New South Wales: Residential (Land Lease) Communities Act 2013 (NSW)

Residential (Land Lease) Communities Act 2013 No 97 An Act to provide for the governance and regulation of residential communities; to repeal the Residential Parks Act 1998; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Residential (Land Lease) Communities Act 2013. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows— (a) to improve the governance of residential communities, (b) to set out particular rights and obligations of operators of residential communities and home owners in residential communities, (c) to enable prospective home owners to make informed choices, (d) to establish procedures for resolving disputes between operators and home owners, (e) to protect home owners from bullying, intimidation and unfair business practices, (f) to encourage the continued growth and viability of residential communities in the State. 4 Definitions (1) In this Act— approved form means a form approved by the Commissioner. capital gain, for Part 4, Division 3—see section 34A. capital share amount, for Part 4, Division 3—see section 34B(b)(i). close associate of an operator includes any of the following— (a) the spouse or relative of the operator, (b) an employee or agent of the operator, (c) a company of which the operator is a director, employee or agent, (d) a person who has a relationship with the operator that is of a kind prescribed by the regulations. Commissioner means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Customer Service. common area means any amenities, building, facilities, open space, road or other area provided for common use. community or residential community means an area of land that comprises or includes sites on which homes are, or can be, placed, installed or erected for use as residences by individuals, being land that is occupied or made available for occupation by those individuals under an agreement or arrangement in the nature of a tenancy, and includes any common areas made available for use by those individuals under that agreement or arrangement. Note. A community may be— (a) a caravan park (that is, land, including a camping ground, on which caravans, or caravans and other moveable dwellings, have been, are or are to be placed, installed or erected), or (b) a manufactured home estate as defined in the Local Government Act 1993 (that is, land on which manufactured homes have been, are or are to be placed), whether or not the caravan park or manufactured home estate is the subject of an approval under the Local Government Act 1993. community rules for a community means the rules made under Part 8 for the community. disclosure statement means a disclosure statement provided in accordance with section 21. embedded network, for Part 7—see section 75A. exempt seller, for Part 7—see section 75A. function includes a power, authority or duty, and exercise a function includes perform a duty. home means— (a) any caravan or other van or other portable device (whether on wheels or not) other than a tent, used for human habitation, or (b) a manufactured home as defined in the Local Government Act 1993, or (c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition. home owner means— (a) a person who owns a home on a residential site in a community that is the subject of a site agreement (whether or not the person resides at the site), or (b) a person who obtains an interest in a site agreement as the personal representative, or a beneficiary of the estate, of a deceased individual who, immediately before the individual's death, was a person mentioned in paragraph (a), or (c) another successor in title of a person mentioned in paragraph (a), but does not include any person, or any person of a class, excluded from this definition by the regulations. investigator means an investigator appointed under section 18 of the Fair Trading Act 1987. National Electricity Rules, for Part 7—see section 75A. office holder means the chairperson or secretary of a residents committee (who is elected under Part 9). on-site premium, for Part 4, Division 3—see section 34B(b)(ii). operator of a community means a person who is— (a) the person who manages, controls or otherwise operates the community, including by granting rights of occupancy under site agreements or tenancy agreements, whether or not the person is an owner of the community, or (b) the personal representative, or a beneficiary of the estate, of a deceased individual who, immediately before the individual's death, was a person mentioned in paragraph (a), or (c) a mortgagee in possession of a community for which site agreements are in force, or (d) another successor in title of a person mentioned in paragraph (a), other than a person, or a person of a class, excluded from this definition by the regulations. owner of a community means— (a) the owner of land on which the community is located, or (b) the personal representative, or a beneficiary of the estate, of a deceased individual who, immediately before the individual's death, was a person mentioned in paragraph (a), or (c) a mortgagee in possession of a community for which site agreements are in force, or (d) another successor in title of a person mentioned in paragraph (a), other than a person, or a person of a class, excluded from this definition by the regulations. prospective home owner means a person who indicates (or on whose behalf it is indicated) to the operator of a community that he or she is (or might be) interested in becoming a home owner in the community. Register means the Register of Communities kept by the Commissioner under Part 3. resident means a person who is a home owner or tenant in a community. residential community—see the definition of community. residential site means a site in a community for a home that is used, or is intended to be used, as a residence by an individual. residents committee, in relation to a community, means the residents committee for that community under Part 9. retailer, for Part 7—see section 75A. site agreement means an agreement under which the operator of a community grants to another person for value a right of occupation of a residential site in the community. Note. A site agreement gives rise to a tenancy. site fees means money paid or payable by a home owner to an operator on a periodic basis for occupation of a residential site under a site agreement. tenancy agreement means a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010. tenant means a person who has the right to occupy a residential site in a community under a tenancy agreement relating to the residential site. termination notice means a termination notice under Part 11 given by a party to a site agreement. termination order means a termination order under Part 11 made by the Tribunal. third party supplier, for Part 7—see section 75A. Tribunal means the Civil and Administrative Tribunal. utility means any of the following services— (a) electricity, (b) gas, (c) sewerage, (d) water, (e) another service prescribed by the regulations. utility charge means— (a) for electricity—a daily supply charge or usage charge for the supply of electricity, or (b) for another utility—a service availability charge or usage charge for the supply of the utility. voluntary sharing arrangement, for Part 4, Division 3—see section 34B. VSA site agreement, for Part 4, Division 3—see section 34C(2). Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) If there are 2 or more operators of a community— (a) a reference (however expressed) in this Act to the operator is a reference to any one or more of them, and (b) without limiting paragraph (a), it is sufficient compliance with the requirements of this Act and the regulations if any of them exercises the functions of the operator under this Act or the regulations. (3) If there are 2 or more owners of a community, subsection (2) applies to the owners in the same way as it applies to 2 or more operators of a community. (4) Notes included in this Act do not form part of this Act. Part 2 Application of Act 5 Application of Act to communities This Act applies to all communities— (a) whether existing immediately before or coming into existence after the commencement of this section, and (b) whether described as residential parks, caravan parks, manufactured home estates, communities or otherwise, and (c) whether or not any relevant approval for them has been obtained under the Local Government Act 1993, and (d) whether or not they are included in the Register, unless a provision of or under this Act provides otherwise. Note. Section 11 provides for exemptions under the regulations. 6 Application of Act to site agreements (1) This Act applies to all site agreements, whether existing immediately before or coming into existence after the commencement of this section, unless a provision of or under this Act provides otherwise. (2) Where this Act applies to a site agreement, it so applies despite the terms of the agreement or any other contract, agreement or arrangement, whether made before or after the commencement of this section. (3) This Act applies to a site agreement until it is terminated in accordance with this Act. 7 Arrangements to which this Act does not apply (1) This Act does not apply to the following arrangements made in good faith— (a) an occupation agreement to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies, (b) an arrangement for occupation of a residential site for holiday purposes, (c) an arrangement for occupation of a residential site or home by an itinerant worker, unless the parties to the arrangement agree to enter into a site agreement or tenancy agreement, (d) an arrangement for accommodation in a community for a full-time employee of the operator or owner, (e) any other arrangements prescribed by the regulations. (2) The operator of a community who enters into an arrangement of the kind referred to in subsection (1) and who knows at the time or ought reasonably to know at the time that it is not made in good faith commits an offence. Maximum penalty—100 penalty units. (3) In this section— arrangement includes a contract or agreement. itinerant worker means a person who lives elsewhere but stays in a community due to seasonal work in the area (for example, fruit picking). Note. If an arrangement of the kind referred to in this section is not entered into in good faith, orders could be sought from the Tribunal under section 9. 8 Places to which this Act does not apply (1) This Act does not apply to the following places— (a) a place owned or managed by a co-operative, (b) a place that is wholly subject to a strata scheme or community scheme, (c) a place owned by a company title corporation occupied by shareholders of the corporation, (d) any other place prescribed by the regulations. (2) In this section— community scheme means a scheme (other than a strata scheme) within the meaning of the Community Land Management Act 2021. company title corporation means a company registered under the Corporations Act 2001 of the Commonwealth that is the owner of land if ownership of a share or shares in that company entitles the owner of the share or shares to the exclusive use and occupation of residential premises on that land. co-operative has the same meaning as in the Co-operatives National Law (NSW) and includes a participating co-operative within the meaning of that Law. strata scheme has the same meaning as it has in the Strata Schemes Management Act 2015. 9 Declaration by Tribunal The Tribunal may, on application by any person, make an order declaring that— (a) a specified place is or is not a community to which this Act or a specified provision of this Act or the regulations applies, or (b) a specified agreement is or is not a site agreement to which this Act or a specified provision of this Act or the regulations applies, or (c) a specified contract, agreement or arrangement of a kind referred to in section 7 was or was not made in good faith. 10 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. 11 Exemptions from operation of Act (1) The regulations may exempt from the operation of this Act or the regulations or any specified provision of this Act or the regulations— (a) any specified community or other place or any specified class of communities or other places, or (b) any specified agreement or any specified class of agreements. (2) An exemption may be unconditional or subject to conditions. 12 Contracting out prohibited (1) The provisions of this Act and the regulations have effect despite any stipulation to the contrary in any agreement, contract or arrangement and no agreement, contract or arrangement operates to annul, vary or exclude any of the provisions of this Act or the regulations. (2) Subsection (1) applies in relation to an agreement, contract or arrangement (including a collateral agreement between the parties to a site agreement), and so applies in relation to the agreement, contract or arrangement— (a) whether or not it is a site agreement, and (b) whether or not it is a tenancy agreement, and (c) whether it is oral or wholly or partly in writing, and (d) whether it is or was made or entered into before or after the commencement of this section. (3) Without limiting subsection (1), a term of an agreement, contract or arrangement referred to in that subsection, including but not limited to a purported waiver (however expressed) of a right under this Act or the regulations, is void to the extent it is inconsistent with this Act or the regulations. (4) A person must not enter into any agreement, contract or arrangement after the commencement of this section with the intention, either directly or indirectly, of defeating, evading or preventing the operation of this Act or the regulations. Maximum penalty—100 penalty units. 13 Relationship of Act with other laws (1) This Act does not apply to tenancy agreements, except to the extent this Act provides otherwise. (2) The Retirement Villages Act 1999 does not apply to communities occupied by retired persons or predominantly by retired persons (that is, persons who have reached the age of 55 years or have retired from full-time employment). (3) Nothing in this Act limits any requirement imposed by or under the Local Government Act 1993 or the Environmental Planning and Assessment Act 1979. Part 3 Registration of communities 14 Commissioner to keep Register (1) The Commissioner is to keep a Register of Communities. (2) The Register may be kept in such form as the Commissioner considers appropriate. (3) The Commissioner is to ensure that information on the Register is kept up to date. In particular, the Commissioner may remove any information from the Register that appears to the Commissioner to be out of date. (4) The Commissioner may correct any error in or omission from the Register. (5) A community is registered if the particulars of the community are currently included in the Register. 15 Information to be recorded in Register (1) The Commissioner is to record in the Register in relation to each community— (a) particulars about the community notified under Part 13A of the Residential Parks Act 1998 (before its repeal) that appear to the Commissioner to be up to date, and (b) particulars about the community notified to the Commissioner under this Part. (2) The Commissioner may also record in the Register in relation to a community— (a) particulars of any enforcement action or disciplinary action taken in respect of the community, its operator or any of its staff, and (b) any other particulars or information that the Commissioner considers appropriate or that may be prescribed by the regulations. 16 Notifying particulars of community (1) The operator of a community must notify the Commissioner, in accordance with this section, of the following particulars so as to enable the Commissioner to include information about the community in the Register— (a) the trading name, address and contact details of the community, (b) the name and contact details of the operator and the owner of the community (if different from the operator), (c) information relating to any relevant training, qualifications or experience of the operator or other persons involved in the management of the community, (d) whether the community has a residents committee and, if so, the name and site number of an office holder of the committee or (if there is no office holder) of at least one member of the residents committee (if nominated by the committee), (e) information relating to the occupation and use of residential sites located in the community, (f) information relating to the commencement of operation of the community, (g) information relating to the community's membership of a relevant industry association, (h) such other particulars as may be approved by the Commissioner or prescribed by the regulations. (2) Particulars do not need to be notified again if the community was operating as a residential park immediately before the commencement of this section and the particulars were notified before that commencement under Part 13A of the Residential Parks Act 1998 (before its repeal). (3) The operator of a community must notify the Commissioner of the particulars referred to in subsection (1)— (a) if the community was operating as a community on the commencement of this section and the particulars had not been previously notified under Part 13A of the Residential Parks Act 1998—within 30 days after that commencement, or (b) if the community begins operating as a community after the commencement of this section—within 30 days after it begins operating as a community. (4) The operator of a community must notify the Commissioner within 30 days of any change to the particulars previously notified. (5) An operator of a community who contravenes this section is guilty of an offence. Maximum penalty— (a) in the case of a corporation—100 penalty units, or (b) in any other case—50 penalty units. (6) An operator is not excused from a requirement under this section to notify particulars concerning a community on the ground that the notification of those particulars may incriminate the operator or make the operator liable to a penalty. (7) Any notification given to the Commissioner under this section is to be in the approved form. Information is not duly provided unless all particulars required by the form are provided. 17 Notifying when a place ceases to be a community If a place ceases to be a community, the person who was the operator immediately before the cessation must notify the Commissioner of that cessation, and of the date when it occurred, within 30 days of the cessation. Maximum penalty— (a) in the case of a corporation—20 penalty units, or (b) in any other case—10 penalty units. 18 False or misleading information A person must not, in purported compliance with any requirement under this Part, provide to the Commissioner any information that the person ought reasonably to know is false or misleading in a material particular. Maximum penalty— (a) in the case of a corporation—100 penalty units, or (b) in any other case—50 penalty units. 19 Publication of certain information for public access (1) The Commissioner is to arrange for the following information about a community contained in the Register to be published on the internet for public access— (a) the trading name, address and contact details of the community, (b) the name of the operator, (c) particulars of enforcement action or disciplinary action taken in respect of the community, its operator or any of its staff that are currently authorised or required by the regulations to be included for publication, (d) such other information as may be prescribed by the regulations. (2) No other information contained in the Register may be made available to the public. (3) The operator of a community may advise the Commissioner that the community has ceased accepting new residents. The Commissioner may (if he or she considers it appropriate to do so) include in the published information a note to that effect. (4) The information referred to in subsection (1), and any note referred to in subsection (3), may also be provided to members of the public in any other manner approved by the Commissioner. 20 Evidential provisions concerning Register (1) The Register is evidence of any particulars or information recorded in it. (2) A certificate signed or purporting to be signed by the Commissioner, or an officer or employee of the Department of Customer Service authorised in writing by the Commissioner, and stating— (a) that a place named in the certificate was or was not registered at a specified time, or (b) any other particulars or information recorded in the Register at a specified time, is admissible in any legal proceedings and is evidence of the matters stated in the certificate. Part 4 Entering into site agreements Division 1 Disclosure of information 21 Disclosure statement required before entry into site agreement (1) The operator of a community must not enter into a site agreement with a person unless the operator has provided the person (or another person acting on behalf of that person) with a disclosure statement relating to the particular residential site at least 14 days before entering into the agreement. Maximum penalty—100 penalty units. Note. This requirement extends to a case where the operator is entering into a new site agreement with an existing home owner. (2) The disclosure statement is to be in the approved form and is to include— (a) details of the fees and charges that will be payable under the proposed site agreement for the particular residential site, and (b) details of the current range of site fees paid in the community, and (c) details of the services and facilities available in the community, and (d) details of compliance with statutory requirements applying to the community. (3) A disclosure statement is to be signed and dated by the operator. (4) The Tribunal may, on application by a prospective home owner, make an order requiring the operator of a community to provide a disclosure statement if— (a) a residential site in the community is available for occupation by the prospective home owner, and (b) the operator fails to provide a disclosure statement in relation to the residential site to the prospective home owner within 14 days after a request for the statement is made. 22 Approved information for prospective home owners (1) The Commissioner may approve the content and form of information that the operator of a community must provide to a prospective home owner or a person acting on behalf of a prospective home owner. (2) The operator of a community must not, without reasonable excuse, fail to provide the information in the approved form at or before the time the disclosure statement is provided in accordance with section 21. Maximum penalty—10 penalty units. (3) Without limiting subsection (1), the approved information may relate to any of the following— (a) residential communities generally, (b) the rights and responsibilities of home owners in residential communities, (c) a checklist for prospective home owners to consider before buying a home, (d) contact details to obtain information and advice. 23 Rescission during cooling-off period (1) A person who enters into a site agreement with the operator of a community is entitled, during the cooling-off period for the agreement, to rescind the site agreement by serving a notice in writing to that effect on the operator. Note. This entitlement extends to a case where an existing home owner enters into a new site agreement with an operator. (2) The cooling-off period for the agreement is the period— (a) commencing on the date when the site agreement is entered into by the person, and (b) ending at midnight on the day that is 14 days after the date the site agreement is entered into by the person. (3) On service of the notice of rescission, the site agreement is taken to be rescinded from the commencement of the agreement. (4) A person who rescinds a site agreement with an operator of a community under this section may also, during the cooling-off period for the site agreement, rescind any collateral agreement with the operator. The rescission is to be effected in the same way as, and has the same effect as, rescission of the site agreement. (5) The rescission of a site agreement, or any collateral agreement, under this section does not entitle any person to compensation of any kind. (6) A person who enters into a site agreement with the operator of a community ceases to be entitled to rescind an agreement under this section if the person starts to reside in a home located on the residential site, or causes a home to be placed, installed or erected on the residential site, before the end of the cooling-off period. (7) Subsection (6) does not apply to a person who is an existing home owner when the site agreement is entered into (being a person who is currently, or has previously been, a party to a site agreement relating to the residential site). (8) In this section, a collateral agreement includes a contract for sale of a home on the site, if the seller is the operator of the community. 24 No restrictions on obtaining advice The operator of a community must not restrict any person's right to seek independent advice before entering into a site agreement. Maximum penalty—10 penalty units. 25 False, misleading or deceptive information The operator of a community or a person acting on behalf of the operator must not induce a person to enter into a site agreement by any statement, representation or promise that the operator or person acting on behalf of the operator knows or ought reasonably to know is false, misleading or deceptive. Maximum penalty— (a) in the case of a corporation—100 penalty units, or (b) in any other case—50 penalty units. Division 2 Site agreements 26 Site agreements generally (1) The operator of a community must ensure that the site agreement for a site in the community is in writing at the commencement of the agreement. Maximum penalty—20 penalty units. (2) The agreement must— (a) identify the residential site by its number and its dimensions, and (b) state— (i) the operator's name and address for service of documents, and (ii) if the operator is a company—the address of the registered office of the company, and (iii) if the operator is not the owner of the community—the name of the owner, and (c) be signed by the parties, and (d) comply with any other requirements prescribed by the regulations (including as to the content or form of the agreement). (3) If a site agreement does not comply with a requirement of subsection (2), the operator of the community is guilty of an offence. Maximum penalty—20 penalty units. (4) The Tribunal— (a) may, on application by a home owner who was not given a written site agreement at the time occupation of the residential site commenced, order the operator to prepare and enter into— (i) a written site agreement in the relevant standard form, if prescribed, or (ii) a written site agreement that includes, or contains only, terms specified or of a kind specified by the Tribunal, if there is no relevant prescribed standard form, and (b) may, by the same order, specify a commencement date for the agreement that occurred before the order was made. 27 Standard site agreements (1) The regulations may prescribe a standard form of site agreement. (2) The regulations may provide for the following— (a) the terms of the standard form of site agreement, (b) more than one standard form of site agreement for use for different classes of communities, agreements or parties, (c) the addition of terms to, or the omission or variation of terms contained in, a standard form of site agreement in specified circumstances, (d) a form of site condition report to be completed by the parties and annexed to the site agreement. (3) A site agreement that is entered into on or after the day a relevant standard form is prescribed— (a) must be in the standard form (but may contain additional terms—see section 28), and (b) is taken to include the terms of the standard form to the extent they are not included in the site agreement. (4) The terms contained in the standard form must not be varied by the parties and to the extent the terms are so varied they are taken not to have been varied. (5) The Tribunal may, on application by a home owner under a site agreement that is entered into after the commencement of this section and is not in the relevant standard form, order the operator to prepare and enter into a site agreement that is in the relevant standard form. 28 Additional terms (1) The parties may insert additional terms in a standard form of site agreement, but only if the terms— (a) do not contravene this or any other Act, and (b) are not inconsistent with the terms prescribed in the standard form, and (c) are set out in a separate and clearly labelled part of the site agreement. (2) The Tribunal— (a) may, on application by a home owner or operator of a community, make an order declaring an additional term is void on being satisfied that the additional term contravenes subsection (1), and (b) may, by the same order, prohibit either or both of the following— (i) the current operator or any future operator of the community from using the same or a similar term in any future site agreement entered into in connection with the community while the community remains in the same ownership, (ii) the current operator from using the same or a similar term in any future site agreement entered into in connection with any other community being operated by the operator. 29 Prohibited terms of site agreements (1) The regulations may prohibit a specified type of term in a site agreement. (2) The operator of a community must not include, or attempt to enforce, a term of a site agreement that is prohibited under subsection (1). Maximum penalty—100 penalty units. (3) A term of a site agreement that is prohibited under subsection (1) is void. (4) A home owner or operator of a community may apply to the Tribunal to consider whether part or all of a specified term of a site agreement is void under subsection (3). (5) The Tribunal may, on application under subsection (4), make any of the following orders— (a) an order declaring that a specified term of the site agreement is void, (b) an order declaring that a specified term of the site agreement is not void, (c) an order declaring that a specified term of the site agreement is void to a specified extent, (d) an order varying a specified term of the site agreement, (e) any ancillary order that the Tribunal, in the circumstances, thinks appropriate. 30 No fees or charges payable before entry (1) The operator of a community, or a person acting on the operator's behalf, must not request, demand or receive any fee or charge from a prospective home owner before entering into a site agreement with the prospective home owner. Maximum penalty—20 penalty units. (2) Subsection (1) does not apply to a fee or charge payable to the operator by the prospective home owner as a deposit to build or provide a home on the residential site under a separate agreement. 31 Duration of site agreement (1) A site agreement may (but need not) provide for its duration to be for a specified fixed period. (2) The parties to a site agreement that specifies a fixed period may (but need not) enter into a new site agreement for a new fixed period, regardless of the terms of the agreement. (3) However, if a site agreement entered into after the commencement of this section specifies a fixed period, the period must exceed the minimum period. (4) A term of a site agreement entered into after the commencement of this section has no effect to the extent that it specifies a period that does not exceed the minimum period. In that case, the agreement is taken to be unlimited as to its duration. (5) A home owner's right under a site agreement to occupy a residential site continues until the agreement is terminated in accordance with this Act, whether or not a fixed period (if any) has expired, and accordingly all terms of the agreement remain in full force and effect. (6) For the purposes of this section, the minimum period is 3 years or, if another period is specified as the minimum period in the regulations, the period so specified. (7) A regulation that imposes a new minimum period applies to site agreements entered into on or after the commencement of the regulation. 32 Home owner to be given copy of site agreement The operator of a community must ensure that a home owner receives, free of charge, a copy of the site agreement (for the home owner to keep), when the home owner and the operator have both signed it. Maximum penalty—10 penalty units. 33 Certain unexecuted site agreements enforceable (1) If a site agreement has been signed by a home owner and given to the operator of a community or a person acting on the operator's behalf and has not been signed by the operator— (a) acceptance of site fees by or on behalf of the operator without reservation, or (b) any act of part performance of the agreement by or on behalf of the operator, gives to the document the same effect it would have if it had been signed by the operator on the first day in respect of which the site fee was accepted or on the day on which such an act was first performed. (2) This section applies despite section 54A of the Conveyancing Act 1919. (3) In this section— signed includes executed by a corporation in any manner permitted by law. 34 Non-compliance not to affect validity or enforceability A site agreement is not rendered void or unenforceable by non-compliance with a requirement of or under this Part, except to the extent specifically provided by a provision of this Part. Division 3 Voluntary sharing arrangements 34A Definitions In this division— capital gain, for a home, means the increase, if any, between the amount the home owner paid for the home and the amount for which the home owner subsequently sells the home, without regard to site fees or other fees or charges payable under the site agreement in relation to the site on which the home is located. capital share amount—see section 34B(b)(i). on-site premium—see section 34B(b)(ii). VSA site agreement—see section 34C(2). 34B Meaning of "voluntary sharing arrangement" A voluntary sharing arrangement means the terms of a site agreement under which the home owner agrees to pay the operator of the community either or both of the following— (a) site fees the payment of which is deferred as specified in the site agreement, (b) if the home owner sells the home—either of the following amounts — (i) a specified share of any capital gain for the home realised by the home owner (a capital share amount), (ii) a portion of the total sale price of the home determined in the way specified in the agreement (an on-site premium). 34C Voluntary sharing arrangements in site agreements (1) A site agreement may include a voluntary sharing arrangement. (2) A site agreement that includes a voluntary sharing arrangement (a VSA Site agreement) must not include— (a) a term that requires the home owner to pay an entry fee or exit fee, or both, to the operator of the community, or (b) a term that requires the home owner to pay a capital share amount or on-site premium to the operator of the community if the home— (i) is sold to be removed from the residential site, or (ii) is purchased by— (A) the operator of the community, or (B) a close associate of the operator. (3) Subsection (2)(a) does not apply to a site agreement entered into before the commencement of this section. (4) In this section— entry fee means a fixed fee relating to the entry into or establishment of the site agreement that is payable by the home owner— (a) on or before entry into the site agreement, or (b) as otherwise specified in the agreement. exit fee means a fixed fee payable by the home owner if the home owner sells the home or the home is removed from the residential site, but does not include— (a) a capital share amount, or (b) an on-site premium. 34D Payment of amounts payable under voluntary sharing arrangements (1) If the home owner sells the home and the operator of the community is the selling agent, the operator may deduct the amounts payable to the operator under a voluntary sharing arrangement from any proceeds of the sale held by the operator in accordance with the site agreement. (2) If the home owner sells the home and the operator of the community is not the selling agent, the home owner must pay the amounts payable to the operator under a voluntary sharing arrangement within 14 days of the sale being finalised. (3) The Tribunal may, at any time, on application by the operator of the community, make an order requiring the home owner to pay an amount owing to the operator under a voluntary sharing arrangement together with interest determined by the Tribunal. 34E Requirements for entering into voluntary sharing arrangements (1) The operator of a community must not enter into a VSA site agreement with a person (the contracting party) unless the operator first offers to instead enter into a rent only site agreement with the contracting party. (2) Before entering into the VSA site agreement with the contracting party, the operator of the community must— (a) provide the contracting party with written information regarding the costs under a VSA site agreement compared with the costs under a rent only site agreement, and (b) advise the contracting party to seek independent advice about the voluntary sharing arrangement included in the proposed VSA site agreement. (3) The VSA site agreement must include— (a) a declaration, signed by both parties to the agreement, that the operator of the community offered to instead enter into a rent only site agreement with the contracting party and the contracting party declined the offer to enter into the rent only site agreement, and (b) a declaration, signed by the contracting party, that the contracting party— (i) obtained independent advice about the voluntary sharing arrangement included in the VSA site agreement before entering into the VSA site agreement, or (ii) waived the contracting party's right to obtain independent advice about the voluntary sharing arrangement included in the VSA site agreement before entering into the VSA site agreement. (4) The voluntary sharing arrangement is void if this section is contravened. (5) The regulations may prescribe information, or the kinds of information, that must be provided to the contracting party under subsection (2)(a). (6) In this section— fair market value means the higher of the following— (a) the site fees currently payable by the home owner occupying the residential site, (b) the site fees currently payable for residential sites of a similar size and location within the same community. rent only site agreement means a site agreement— (a) that does not include a voluntary sharing arrangement, and (b) under which the site fees payable do not exceed fair market value. Part 5 Rights and obligations Division 1 Basic responsibilities 35 What this Division is about (1) This Division states some of the basic responsibilities of home owners and operators of communities. (2) Other provisions of this Act deal with more specific rights and responsibilities. (3) This Division does not limit the rights and responsibilities of an operator or home owner under this Act. 36 Home owner's responsibilities A home owner has the following responsibilities— (a) to use the residential site only as a place of residence, except so far as the operator consents to its use for another or additional purpose, (b) to use the community's common areas only for a purpose associated with the home owner's use of the residential site, (c) not to use, or allow other occupants living with the home owner or guests to use, the residential site or the community's common areas for an illegal purpose, (d) not to interfere with, and to ensure as far as practicable that other occupants living with the home owner or guests do not interfere with, the reasonable peace, comfort or privacy of the community's residents, (e) to pay the site fees and other charges payable by the home owner under the site agreement, (f) not to intentionally or recklessly damage or destroy, or allow other occupants living with the home owner or guests to intentionally or recklessly damage or destroy, the community's common areas, (g) to maintain (subject to fair wear and tear) the home located on the residential site in a reasonable state of cleanliness and repair, and so as to be fit to live in, and to keep the residential site tidy and free of rubbish, (h) to notify the operator as soon as practicable of— (i) any damage to the residential site, or (ii) any damage to the community's common areas caused or permitted by the home owner, other occupants living with the home owner or guests of the home owner, (i) to respect the rights of the operator, and agents and employees of the operator, to work in an environment free from harassment or intimidation, (j) not to act in a manner that adversely affects the work health and safety of persons working in the community, (k) to notify the operator before the residential site is to be left unoccupied for more than 30 days or, if the home owner is not able to give notice before leaving the residential site, as soon as is reasonably practicable after leaving it, (l) otherwise, to comply with the site agreement and the community rules. 37 Operator's responsibilities (1) The operator of a community has the following responsibilities— (a) to ensure that the community is reasonably safe and secure, (b) to take reasonable steps to ensure that the home owners— (i) always have access to their residential sites, and (ii) have reasonable access to the community's common areas, (c) to maintain the community's common areas in a reasonable state of cleanliness and repair, and so as to be fit for use by the home owners, (d) not to intentionally or recklessly damage or destroy any property of the home owners, other occupants or their guests, (e) to ensure that the times the operator or a representative of the operator is available to be contacted by the home owners are reasonable, having regard to all the circumstances, including the utilities supplied by the operator to residential sites, (f) to the extent that it is within the operator's control, to ensure the continuity of supply of utilities to residential sites occupied by home owners, (g) to take reasonable steps to keep the community's common areas reasonably free of weeds and vermin, (h) to have in place emergency evacuation procedures and to— (i) take reasonable steps to ensure that all residents are aware of the procedures, and (ii) test the procedures at least once per year and keep a record of tests conducted, (i) to pay all rates, taxes and other charges payable by the owner or operator of the community, (j) to comply with all statutory obligations relating to the community, (k) to ensure a residential site is in a reasonable condition, and fit for habitation, at the commencement of a site agreement for the site, (l) otherwise, to comply with the site agreements and the community rules. (2) With regard to the operator's obligation to maintain the community's common areas (in subsection (1)(c))— (a) any necessary work must be carried out as soon as is reasonably practicable and in a way that minimises disruption to residents, and (b) the work is to be carried out at an appropriate standard having regard to the age and prospective life of the community and to the level of fees and charges payable by residents, and (c) if there is a failure to carry out the work at all or to an appropriate standard, the Tribunal may, on application by a home owner, make any of the following orders in respect of the failure— (i) an order requiring work of a specified kind to be carried out, (ii) an order that the operator pay compensation to the home owner and any other home owners, (iii) any ancillary order that the Tribunal, in the circumstances, thinks appropriate. 38 Right to quiet enjoyment (1) The operator of a community must not unreasonably restrict or interfere with, or permit any unreasonable restriction or interference with, a home owner's privacy, peace and quiet, or proper use and enjoyment of the residential site and the community's common areas. Maximum penalty—10 penalty units. (2) The Tribunal may, on application by a home owner, make an order resolving a dispute concerning an operator's compliance with this section. 39 Access to residential site by operator (1) The operator of a community or a person acting on the operator's behalf may, while a site agreement is in force, enter a residential site in the following circumstances only— (a) with the consent of the home owner, so long as the consent is given at the time of entry or no more than 14 days before entry, (b) in an emergency, so long as entry is needed to avert danger to life or valuable property, (c) in a case where electricity, water or gas is supplied to the home owner by the operator—to inspect, read, service, repair or replace any electricity, water or gas meter located on the residential site, (d) to comply with an obligation under this Act or another Act, so long as (subject to the legislation concerned) at least 2 days' notice has been given to the home owner, (e) for the purpose of lawn or grounds maintenance, so long as— (i) entry is made at a reasonable time and on a reasonable number of occasions, and (ii) the home owner has agreed to such an arrangement, and (iii) the home owner's agreement has not been revoked by a notice in writing given to the operator, (f) in accordance with an order of the Tribunal. (1A) The operator of a community, or a person acting on the operator's behalf, may enter a home located on a residential site while a site agreement is in force for the site in the following circumstances only— (a) with the consent of the occupier of the home given at the time of entry, (b) in an emergency if necessary to avert danger to life, (c) to comply with an obligation under another Act or law, (d) in accordance with an order of the Tribunal. (2) A person exercising a right of entry under subsection (1) or (1A)— (a) must not act in an unreasonably intrusive manner on the residential site or in the home, and (b) without limiting the effect of paragraph (a), must not, without the home owner's consent— (i) enter a part of the residential site or home to which entry is not reasonably required for the purpose for which the right of entry is being exercised, or (ii) remain on the residential site or in the home longer than is reasonably necessary for the purpose for which the right of entry is being exercised. (3) The Tribunal may, on application by a home owner or the operator of a community, make an order settling any dispute involving entry to the residential site or home (including by authorising entry by the operator or any other person). (4) The operator or any other person referred to in this section must not, while the site agreement is in force, enter the residential site or the home located on it except as permitted by this section. Maximum penalty (subsection (4)): 10 penalty units. 40 Access to community by tradespersons and service providers (1) The operator of a community must take all reasonable steps to ensure that tradespersons and service providers have access to a home in the community to provide goods and services arranged by a resident of the home. Maximum penalty—20 penalty units. (2) The operator of a community must not— (a) require a resident to purchase, rent or lease goods or services from any particular person, or (b) restrict the right of a resident to purchase, rent or lease goods or services from a person of his or her choice. Maximum penalty—20 penalty units. (3) However, the operator may impose reasonable restrictions on the further entry of particular tradespersons and service providers to the community for a particular period (including, if appropriate, a prohibition on further entry), but only if they have— (a) unduly disturbed the peace and quiet of the community, or (b) violated any community rules, concerning motor vehicle traffic, that are displayed in or outside the community. (4) The Tribunal may, on application by a resident, make an order resolving a dispute concerning an operator's compliance with this section. 41 Access to community by emergency and home care service vehicles (1) The operator of a community must take all reasonable steps to ensure that— (a) emergency and home care service personnel have unimpeded vehicular access to homes in the community at all times, and (b) the residents of the community, and all relevant local emergency and home care service agencies, are consulted and kept informed as to any arrangements made to secure that access, and (c) the roads and residential sites in the community are signposted, or a map is placed at each entry to the community, in a way that provides adequate information for emergency and home care service personnel seeking to locate a home in the community. Maximum penalty—20 penalty units. (2) The Tribunal may, on application by a resident or a representative of an emergency or home care service agency, make an order resolving a dispute concerning an operator's compliance with this section. 42 Alterations and additions to, and replacement of, homes (1) A home owner must not, except with the written consent of the operator of the community or unless the site agreement otherwise provides— (a) make any alteration to the exterior of the home (other than painting or minor repairs) or add a fixture to the residential site, or (b) replace the home with another home. (2) The operator must not unreasonably withhold or refuse the consent. (3) The consent may be given with reasonable conditions. (3A) A home owner may, without the operator's consent— (a) install door screens or window locks, screens or shutters on the home, or (b) make any other minor alterations or additions to the home prescribed by the regulations. (3B) The alteration of, an addition to, or the replacement of, a home must not contravene— (a) the Environmental Planning and Assessment Act 1979 and the regulations made under that Act, or (b) the Local Government Act 1993 and the regulations made under that Act, or (c) an approval, consent or certificate under an Act or law referred to in paragraphs (a) and (b). (4) The Tribunal may, on application by the home owner, order that any alteration, addition or replacement requiring consent can be carried out without consent if the Tribunal finds that the withholding or refusal of consent is unreasonable or that unreasonable conditions were imposed. (5) The Tribunal must not make an order under this section if the alteration, addition or replacement would contravene an Act or law, or an approval, consent or certificate, referred to in subsection (3B)(a)–(c). (6) A home located on a residential site is not, for any purpose, to be regarded as a fixture, regardless of the manner in which it is attached to the land. This subsection does not apply to a home that is owned by the owner of the community. (7) Without limiting subsection (6), a fixture added to a residential site by a home owner remains the property of the home owner and does not become part of the land, and the home owner may remove it at any time or sell it as part of the home. 43 Dilapidation (1) If the operator of a community reasonably believes any of the following defects exist, the operator may issue a written notice to the home owner requiring the home owner to carry out work to rectify the defect within 60 days— (a) significant dilapidation of the home owner's home, (b) significant dilapidation of the residential site on which the home is located that was caused by the home owner, (c) either of the following, made by the home owner in a way likely to cause serious health or safety risks to other persons— (i) the alteration of, or an addition to, an external feature of the home, (ii) the alteration or addition of a fixture on the residential site. (2) If the home owner fails to comply with the notice, the Tribunal may, on application by the operator, make— (a) an order requiring the home owner to carry out the work within a specified period, and (b) if the home owner does not comply with the order under paragraph (a)—an order authorising the operator to arrange for the work to be carried out, and to recover the reasonable costs from the home owner, as directed by the Tribunal. (3) The Tribunal may, on application by the home owner, make— (a) an order declaring that the notice given by the operator is invalid on the ground that— (i) the residential site or home is not significantly dilapidated, or (ii) the alteration or addition is not likely to cause serious health or safety risks to other persons, or (b) an order that the period of 60 days be extended by a further period on the ground that 60 days provides insufficient time to rectify the defect. 44 Additional occupants (1) A home owner must not, except with the written consent of the operator of the community or unless the site agreement otherwise provides, allow additional persons to occupy the residential site. (2) The operator must not unreasonably withhold or refuse the consent. (3) The consent may be given with reasonable conditions. (4) The Tribunal may, on application by the home owner, order that the home owner may allow other named persons to occupy the residential site without consent if the Tribunal finds that the withholding or refusal of consent was unreasonable or that unreasonable conditions were imposed. (5) However the followings persons have an automatic right of occupation of the residential site without the need for the operator's consent, even if they are not named or referred to in the site agreement— (a) a home owner's spouse or de facto partner, (b) a home owner's carer. (6) It is not unreasonable for an operator to withhold or refuse consent on the ground that the additional person does not meet age restrictions for occupancy set out in the community rules that were in force when the home owner entered into the site agreement. (7) The Tribunal may, on application by the home owner or operator, make orders to settle a dispute arising under this section. (8) The operator may give consent under this section, and the Tribunal may make an order under this section, despite any term of the site agreement that prohibits additional occupants or puts limits on the number of occupants. 45 Sub-letting residential site or assignment of site agreement (1) A home owner may, with the written consent of the operator of the community— (a) enter into a tenancy agreement for, or otherwise sub-let, the residential site or the home located on it, or (b) assign the site agreement. (2) The operator must not unreasonably withhold or refuse consent for a tenancy agreement or other sub-lease that is proposed to be entered into or granted once during any 3-year period in which the site agreement has effect and is for a term of 12 months or less. (3) The operator must not unreasonably withhold or refuse consent to the assignment of a tenancy agreement. (4) Section 133B of the Conveyancing Act 1919 does not prevent the operator from withholding or refusing consent, for any or no reason, for a tenancy agreement or other sub-lease if it is for a term exceeding 12 months. (5) This section has effect despite the terms of the site agreement and does not prevent the home owner from selling the home on site or from having additional occupants as contemplated by section 44. (6) The Tribunal may, on application by the home owner or operator, make orders to settle a dispute arising under this section, including but not limited to— (a) a dispute arising where consent was withheld or refused, and (b) a dispute arising where the term of a tenancy agreement or other sub-lease exceeds 12 months. 46 Right of home owner to appoint agent (1) A home owner may appoint a person as the home owner's agent for the purpose of receiving notices or other documents to be given to the home owner under a site agreement or under this Act. Note. For example, a home owner may wish to appoint an agent if the home owner cannot read or write English, is sick, or is going to be away from his or her home for some time. (2) An appointment of the operator of the community (or a close associate of the operator or a person nominated by the operator) as an agent under this section is of no effect. (3) An appointment under this section— (a) may be made in a site agreement or at any time after the agreement commences, and (b) may be revoked at any time by the home owner, but any such appointment or revocation has no effect until it is notified in writing to the operator. (4) The operator must give to the agent appointed by a home owner, until such time as the appointment expires or is revoked, any notices or other documents that the operator is required to give to the home owner under a site agreement or this Act. (5) A notice or other document that is required by this section to be given to the agent appointed by the home owner and that is not so given is taken not to have been given to the home owner. 47 Mail facilities (1) The operator of a community must establish and maintain at the community reasonably accessible and reasonably secure mail facilities for the home owners. (2) The operator of a community must not access or interfere with individual mail facilities provided to a home owner in the community, except with the prior consent of the home owner. Maximum penalty—10 penalty units. (3) The Tribunal may, on application by a home owner, make an order resolving a dispute concerning an operator's compliance with this section. 48 Maintenance of trees (1) The operator of a community must— (a) ensure that all trees in the community are properly maintained, and (b) take reasonable action if a home owner reports that a tree has caused or is likely to cause injury to a person or damage to property. Note. For example, the operator may be required to trim dead tree branches or remove tree roots causing damage to driveways, pipes and other property. (2) A home owner in a community, or an occupant in the home owner's home, must not plant a tree, or authorise a tree to be planted, in the community without the consent of the operator. (3) An operator is not required under this section to take any action that is prohibited by law. (4) The Tribunal may, on application by a home owner, make an order resolving a dispute concerning an operator's compliance with subsection (1). (5) The Tribunal may, on application by an operator, make an order for the removal of a tree that has been planted without the consent referred to in subsection (2). Without limitation, an order may require the home owner concerned to remove the tree at the home owner's expense or require the home owner to pay to the operator the reasonable costs of removing the tree. 49 Services, facilities and improvements (1) The operator of a community must maintain all services and facilities required by the development co