the long-stay agreement under this section;
(b) specify the day on which the tenant intends to give
vacant possession of the agreed premises to the park
operator; and
30 (c) comply with section 63.
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Residential Parks (Long-stay Tenants) Bill 2004
Part 4 Termination of long-stay agreements
s. 60
(3) The specified day must be --
(a) at least 21 days after the day on which the notice is
given to the park operator; and
(b) if the long-stay agreement is for a fixed term -- not
5 before the end of the fixed term.
60. Termination if agreement frustrated
(1) This section applies if agreed premises or shared premises --
(a) are partly or wholly destroyed but not as a result of a
breach of the long-stay agreement;
10 (b) become uninhabitable or unusable for the intended
purpose otherwise than as a result of a breach of the
long-stay agreement;
(c) cease to be lawfully usable for the intended purpose; or
(d) are compulsorily acquired by an authority under a
15 written law.
(2) The rent payable under the long-stay agreement is abated
appropriately.
(3) Either party to the long-stay agreement may give a notice of
termination to the other.
20 (4) The notice of termination must --
(a) state that the person giving the notice intends to
terminate the long-stay agreement under this section;
(b) specify the day on which the agreement is to be
terminated; and
25 (c) comply with section 63.
(5) If the park operator gives the notice of termination to the
long-stay tenant, the specified day must be at least 7 days after
the day on which the notice is given.
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Residential Parks (Long-stay Tenants) Bill 2004
Termination of long-stay agreements Part 4
s. 61
(6) If the long-stay tenant gives the notice of termination to the park
operator, the specified day must be at least 2 days after the day
on which the notice is given.
(7) However, in either case the specified day may be --
5 (a) a day earlier than the last day of the fixed term of a fixed
term tenancy; or
(b) a day earlier than the last day of a period of a periodic
tenancy.
61. When is long-stay tenant entitled to compensation
10 (1) A long-stay tenant is entitled to compensation for loss incurred
as a result of the termination of the long-stay agreement --
(a) under section 56 (termination by park operator if
residential park sold);
(b) under section 57 (termination by park operator without
15 grounds); or
(c) under an order under section 85 (termination on grounds
of hardship to park operator).
(2) A long-stay tenant under a site-only agreement is entitled to
compensation for loss incurred as a result of the termination of
20 the agreement under section 60 (termination if agreement
frustrated).
(3) The amount payable is the amount agreed between the long-stay
tenant and the park operator or, if the parties cannot agree, the
amount determined by the State Administrative Tribunal on an
25 application under section 90.
62. Form of default notice
A default notice must --
(a) be in writing signed by the park operator;
(b) identify the agreed premises; and
30 (c) include the prescribed information (if any).
page 37
Residential Parks (Long-stay Tenants) Bill 2004
Part 4 Termination of long-stay agreements
s. 63
63. Form of notice of termination
A notice of termination must --
(a) be in writing;
(b) be signed by the person who is giving the notice;
5 (c) identify the agreed premises; and
(d) include the prescribed information (if any).
64. Compensation for park operator when premises abandoned
If a long-stay tenant abandons the agreed premises, the park
operator is entitled to compensation by the tenant for any loss
10 (including loss of rent) incurred by the park operator as a result
of the abandonment.
65. Disposing of goods abandoned by tenant
(1) Goods that are or were owned by, or under the control of, a
long-stay tenant may be treated as abandoned goods if they
15 remain on the agreed premises for 2 days or more after the
termination of the long-stay agreement.
(2) The park operator may remove and destroy or otherwise dispose
of abandoned goods if --
(a) the goods are perishable foodstuffs; or
20 (b) the cost of the removal, storage and sale of the goods is
or is likely to be more than the estimated value of the
goods.
(3) If abandoned goods cannot be dealt with under subsection (2),
the park operator must store them appropriately in a safe place
25 for at least 60 days.
(4) Within 7 days after storing the abandoned goods, the park
operator must --
(a) send a notice to the long-stay tenant or former long-stay
tenant in accordance with the regulations; and
page 38
Residential Parks (Long-stay Tenants) Bill 2004
Termination of long-stay agreements Part 4
s. 66
(b) arrange for the notice or a summary of the notice to be
published in a newspaper circulating generally
throughout Western Australia.
(5) If the abandoned goods are not reclaimed within 60 days after
5 the day on which they were put into storage, the park operator
must as soon as practicable arrange for the goods to be sold at
public auction.
66. Tenant's right to reclaim abandoned goods put into storage
A person who has a legal right to goods put into storage under
10 section 65(3) may reclaim the goods at any time before they are
sold under section 65(5) on payment to the park operator of an
amount equal to the costs reasonably incurred by the park
operator in removing the goods from the agreed premises and
putting them into storage.
15 67. Title acquired by purchaser of abandoned goods
If abandoned goods are sold in accordance with section 65(5)
then, unless the purchaser of the abandoned goods has actual
notice of any interest in the goods of any person except the
former long-stay tenant, the purchaser acquires a good title to
20 the goods in defeasance of any such interest.
68. Park operator's liability for abandoned goods
If the park operator is found liable to the long-stay tenant for
abandoned goods that were destroyed or otherwise disposed of,
but the park operator establishes that he or she dealt with the
25 goods in reliance on a statement of the Commissioner to the
effect that, in the Commissioner's opinion, there are reasonable
grounds for believing that section 65(2) applies to the goods,
then the park operator is entitled to be paid an amount equal to
the amount of the liability out of the Rental Accommodation
30 Fund.
page 39
Residential Parks (Long-stay Tenants) Bill 2004
Part 4 Termination of long-stay agreements
s. 69
69. Disposition of proceeds of sale of abandoned goods
When abandoned goods are sold under section 65(5), the park
operator is entitled to retain out of the proceeds of the sale an
amount equal to the sum of --
5 (a) the reasonable costs of removing, storing and selling the
goods; and
(b) any amount owed to the park operator by the long-stay
tenant under the long-stay agreement.
70. Duty of mitigation following breach of agreement
10 The rules under the law of contract relating to mitigation of loss
or damage upon breach of a contract apply to a breach of a
long-stay agreement.
71. Recovery of vacant possession during tenancy period
A person must not enter the agreed premises during the tenancy
15 period for the purpose of recovering possession of the premises
or part of them from the long-stay tenant, whether the entry is
effected peaceably or otherwise, except in accordance with an
order of the State Administrative Tribunal.
Penalty: $20 000.
page 40
Residential Parks (Long-stay Tenants) Bill 2004
Sale of relocatable homes on site Part 5
s. 72
Part 5 -- Sale of relocatable homes on site
72. Long-stay tenant's right to sell relocatable home on site
(1) It is a term of a site-only agreement that the long-stay tenant is
entitled to sell a relocatable home owned by the tenant while it
5 is in place on the agreed premises, unless the agreement
expressly provides that on-site sales are prohibited.
(2) The long-stay tenant is entitled to display a "for sale" sign, but
must comply with any term of the site-only agreement or the
park rules that reasonably restricts the size and placement of the
10 sign.
(3) Before offering the relocatable home for sale, or displaying a
"for sale" sign, the long-stay tenant must tell the park operator
of the tenant's intention to offer the home for sale while it is on
the agreed premises.
15 (4) If the long-stay tenant is permitted under the site-only
agreement to assign the tenant's rights under the agreement to a
third party, the tenant must also tell the park operator whether
the tenant intends to assign those rights to the purchaser of the
relocatable home.
20 73. Park operator's obligations
If the park operator has been told of the long-stay tenant's
intentions in accordance with section 72(3) and (4), the park
operator must not unreasonably restrict potential buyers --
(a) from inspecting the relocatable home; and
25 (b) if the tenant intends to assign his or her rights under the
agreement -- from inspecting the shared premises.
Penalty: $20 000.
74. When park operator acts as agent in sale on site
(1) A park operator may act as a selling agent for a long-stay tenant
30 who wishes to sell a relocatable home on the agreed premises if
page 41
Residential Parks (Long-stay Tenants) Bill 2004
Part 5 Sale of relocatable homes on site
s. 75
the park operator and the tenant make a written agreement for
the park operator to do so.
(2) The park operator is entitled to be paid a reasonable commission
by the long-stay tenant when the relocatable home is sold.
5 (3) The selling agency agreement between the park operator and the
long-stay tenant must specify the amount of the commission to
be paid, or the method of calculating the amount.
(4) However, no commission is payable if the relocatable home is
not sold or if it is sold otherwise than as a result of the agency of
10 the park operator under the selling agency agreement.
75. Park operator's authority to act as selling agent
(1) When a park operator acts as a selling agent under a selling
agency agreement, the park operator is not required to hold --
(a) a licence of an agent under the Real Estate and Business
15 Agents Act 1978; or
(b) a dealer's licence under the Motor Vehicle Dealers
Act 1973.
(2) However, when the park operator receives any money under the
selling agency agreement (except commission payable to the
20 park operator under the agreement) the park operator must --
(a) deposit the money in a separate ADI account opened in
the name of the park operator and the long-stay tenant
and entitled "sale trust account"; and
(b) when the sale is completed, pay the proceeds at the
25 direction of the tenant after deducting in accordance
with the selling agency agreement any amounts owing to
the park operator by way of expenses or commission.
(3) The Real Estate and Business Agents Act 1978 section 68(2),
(3), (4), (5) and (6) apply to the sale trust account as if a
30 reference in those subsections to an agent and to a trust account
were a reference to the park operator and to the sale trust
account respectively.
page 42
Residential Parks (Long-stay Tenants) Bill 2004
Dispute resolution Part 6
s. 76
Part 6 -- Dispute resolution
76. Breaches of agreement and other disputes
(1) This section applies in relation to a party to any of the
following --
5 (a) an agreement for an option to enter into a long-stay
agreement;
(b) a long-stay agreement;
(c) a selling agency agreement.
(2) The party may apply to the State Administrative Tribunal for
10 relief if --
(a) a breach of the agreement has occurred; or
(b) any other dispute has arisen under or in connection with
the agreement or in connection with any payment to be
made under or in connection with the agreement.
15 (3) On hearing an application under subsection (2) or another
provision of this Part, the State Administrative Tribunal may
give such directions and make such orders as it considers
appropriate.
(4) Without limiting subsection (3), the State Administrative
20 Tribunal may do any or all of the following --
(a) restrain any action in breach of a long-stay agreement;
(b) require any action in performance of a long-stay
agreement;
(c) revoke or alter a park rule, or give directions modifying
25 the operation of a park rule in relation to a long-stay
tenant;
(d) order the payment of any amount payable under a
long-stay agreement;
(e) order the payment of compensation to a long-stay tenant
30 or prospective long-stay tenant for loss arising from a
failure of the park operator to comply with section 8(1);
page 43
Residential Parks (Long-stay Tenants) Bill 2004
Part 6 Dispute resolution
s. 77
(f) order the repayment to a party to a long-stay agreement
of an amount paid by the party to the other party under a
mistake of law or fact;
(g) order the payment of compensation for loss or injury
5 (except personal injury) caused by a breach of the
agreement;
(h) determine the amount of rent payable under a long-stay
agreement, having regard to the terms of the agreement;
(i) authorise the payment to the tribunal of an amount of
10 rent payable under the agreement until the agreement
has been complied with, or an application for
compensation has been determined;
(j) order that rent paid to the tribunal is to be paid out,
towards the cost of remedying a breach of the
15 agreement, or towards the amount of any compensation,
or otherwise as the tribunal considers appropriate;
(k) make such other orders as the tribunal considers
appropriate.
77. Orders for reduction of rent
20 (1) A long-stay tenant may apply to the State Administrative
Tribunal for an order reducing the amount of rent payable for
the agreed premises on the grounds --
(a) that since the long-stay agreement was entered into, or
was last renewed or extended, there has been, without
25 any default on the part of the tenant, a significant
reduction in the size or quality of the agreed premises,
or in the number or quality of the chattels provided with
the agreed premises, or in the extent or quality of the
shared premises or the facilities provided as part of the
30 shared premises; or
(b) that in determining the amount of rent payable for the
agreed premises the park operator was wholly or partly
motivated by a desire for the tenancy to be terminated.
page 44
Residential Parks (Long-stay Tenants) Bill 2004
Dispute resolution Part 6
s. 77
(2) The application may be made whether or not the long-stay
tenant has paid or agreed to pay the amount in question.
(3) The State Administrative Tribunal may order that the amount of
rent payable for the agreed premises is reduced if satisfied
5 that --
(a) the grounds of the application are made out; and
(b) the amount is excessive in the circumstances.
(4) When deciding whether or not to make the order, the State
Administrative Tribunal must have regard to --
10 (a) the amounts of rent generally payable for comparable
premises in the locality or a similar locality;
(b) the estimated capital value of the agreed premises at the
date of the application;
(c) the amount of the outgoings to be borne by the park
15 operator in respect of the agreed premises;
(d) the estimated cost of any services provided by the park
operator or the long-stay tenant under the long-stay
agreement;
(e) the value and nature of any chattels provided for the use
20 of the tenant with the agreed premises or as part of the
shared premises;
(f) the standard and nature of the facilities and amenities
that are available for the use of the tenant as part of the
shared premises;
25 (g) in the case of an on-site home agreement -- the standard
of accommodation and amenities provided in the agreed
premises and the state of repair and general condition of
the agreed premises;
(h) any other relevant matter.
page 45
Residential Parks (Long-stay Tenants) Bill 2004
Part 6 Dispute resolution
s. 78
(5) When the State Administrative Tribunal makes the order, it
must --
(a) specify the maximum amount of rent payable by the
long-stay tenant for the agreed premises;
5 (b) specify the day on and after which the reduced amount
is payable, being a day not earlier than the day on which
the tenant applied for the reduction in rent; and
(c) specify the minimum period for which the reduced
amount is payable.
10 78. Orders for vacant possession if rent not paid
(1) This section applies where --
(a) a park operator has given a notice of termination to a
long-stay tenant under section 54(1)(a) or (b) on the
grounds that the tenant has not paid rent in accordance
15 with the long-stay agreement; and
(b) the tenant does not give vacant possession of the agreed
premises to the park operator on the day specified in the
notice of termination.
(2) The park operator may apply to the State Administrative
20 Tribunal for --
(a) an order terminating the long-stay agreement; and
(b) an order requiring the long-stay tenant to give vacant
possession of the premises to the park operator.
(3) An application cannot be made --
25 (a) before the notice of termination is given to the long-stay
tenant; or
(b) more than 30 days after the day specified in the notice of
termination as the day on which the park operator
requires the tenant to give vacant possession of the
30 agreed premises to the park operator.
page 46
Residential Parks (Long-stay Tenants) Bill 2004
Dispute resolution Part 6
s. 79
(4) If, under section 54(1)(a), the park operator gave to the
long-stay tenant a notice of termination only, then, on hearing
the application, the State Administrative Tribunal may make the
orders if --
5 (a) the notice of termination was given in accordance with
this Act;
(b) the day on which the orders are made is at least 21 days
after the day on which the notice of termination was
given to the tenant; and
10 (c) the park operator was not required to withdraw the
application under section 54(2)(b).
(5) If, under section 54(1)(b), the park operator gave to the
long-stay tenant both a default notice and a notice of
termination, the State Administrative Tribunal may make the
15 orders if --
(a) the notices were given in accordance with this Act; and
(b) the day on which the orders are made is at least 21 days
after the day on which the default notice was given to
the tenant.
20 (6) The State Administrative Tribunal must specify in an order the
day on which the order takes effect.
(7) The day specified in the order must be at least 7 days after the
day on which the order is made.
(8) However, the day specified in the order may be --
25 (a) a day earlier than the last day of the fixed term of a fixed
term tenancy; or
(b) a day earlier than the last day of a period of a periodic
tenancy.
79. Tribunal's power during fair rent proceedings
30 For the purposes of section 57(5), the State Administrative
Tribunal may, on the application of the park operator, authorise
page 47
Residential Parks (Long-stay Tenants) Bill 2004
Part 6 Dispute resolution
s. 80
the park operator to give a notice of termination to a long-stay
tenant under section 57(1) if the tribunal is satisfied that the
park operator is not wholly or partly motivated to give the
notice of termination by an application made by the tenant for
5 an order under section 77, or by the making or effect of an order
that is in force under section 77.
80. Orders for vacant possession at end of fixed term
(1) This section applies where --
(a) the fixed term under a long-stay agreement for a fixed
10 term has ended;
(b) there is no agreement between the long-stay tenant and
the park operator to continue the tenancy as a periodic
tenancy; and
(c) the tenant has not given vacant possession of the agreed
15 premises to the park operator.
(2) The park operator may apply to the State Administrative
Tribunal for --
(a) an order terminating the agreement; and
(b) an order for the long-stay tenant to give vacant
20 possession of the premises to the park operator.
(3) The State Administrative Tribunal may make the orders.
(4) The State Administrative Tribunal must specify in an order the
day on which the order takes effect.
(5) The day specified under subsection (4) must be at least 7 days
25 after the day on which the order is made.
(6) However, the State Administrative Tribunal may suspend the
operation of the order for a further period of not more than
30 days, having regard to the relative hardship that would be
caused --
30 (a) to the owner by suspending the orders; and
(b) to the long-stay tenant by not suspending the orders.
page 48
Residential Parks (Long-stay Tenants) Bill 2004
Dispute resolution Part 6
s. 81
81. Orders for vacant possession on other grounds
(1) This section applies where --
(a) a park operator has given a notice of termination to a
long-stay tenant (except a notice of termination under
5 section 54), or a long-stay tenant has given a notice of
termination to the park operator; and
(b) the tenant does not give vacant possession of the agreed
premises to the park operator on the specified day.
(2) The park operator may apply to the State Administrative
10 Tribunal for --
(a) an order terminating the agreement; and
(b) an order for the long-stay tenant to give vacant
possession of the premises to the park operator.
(3) An application must be made within 30 days after the specified
15 day.
(4) The State Administrative Tribunal may make the orders if --
(a) the notice of termination was given in accordance with
this Act;
(b) where the notice was given on the grounds that the
20 long-stay tenant has breached the long-stay
agreement -- the State Administrative Tribunal is
satisfied that the grounds are made out and that the
breach is in all the circumstances such as to justify
terminating the agreement; and
25 (c) if the notice was given for any other reason -- the
tribunal is satisfied that terminating the agreement is
justified in all the circumstances.
(5) However, the State Administrative Tribunal may refuse to make
the orders if satisfied --
30 (a) that the park operator was wholly or partly motivated to
give the notice by the fact that the long-stay tenant had
complained to a public authority about the park
page 49
Residential Parks (Long-stay Tenants) Bill 2004
Part 6 Dispute resolution
s. 81
operator's conduct in relation to the agreement, or taken
steps to secure or enforce his or her rights as a tenant
under the agreement;
(b) if the notice was given by the owner on the grounds of a
5 breach by the tenant -- that the tenant has remedied the
breach, but when making the decision the tribunal must
take into account any previous breaches of the
agreement by the tenant; or
(c) if the notice was given by the owner under section 60(3)
10 on the grounds of frustration of the agreement -- that
the consequences of continuing the agreement would not
be unduly burdensome to the park operator.
(6) If the State Administrative Tribunal makes the orders, it may
suspend the operation of the orders for not more than 30 days if
15 satisfied that it is desirable in the circumstances to do so having
regard to the relative hardship that would be caused --
(a) to the park operator by suspending the orders; or
(b) to the long-stay tenant by refusing to suspend the orders.
(7) Where the park operator gave the notice of termination to the
20 long-stay tenant, and the State Administrative Tribunal is
satisfied that the tenant had, within the 6 months before the
notice was given to him or her, complained to a public authority
about the park operator's conduct in relation to the agreement,
or taken steps to secure or enforce his or her rights as a tenant
25 under the agreement, the burden is on the park operator to prove
that the park operator was not to any extent motivated by that
fact when giving notice to the tenant.
(8) When the State Administrative Tribunal makes the orders, the
tribunal must specify the day on which the orders take effect.
30 (9) The specified day must be no later than 7 days after the day on
which the order is made.
(10) The Limitation Act 1935 does not apply to an application under
this section.
page 50
Residential Parks (Long-stay Tenants) Bill 2004
Dispute resolution Part 6
s. 82
82. Tenant's protection against holder of superior title
(1) The State Administrative Tribunal must not make an order for
recovery of possession of agreed premises unless the tribunal is
satisfied --
5 (a) as to whether or not a person has possession of the
agreed premises as a long-stay tenant under a long-stay
agreement or as a former tenant holding over after the
termination of a long-stay agreement, not being the
immediate tenant or former tenant of the applicant for
10 the order; and
(b) if so, that the tenant or former tenant has had reasonable
notice of the application.
(2) A person who has possession of the agreed premises as
described in subsection (1) may apply to the State
15 Administrative Tribunal for an order vesting a tenancy of the
agreed premises in the person.
(3) An application under subsection (2) may be made within a
reasonable time after the person has notice of the proceedings
for the recovery of possession, or notice of the making of the
20 order for recovery of possession, as the case may be.
(4) The State Administrative Tribunal may make an order vesting
the tenancy in the applicant on such terms and conditions as the
tribunal thinks appropriate.
83. Orders to terminate agreement if tenant is causing damage
25 or injury
(1) A park operator may apply to the State Administrative Tribunal
for an order terminating a long-stay agreement on the grounds
that the long-stay tenant has intentionally or recklessly caused
or permitted, or is likely intentionally or recklessly to cause or
30 permit --
(a) serious damage to park premises; or
page 51
Residential Parks (Long-stay Tenants) Bill 2004
Part 6 Dispute resolution
s. 84
(b) injury to the park operator or to an agent of the park
operator, or to any other person lawfully on park
premises.
(2) The State Administrative Tribunal may make the order if
5 satisfied that the grounds are made out.
(3) If the State Administrative Tribunal makes the order, it must
also order the long-stay tenant to give vacant possession of the
agreed premises to the park operator.
(4) An order under this section takes effect immediately.
10 84. Orders to terminate agreement for breach by park operator
(1) A long-stay tenant may apply to the State Administrative
Tribunal for an order to terminate the long-stay agreement on
the grounds that the park operator has breached a term of the
agreement.
15 (2) The State Administrative Tribunal may make the order if it is
satisfied that --
(a) the grounds are made out; and
(b) the breach is in all the circumstances such as to justify
terminating the long-stay agreement.
20 (3) The State Administrative Tribunal must specify in the order the
day on which the long-stay tenant is to give vacant possession
of the agreed premises to the park operator.
85. Termination on grounds of hardship to park operator
(1) A park operator may apply to the State Administrative Tribunal
25 for an order under subsection (2).
(2) The State Administrative Tribunal may make an order
terminating a long-stay agreement if satisfied that the park
operator would, in the circumstances of the case, suffer undue
hardship if required to terminate the agreement under any other
30 provision of this Act.
page 52
Residential Parks (Long-stay Tenants) Bill 2004
Dispute resolution Part 6
s. 86
(3) When making an order, the State Administrative Tribunal must
specify in it the day on which the long-stay tenant is to give
vacant possession of the agreed premises to the park operator.
86. Orders when premises abandoned by tenant
5 (1) The park operator may apply to the State Administrative
Tribunal for a declaration that a long-stay tenant has abandoned
the agreed premises.
(2) The State Administrative Tribunal may make the declaration if
there are reasonable grounds for believing that the long-stay
10 tenant has abandoned the agreed premises.
(3) If the State Administrative Tribunal makes the declaration, the
tribunal --
(a) must specify in it the day on which the long-stay tenant
is to be taken to have abandoned the agreed premises;
15 and
(b) may specify the amount of compensation to which the
park operator is entitled under section 64.
87. Disposing of proceeds of sale of abandoned goods
(1) Where the proceeds of the sale of abandoned goods exceed the
20 amount to which the park operator is entitled under section 69,
the park operator may apply to the State Administrative
Tribunal to determine the amount of the balance.
(2) If the amount specified in the determination is paid to the State
Administrative Tribunal, the receipt of the tribunal for the
25 amount is sufficient discharge to the park operator of the park
operator's liability in respect of the proceeds of the sale.
(3) Amounts paid to the State Administrative Tribunal are payable
to the Rental Accommodation Fund.
page 53
Residential Parks (Long-stay Tenants) Bill 2004
Part 6 Dispute resolution
s. 88
88. Park operator's claim if sale proceeds insufficient
(1) Where the proceeds of the sale of abandoned goods are
insufficient to meet the costs of removing, storing and selling
the goods, the park operator may apply to the State
5 Administrative Tribunal for an order under subsection (2).
(2) The State Administrative Tribunal may make an order for the
payment to the park operator of an amount equal to the
difference between the proceeds of the sale and the reasonable
costs of removing, storing and selling the goods if --
10 (a) the park operator has obtained a written statement from
the Commissioner to the effect that, in the opinion of the
Commissioner, section 65(2) does not apply to the
goods; and
(b) the tribunal is satisfied that the amount of the costs
15 exceeds the amount of the proceeds.
(3) The amount specified in the order is payable to the park
operator out of the Rental Accommodation Fund.
89. Recovery by owner of value of auctioned goods
(1) If money is paid into the Rental Accommodation Fund from the
20 proceeds of the sale of abandoned goods, a person who had a
legal right to the goods before they were sold may apply to the
State Administrative Tribunal for the amount to be paid to him
or her.
(2) The State Administrative Tribunal may order the amount to be
25 paid to the applicant out of the Rental Accommodation Fund if
satisfied that the applicant is entitled to it.
90. Determination of compensation payable to long-stay tenant
(1) A party to a long-stay agreement may apply to the State
Administrative Tribunal for a determination of the amount of
30 compensation to which a long-stay tenant is entitled under
section 61 in relation to the agreement.
page 54
Residential Parks (Long-stay Tenants) Bill 2004
Dispute resolution Part 6
s. 91
(2) When determining the amount of compensation to be paid to the
long-stay tenant on the termination of a site-only agreement, the
State Administrative Tribunal may have regard to the
following --
5 (a) the cost of removing the relocatable home from the
agreed premises, including the costs incurred in
disconnecting telephone, gas, electricity, water or other
services;
(b) the cost of towing or carrying the relocatable home for
10 the distance from the residential park to the other site, or
for 500 km, whichever is shorter;
(c) the cost of erecting the relocatable home on another site,
including the costs incurred in connecting telephone,
gas, electricity, water or other services;
15 (d) the cost of establishing the relocatable home at the new
site, including any costs reasonably incurred in
landscaping the site to a standard comparable to that of
the previous site.
91. Orders exempting persons from the operation of this Act
20 (1) A park operator or a long-stay tenant or prospective long-stay
tenant may apply to the State Administrative Tribunal for an
order under subsection (2).
(2) The State Administrative Tribunal may order that a provision of
this Act does not apply, or applies in a modified manner as
25 specified in the order, in relation to --
(a) the long-stay agreement or proposed long-stay
agreement; or
(b) the park premises or any part of them.
92. Proceedings instituted or defended by Commissioner
30 (1) The Commissioner may take part in proceedings under this Act
with a view to enforcing or protecting the rights under this Act
page 55
Residential Parks (Long-stay Tenants) Bill 2004
Part 6 Dispute resolution
s. 93
of a party to a long-stay agreement (in this Part called the
"original party") if --
(a) the Commissioner is satisfied that there is a cause of
action and that it is in the public interest to take part in
5 the proceedings;
(b) the Commissioner has obtained the written consent of
both the original party and the Minister; and
(c) if the long-stay agreement has ended -- the original
party made a complaint to the Commissioner within
10 3 months after the day on which it ended.
(2) For the purposes of subsection (1), the Commissioner may --
(a) institute proceedings on behalf of the original party;
(b) defend any proceedings brought against the original
party; or
15 (c) assume the conduct of proceedings that have already
been commenced by or against the original party.
(3) The original party cannot withdraw his or her consent without
the consent of the Commissioner.
(4) The Minister may make his or her consent subject to conditions.
20 93. Conduct of legal proceedings by Commissioner
(1) In proceedings undertaken by the Commissioner under
section 92, the Commissioner has, on behalf of the original
party, in all respects the same rights in, and control over, the
proceedings as the original party would have had in the conduct
25 of the proceedings, including the right to settle any action or
part of any action.
(2) The Commissioner may conduct the proceedings as the
Commissioner thinks fit, without consulting or seeking the
consent of the original party.
page 56
Residential Parks (Long-stay Tenants) Bill 2004
Dispute resolution Part 6
s. 94
(3) Where the Commissioner assumes the conduct of proceedings
already commenced by or against the original party, the State
Administrative Tribunal --
(a) must, on the application of the Commissioner, order the
5 substitution of the Commissioner for the original party
as a party to the proceedings; and
(b) may make other orders or give directions as it thinks fit.
(4) If any party to the proceedings alleges another cause of action,
or if the original party has another cause of action, then, on the
10 application of the Commissioner, the State Administrative
Tribunal --
(a) must order that the proceedings for the other cause of
action are to be heard separately;
(b) must order that the original party is in his or her own
15 right a party to the proceedings for the other cause of
action; and
(c) may make other orders or give directions as it thinks fit.
94. Payment of costs and other amounts
(1) Any amount (excluding costs) recovered by the Commissioner
20 in proceedings to which the Commissioner is a party under
section 92 belongs and must be paid to the original party
without deduction.
(2) Any amount awarded against the original party is payable by
and recoverable from the original party.
25 (3) The costs of the proceedings must be borne by or paid to and
retained by the Commissioner, as the case requires.
(4) Any amount that the Commissioner becomes liable to pay as a
result of the operation of this section is charged to the
Consolidated Fund, and the Consolidated Fund is appropriated
30 accordingly.
page 57
Residential Parks (Long-stay Tenants) Bill 2004
Part 6 Dispute resolution
s. 95
95. Evidence in proceedings undertaken by Commissioner
(1) In proceedings to which the Commissioner is a party under
section 92, a statement purporting to be signed by the
Commissioner to the effect that the Commissioner is satisfied
5 that there is a cause of action and that it is in the public interest
to institute or assume the conduct of the proceedings, as the case
may be, on behalf of the original party is proof, in the absence
of evidence to the contrary, that the Commissioner instituted or
assumed the conduct of the proceedings in accordance with
10 section 92.
(2) In proceedings to which the Commissioner is a party, a
statement purporting to give the consent of the original party, or
the consent of the Minister, to the institution, defence or
assumption of the conduct of the proceedings by the
15 Commissioner is sufficient proof, in the absence of evidence to
the contrary, that the consent was given for the purposes of
section 92(1)(b).
page 58
Residential Parks (Long-stay Tenants) Bill 2004
Other matters Part 7
s. 96
Part 7 -- Other matters
96. The Department's functions
(1) Without limiting the Consumer Affairs Act 1971 section 17, the
Department has the following functions --
5 (a) the investigation of and conduct of research into matters
relating to the interests of parties to long-stay
agreements generally or any particular party or parties;
(b) the publication of reports and the dissemination of
information on matters relating to the interests of parties
10 to long-stay agreements;
(c) the giving of advice to persons on the provisions of this
Act or any other law relating to or affecting the interests
of parties to long-stay agreements;
(d) the investigation, upon the complaint of a party to a
15 long-stay agreement or otherwise, of an offence against
this Act or of an infringement of a party's rights arising
out of any long-stay agreement and the taking of action
by negotiation, prosecution of an offence or otherwise;
(e) the making of reports to the Minister on matters referred
20 to the Department by the Minister and any other matters
of importance investigated by the Department for the
purposes of this Act.
(2) The Consumer Affairs Act 1971 section 24 applies to
information acquired under this Act, and for that purpose the
25 first reference in subsection (2) of that section to "this Act" is to
be read as a reference to the Residential Parks (Long-stay
Tenants) Act 2004.
97. Delegation by Commissioner
The Commissioner may by notice in the Gazette, delegate any
30 of the Commissioner's functions under this Act, (except this
power of delegation) to the holder of a specified office in the
page 59
Residential Parks (Long-stay Tenants) Bill 2004
Part 7 Other matters
s. 98
public service of the State or to any specified officer of an
agency or instrumentality of the Crown.
98. Position of the Crown
This Act binds the Crown.
5 99. Time for commencement of offence proceedings
Proceedings for an offence against this Act may be commenced
within 2 years after the day on which the offence is alleged to
have been committed.
100. Service of documents
10 (1) A document that is required or permitted to be given to a person
under this Act may be --
(a) given to the person personally; or
(b) sent by post addressed to the person at the person's last
known place of residence, employment or business.
15 (2) The park operator may give a document to a long-stay tenant for
the purposes of the long-stay agreement by giving it to --
(a) a person who is apparently 17 years of age or older and
who is apparently residing on the agreed premises; or
(b) the person who ordinarily pays rent under the
20 agreement.
(3) If it is not practicable to give a document to a person personally,
and the person's address is unknown, the document is to be
treated as having been given to the person if a copy of the
document is published in a daily newspaper circulating
25 throughout Western Australia.
(4) If there are 2 or more park operators or 2 or more long-stay
tenants who are parties to a long-stay agreement, the document
may be given to the park operators or the tenants for the
purposes of the long-stay agreement by giving it to any one of
30 them.
page 60
Residential Parks (Long-stay Tenants) Bill 2004
Other matters Part 7
s. 101
101. Terms on which ADI holds tenancy bond amounts
A tenancy bond paid into an ADI account is held by the ADI on
the following terms --
(a) interest at a rate not less than the prescribed rate accrues
5 on the amount for the period during which the amount is
held;
(b) the ADI must pay an amount equal to the amount of
interest accrued at the prescribed rate into the Rental
Accommodation Fund in accordance with the
10 regulations;
(c) if interest accrues on the amount at a higher rate than the
prescribed rate, the ADI must pay the difference
between the amount of interest accrued at the prescribed
rate and the amount of interest accrued at the higher rate
15 to the long-stay tenant in accordance with the
regulations;
(d) the ADI may deduct from an amount paid under
paragraph (b) or (c) an amount not exceeding the
prescribed fee;
20 (e) the bond amount must be paid out in accordance with
the regulations.
102. Information from ADI about tenancy bond accounts
(1) The Commissioner may, by notice to the manager of an
authorised financial institution, require the manager to give to
25 the Commissioner such information as the Commissioner
requires in relation to a tenancy bond account, including
information as to the balances of and amounts of interest paid
on the account.
(2) A notice --
30 (a) must be in writing;
(b) must specify the time at or within which the information
is to be given;
page 61
Residential Parks (Long-stay Tenants) Bill 2004
Part 7 Other matters
s. 102
(c) may require the information to be --
(i) given in writing;
(ii) certified as correct by a registered auditor
specified in the requirement;
5 (iii) given at or sent or delivered to a place specified
in the notice;
(iv) sent or delivered by any means specified in the
requirement; and
(v) given on oath or affirmation or by statutory
10 declaration;
and
(d) state that the manager or other officer is required under
this Act to give the information.
(3) A person must not, without reasonable excuse, refuse or fail to
15 comply with a requirement.
Penalty: $15 000.
(4) A person must not give information in response to a
requirement that the person knows is false or misleading in a
material particular.
20 Penalty: $15 000.
(5) It is a defence in proceedings for an offence against
subsection (3) for the person to show that --
(a) the notice under subsection (2)(a) did not state that the
person was required under this Act to give the
25 information; or
(b) the time specified in the requirement did not give the
person sufficient notice to enable compliance with the
requirement.
(6) A person is not entitled to refuse to give the information on the
30 grounds that the information could tend to incriminate the
person or render the person liable to a penalty.
page 62
Residential Parks (Long-stay Tenants) Bill 2004
Other matters Part 7
s. 103
(7) Despite subsection (6), information given under this section is
not admissible in evidence in any proceedings against the
person except proceedings for an offence against subsection (4).
103. Responsibilities of bond administrator
5 The bond administrator must --
(a) pay into the Rental Accommodation Fund amounts of
tenancy bond paid to the bond administrator under this
Act;
(b) keep records in relation to each amount showing the
10 name and address of the park operator and the long-stay
tenant for whom the amount is held; and
(c) pay out the bond in accordance with the regulations.
104. Officials protected from liability
No liability attaches to the Commissioner or to a delegate of the
15 Commissioner, or to an officer of the Department for act or
omission of the Commissioner, the delegate or officer if the act
or omission was done in good faith and in the performance or
purported performance of a function of the Commissioner or the
Department under this Act.
20 105. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed, for giving effect to the
purposes of this Act.
25 (2) Without limiting the generality of subsection (1), regulations
made under that subsection may --
(a) require the parties to a long-stay agreement to record on
an inspection sheet, before the commencement, and after
the termination, of the tenancy, their opinions of the
30 state of the premises and prescribe the form of such
page 63
Residential Parks (Long-stay Tenants) Bill 2004
Part 7 Other matters
s. 106
inspection sheets and the manner in which the parties
record their opinions;
(b) prescribe the matters for which a park operator is
entitled to charge long-stay tenants a fee that is
5 additional to any amount payable under the long-stay
agreement;
(c) prescribe the maximum amount that is payable in
respect of a matter prescribed under paragraph (b);
(d) require the provision of information by the owner to the
10 long-stay tenant or prospective long-stay tenant at the
time of entering into the long-stay agreement;
(e) provide for payment out of security bond accounts of
security bond amounts and amounts of accrued interest,
and for the repayment or distribution of the amounts
15 paid out; and
(f) prescribe the matters to be provided for in park rules,
and may regulate the manner in which the provision for
those matters is to be made.
(3) Regulations made under subsection (1) may --
20 (a) impose a penalty not exceeding $5 000 for offences
against the regulations; and
(b) provide for penalties not exceeding $500 for each
separate and further offence under the Interpretation
Act 1984 section 71(2).
25 106. Review of the Act
(1) The Minister must arrange for a review of the operation of this
Act to be carried out as soon as practicable after the end of the
period of 5 years beginning on the commencement of the Act.
(2) The Minister must then, as soon as practicable --
30 (a) prepare a report based on the review; and
(b) arrange for the report to be laid before each House of
Parliament.
page 64
Residential Parks (Long-stay Tenants) Bill 2004
Other matters Part 7
s. 107
107. Transitional provisions
(1) Where a long-stay agreement was made before the
commencement of this Act for a fixed term that ends after that
commencement --
5 (a) if the agreement was made in writing -- the agreement
has effect according to its terms as if this Act had not
been made; and
(b) if the agreement was made orally -- the agreement has
effect subject to this Act.
10 (2) Where a long-stay agreement was made before the
commencement of this Act for a periodic tenancy that is
continuing at the time of that commencement, and the
agreement is not terminated in accordance with this Act within
3 months after that commencement --
15 (a) the park operator must attempt to make with the
long-stay tenant a long-stay agreement that complies
with this Act; and
(b) if the tenant refuses to execute such an agreement, either
party may apply to the State Administrative Tribunal for
20 the termination of the original agreement, or for a
determination in respect of the terms of the proposed
new agreement, at the discretion of the State
Administrative Tribunal.
(3) A park operator who does not take appropriate steps to make a
25 long-stay agreement as mentioned in subsection (2)(a) is guilty
of an offence.
Penalty: $10 000.
(4) Where, immediately before the commencement of this Act, a
person held an option to make, renew or extend a long-stay
30 agreement, or to assign or otherwise transfer rights under a
long-stay agreement, the option may be exercised, at the
discretion of the person, as if this Act had not been made.
page 65
Residential Parks (Long-stay Tenants) Bill 2004
Part 7 Other matters
s. 107
(5) Where this Act applies to a long-stay agreement that was made
before the commencement of this Act --
(a) if any proceedings instituted in relation to the agreement
under the Residential Tenancies Act 1987 before the
5 commencement of this Act have not been completed,
that Act continues to apply to the proceedings as if this
Act had not been made;
(b) proceedings may be brought subject to and in
accordance with this Act in respect of a cause of action
10 that arose in connection with the long-stay agreement
before the commencement of this Act and that was not,
immediately before that commencement, the subject of
proceedings under the Residential Tenancies Act 1987;
(c) a notice of termination given in relation to the
15 agreement under the Residential Tenancies Act 1987
before the commencement of this Act has effect and
may be enforced as if this Act had not been made;
(d) any process begun before the commencement of this Act
by which the rent payable under the agreement may be
20 increased may be continued and completed, and has
effect to increase the rent, as if this Act had not been
made, but subject to any order or determination of the
State Administrative Tribunal under Part 6;
(e) no civil or criminal liability is incurred as a result of the
25 application of this Act to the agreement for anything
done or not done before the commencement of this Act;
and
(f) any amount of bond money held, at the commencement
of this Act, in relation to the agreement under the
30 Residential Tenancies Act 1987 is to be treated as if it
were held under this Act.
page 66
Residential Parks (Long-stay Tenants) Bill 2004
Other matters Part 7
s. 108
108. The Residential Tenancies Act 1987 amended
(1) The amendments in this section are to the Residential Tenancies
Act 1987*.
[* Reprinted as at 22 January 1999.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 328-9.]
(2) Section 5(5) is repealed.
(3) After Schedule 1 clause 3(2)(a) the following paragraph is
inserted --
10 "
(aa) money payable to the fund under
section 87(3), 88(3) or 103(a) of the Residential
Parks (Long-stay Tenants) Act 2004;
".
15 (4) After Schedule 1 clause 3(3)(a) the following paragraphs are
inserted --
"
(aa) money to be paid out of the fund under section 68
of the Residential Parks (Long-stay Tenants)
20 Act 2004 or under an order under section 88(3) of
that Act;
(ab) in reimbursement of the costs and expenses incurred
for the purposes of the Residential Parks (Long-stay
Tenants) Act 2004 by the bond administrator, bond
25 agents, the Department and the Commissioner in
carrying out their respective functions;
".
(5) Schedule 1 clause 3(3)(b) is amended by inserting after "this
Act" --
30 " or the Residential Parks (Long-stay Tenants) Act 2004 ".
page 67
Residential Parks (Long-stay Tenants) Bill 2004
Glossary
Glossary
[s. 3]
In this Act, unless the contrary intention appears --
"abandoned goods" means goods that may be treated as abandoned
5 goods under section 65(1);
"ADI", which stands for authorised deposit-taking institution, has the
meaning given to that term in the Banking Act 1959 section 5 of
the Commonwealth;
"ADI account" means an account with an ADI (authorised
10 deposit-taking institution);
"agreed premises" means --
(a) in relation to an on-site home agreement -- the site, the
on-site home, any other structures on the site that the
long-stay tenant is entitled to use or occupy under the
15 agreement, and any fixtures, fittings or chattels that are
provided under the agreement for the exclusive use of the
long-stay tenant; and
(b) in relation to a site-only agreement means the site, any
structures on the site that are provided by the park
20 operator and that the long-stay tenant is entitled to use or
occupy under the agreement, and any fixtures, fittings or
chattels that are provided under the agreement for the
exclusive use of the long-stay tenant;
"authorised financial institution" has the definition given to that
25 term in the Residential Tenancies Act 1987 Schedule 1 clause 1;
"bond administrator" means the chief executive officer of the
Department in his or her capacity as bond administrator under
the Residential Tenancies Act 1987;
"bond agent" means a public officer appointed by the bond
30 administrator to be his or her agent for the purposes of the
definition of "authorised agent" in the Residential Tenancies
Act 1987 Schedule 1 clause 1;
"caravan park" means --
(a) a caravan park (including a lifestyle village) that is
35 operated or required to be operated under a licence issued
page 68
Residential Parks (Long-stay Tenants) Bill 2004
Glossary
under the Caravan Parks and Camping Grounds
Act 1995;
(b) a caravan park (including a lifestyle village) operated by a
local government under the Caravan Parks and Camping
5 Grounds Act 1995;
(c) a caravan park (including a lifestyle village) that is
operated by a public sector body;
"Commissioner" means the Commissioner for Fair Trading
appointed under the Consumer Affairs Act 1971;
10 "default notice" means a notice under section 54(1)(b) or 55(1), as
the case requires;
"Department" means the department established under the Public
Sector Management Act 1994 section 35 that is principally
assisting the Minister to whom the administration of the
15 Consumer Affairs Act 1971 is for the time being committed by
the Governor;
"lifestyle village" means a caravan park, or an area within a caravan
park, that includes long-stay sites that are occupied, or intended
to be occupied, solely or principally by individuals having a
20 particular interest or quality in common;
"long-stay agreement" --
(a) has the meaning given to that term in section 4(1); and
(b) except in section 4(1) and section 107, means a long-stay
agreement to which this Act applies under section 4 as
25 modified by section 107;
"long-stay site", in relation to a residential park, means --
(a) if the residential park is operated by a person who is
licensed under the Caravan Parks and Camping Grounds
Act 1995 -- a site that is permitted to be used as a
30 long-stay site under a licence issued under that Act; or
(b) in any other case -- a site that the park operator is willing
to rent to a tenant for a fixed term of 3 months or more,
whether or not the site is rented for such a term at any
particular time, and whether or not the site includes an
35 on-site home;
page 69
Residential Parks (Long-stay Tenants) Bill 2004
Glossary
"long-stay tenant" or "tenant" means the grantee of a right of
occupancy under a long-stay agreement as mentioned in
section 4(1)(a) or (b);
"make", in relation to a long-stay agreement, has a meaning affected
5 by section 4(4);
"manager", in relation to a financial institution, means the manager
or other officer for the time being in charge of the financial
institution;
"notice of termination" means a notice to terminate a long-stay
10 agreement given in accordance with this Act;
"on-site home", in relation to an on-site home agreement, means the
relocatable home provided under the agreement by the park
operator;
"on-site home agreement" means a long-stay agreement under
15 which the long-stay tenant has the right to occupy a relocatable
home provided by the park operator;
"original party", in relation to legal proceedings, means a party to a
long-stay agreement on whose behalf the Commissioner is acting
in the proceedings as provided in section 92;
20 "park operator", in relation to a residential park, means the grantor
of a right of occupancy under a long-stay agreement as
mentioned in section 4(1)(a) or (b), or the grantor's successor
where the succession is subject to the interest of the tenant;
"park premises", in relation to a residential park, means all or any
25 part of the land and structures within the boundaries of the park,
including premises occupied exclusively by the park operator or
an agent or employee of the park operator, vacant sites, vacant
on-site homes, agreed premises and shared premises;
"park rules", in relation to a residential park, means --
30 (a) the rules for tenants prepared by the park operator (if any);
and
(b) the rules for tenants prepared by the park liaison
committee under section 29(2)(a) (if any);
"period of notice", in relation to the termination of a long-stay
35 agreement under a notice of termination, means the period
beginning on the day on which the notice is given and ending on
the specified day;
page 70
Residential Parks (Long-stay Tenants) Bill 2004
Glossary
"pet bond" means an amount paid as a security bond under
section 16(2)(b);
"public sector body" has the meaning given to that term in the
Public Sector Management Act 1994;
5 "real estate agent" means a person who holds or is required to hold a
licence under the Real Estate and Business Agents Act 1978;
"registered auditor" means a person who is registered, or taken to be
registered, as an auditor;
"relocatable home" means a vehicle or building that is fitted or
10 designed for use as a residence (whether or not it includes
bathroom or toilet facilities) and that is or can be parked,
assembled or erected on a site in a residential park;
"rent", in relation to a long-stay agreement, means an amount paid or
payable under the agreement by the long-stay tenant in respect of
15 the tenancy period or a part of the tenancy period;
"Rental Accommodation Fund" means the Rental Accommodation
Fund established under the Residential Tenancies Act 1987
Schedule 1 clause 3;
"residential park" means a caravan park (including a lifestyle
20 village) in which there are long-stay sites;
"retired person" has the same meaning as it has in the Retirement
Villages Act 1992 section 3;
"security bond" means an amount payable by a long-stay tenant as
security for the performance of his or her obligations under the
25 long-stay agreement, including an amount of pet bond (if any);
"selling agency agreement" means an agreement between a
long-stay tenant and a park operator as mentioned in
section 74(1);
"shared premises", in relation to a residential park, means --
30 (a) the common areas, structures and amenities in the park
that the park operator provides for the use of all long-stay
tenants or makes accessible to all long-stay tenants; and
(b) any fixtures, fittings or chattels in or on the common areas
or structures;
35 "site", in relation to a residential park, means an area of land in the
park that is set aside for the use of one relocatable home, except
page 71
Residential Parks (Long-stay Tenants) Bill 2004
Glossary
such an area that is a lot in relation to a survey-strata scheme
under the Strata Titles Act 1985;
"site-only agreement" means a long-stay agreement under which the
long-stay tenant has the right to occupy a relocatable home
5 provided by the long-stay tenant on a site in the residential park;
"specified day" means --
(a) in relation to a notice of termination given under
section 54(1)(a) or (b), 55(4), 56(1) or 57(1) -- the day
specified in the notice as the day on which the park
10 operator requires the long-stay tenant to give vacant
possession of the agreed premises to the park operator;
(b) in relation to a notice of termination given under
section 59(1) -- the day specified in the notice as the day
on which the tenant intends to give vacant possession of
15 the agreed premises to the park operator;
(c) in relation to a notice of termination given under
section 60(3) -- the day specified in the notice as the day
on which the agreement is to be terminated;
(d) in relation to a default notice given under
20 section 54(1)(b) -- the day specified in the notice as the
day on which the park operator requires the outstanding
amount of rent to be paid; and
(e) in relation to a default notice given under section 55(1) --
the day specified in the notice as the day on or before
25 which the breach must be remedied;
"statutory licensee" means a person who holds or is required to hold
a licence under the Caravan Parks and Camping Grounds
Act 1995;
"tenancy" means a tenancy under a long-stay agreement;
30 "tenancy bond account" means --
(a) in relation to a park operator -- an ADI account held
under section 17(1)(b); or
(b) in relation to a real estate agent -- a trust account referred
to in section 17(2)(a) or (b);
page 72
Residential Parks (Long-stay Tenants) Bill 2004
Glossary
"tenancy period", in relation to a long-stay agreement, means the
whole period during which the agreement is in force, whether the
agreement is for a fixed term or creates a periodic tenancy;
"working day" means any day except a Saturday, Sunday or public
5 holiday.
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