South Australia: Residential Parks Act 2007 (SA)

South Australia Residential Parks Act 2007 An Act to regulate the relationship between residents in residential parks and park owners; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Presumption of periodicity in case of fixed short terms 5 Application of Act Part 2—Park rules and residents committees 6 Park rules 7 Residents committees 8 Amendment of park rules 9 Application to Tribunal if park rules are considered unreasonable Part 3—Formation of residential park agreements Division 1—Entering into residential park agreements 9A Application of Part 10 Residential park agreement to be in writing 11 Copies of written agreements 12 Agreements incorporate park rules 13 Cost of preparing written agreement 14 Information to be provided by park owners to residents 15 False information from resident 16 Non-compliance not to affect validity or enforceability Division 2—Discrimination against residents with children 17 Discrimination against residents with children Division 3—Continuation or reissue of certain agreements 17A Agreement for fixed term continues as periodic agreement if not terminated 17B Certain site agreements to be reissued Part 4—Mutual rights and obligations of park owners and residents Division 1—Rents and other charges 18 Permissible consideration for residential park agreement 19 Rent in advance 20 Method of payment of rent 21 Variation of rent 22 Excessive rent 23 Park owner's duty to keep proper records of rent 24 Duty to give receipt for rent 25 Accrual and apportionment of rent 26 Abolition of distress for rent Division 2—Bonds 27 Bond 28 Receipt of bond and transmission to Commissioner 29 Repayment of bond Division 3—Resident's entitlement to possession and quiet enjoyment 30 Vacant possession etc 31 Quiet enjoyment Division 4—Residential park tenancy agreement—security of dwelling 32 Residential park tenancy agreement—security of dwelling Division 5—Access to residential park 33 Access to residential park Division 6—Park owner's obligations in relation to condition of rented property and common areas 34 Cleanliness 35 Park owner's obligation to repair Division 7—Resident's obligations in relation to rented property and common areas 36 Resident's responsibility for cleanliness and damage 37 Residential park tenancy agreement—alteration of rented property 38 Residential park site agreement—alterations on site Division 8—Resident's conduct on rented property 39 Resident's conduct Division 9—Park owner's right of entry 40 Residential park tenancy agreement—right of entry 41 Residential park site agreement—right of entry 42 Manner of exercise of right of entry Division 10—Statutory and other charges in respect of rented property 43 Statutory and other charges in respect of rented property Division 11—Resident's vicarious liability 44 Vicarious liability Division 12—Harsh or unconscionable terms 45 Harsh or unconscionable terms Division 13—Miscellaneous 46 Accelerated rent and liquidated damages 47 Duty of mitigation Part 5—Assignment of residential park agreements 48 Assignment of residential park agreement Part 6—Residential park site agreement—acquisition of park or site 49 Residential park site agreement—acquisition of park or site Part 7—Residential park site agreement—sale of dwelling on‑site 50 Residential park site agreement—sale of dwelling on-site 50A Sale of dwelling following death of resident Part 8—Sub-tenancy agreements 51 Sub-tenancy agreements Part 9—Termination of residential park agreements Division 1—Termination generally 52 Termination of residential park agreement 54 Termination of agreement for periodic tenancy 55 Limitation of right to terminate Division 2—Residential park tenancy agreements—termination by parties Subdivision 1—Termination by park owners 56 Termination for breach of agreement 57 Termination where successive breaches of agreement 58 Termination where serious misconduct by resident 59 Termination where periodic tenancy and sale of rented property 60 Termination where periodic tenancy and no specified ground of termination 61 Termination at end of fixed term 62 Termination where agreement frustrated Subdivision 2—Termination by residents 63 Termination for breach of agreement 64 Termination where successive breaches of agreement 65 Termination where periodic tenancy and no specified ground of termination 66 Termination at end of fixed term 67 Termination where agreement frustrated Division 3—Residential park site agreements—termination by parties Subdivision 1—Termination by park owners 68 Termination for breach of agreement 69 Termination where successive breaches of agreement 70 Termination where serious misconduct by resident 70A Termination where change of use or redevelopment 71 Termination where periodic tenancy and no specified ground of termination 72 Termination at end of fixed term 73 Termination where agreement frustrated Subdivision 2—Termination by residents 74 Termination for breach of agreement 75 Termination where successive breaches of agreement 76 Termination where periodic tenancy and no specified ground of termination 77 Termination at end of fixed term 78 Termination where agreement frustrated 78A Termination where notice given under section 70A Division 4—Termination by Tribunal 79 Termination on application by park owner 80 Termination on application by resident 81 Termination based on hardship Division 5—Form of notices of termination 82 Form of notice of termination Division 6—Repossession of rented property 83 Order for possession 84 Abandonment of rented property 85 Repossession of rented property 86 Forfeiture of head tenancy not to automatically end agreement Division 7—Enforcement of orders for possession 87 Enforcement of orders for possession Division 8—Retaliatory action by park owner 88 Retaliatory action by park owner Division 9—Resident to give forwarding address 89 Resident to give forwarding address Division 10—Abandoned property 90 Abandoned property 91 Offence to deal with abandoned property in unauthorised way 92 Action to deal with abandoned property other than personal documents 93 Action to deal with abandoned personal documents 94 Action to deal with abandoned dwellings or prescribed items Part 10—Serious acts of violence 95 Park owner may give person notice to leave for serious act of violence 96 Exclusion from park for certain period 97 Park owner may make urgent application to Tribunal 98 Occupation of rented property pending application or hearing Part 11—South Australian Civil and Administrative Tribunal Division 3—Tribunal's jurisdiction 103 Jurisdiction of Tribunal Division 4—Representation of parties in mediation 110 Representation of parties in mediation Division 5—Intervention by Commissioner 112 Power to intervene Division 6—Amendment of proceedings 113 Amendment of proceedings Division 7—Judgments and orders 116 General powers of Tribunal to resolve disputes 117 Special powers to make orders 118 Restraining orders 119 Conditional and alternative orders Division 8—Obligation to give reasons for decisions 123 Reasons for decisions 123A Time for application for review or instituting appeal Division 10—Representation in proceedings before Tribunal 126 Representation in proceedings before Tribunal Part 12—Commissioner for Consumer Affairs and administration of Act 132 Administration of Act 133 Ministerial control of administration 134 Commissioner's functions 135 Commissioner to maintain register 136 Annual report Part 13—Miscellaneous 137 Contract to avoid Act 138 Notice by park owner not waived by acceptance of rent 138A Park owner must have safety evacuation plan 139 Exemptions 140 Service 141 Regulations Schedule 1—Transitional provisions 1 Application to existing residential park agreements 2 Application to existing park rules 3 Exemption by Minister 4 Existing residential park agreements need not comply with formal requirements 5 Existing bond to be paid to Commissioner Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Residential Parks Act 2007. 3—Interpretation (1) In this Act, unless the contrary intention appears— abandoned property—see Part 9 Division 10; ADI means an authorised deposit-taking institution within the meaning of the Banking Act (Cwth); bailiff means a bailiff appointed under the South Australian Civil and Administrative Tribunal Act 2013; bond means an amount a resident is required to pay under a provision of a residential park agreement or collateral agreement as security for the performance of obligations under the residential park agreement or this Act; collateral agreement means— (a) a sub-tenancy managing agent agreement; or (b) any agreement collateral to a residential park agreement; Commissioner means the Commissioner for Consumer Affairs; common area in a residential park means any facilities, building, road or other area in the park provided for common use by residents of the park; damage to property includes the loss of property; Deputy President means a Deputy President of the Tribunal appointed under the South Australian Civil and Administrative Tribunal Act 2013; Deputy Registrar means a Deputy Registrar of the Tribunal appointed under the South Australian Civil and Administrative Tribunal Act 2013; dwelling means— (a) a structure, whether fixed or moveable, that is designed to be used and is capable of being used for human habitation; or (b) a motor vehicle or trailer that is designed to be used and is capable of being used for human habitation, and includes a part of a dwelling but does not include a tent or a structure of a kind prescribed by regulation; exclusion period—see section 96; forwarding address of a resident means the address of the place at which the resident will next reside, or an address that will be a postal address of the resident, after termination of the residential park agreement; Fund means the Residential Tenancies Fund continued in existence under the Residential Tenancies Act 1995; housing assessment order has the same meaning as in the Housing Improvement Act 2016; housing demolition order has the same meaning as in the Housing Improvement Act 2016; housing improvement order has the same meaning as in the Housing Improvement Act 2016; lawyer means a person entitled to practise the profession of the law under the Legal Practitioners Act 1981; motor vehicle has the same meaning as in the Motor Vehicles Act 1959; notice to vacate has the same meaning as in the Housing Improvement Act 2016; occupied site in a residential park means a site in the park occupied by a resident; park owner of a residential park means the owner or operator of the residential park, and includes a successor in title to the park (or rented property) whose title is subject to a resident's interest and a prospective park owner and a former park owner; Note— Part 8 relates to sub-tenancy agreements and contains a provision that extends the meaning of the term park owner in relation to sub-tenancy agreements. park rules—see Part 2; permanently fixed dwelling means a structure that— (a) has the character of a dwelling; and (b) is designed to be permanently fixed to land; and (c) could not, under any reasonable arrangement, be removed in a state that would allow the structure to be reused as a dwelling at another place; personal documents means official documents, photographs, correspondence or other documents that it would be reasonable to expect a person might wish to keep; personal representative of a deceased resident means a person who is entitled at law to administer the estate of the deceased resident; preliminary rent control notice has the same meaning as in the Housing Improvement Act 2016; President means the President of the Tribunal appointed under the South Australian Civil and Administrative Tribunal Act 2013; Registrar means the Registrar of the Tribunal appointed under the South Australian Civil and Administrative Tribunal Act 2013; rent means an amount payable under a residential park agreement for the right to occupy the rented property for a period under the agreement; rent control notice has the same meaning as in the Housing Improvement Act 2016; rented property means— (a) in relation to a residential park tenancy agreement—the site and dwelling in respect of which the right of occupancy has been granted under the residential park tenancy agreement; or (b) in relation to a residential park site agreement—the site in respect of which the right of occupancy has been granted under the residential park site agreement, and includes, in either case, so far as the context admits, property (not forming part of the site or dwelling) that is provided by the park owner, either under the agreement or independently of the agreement, for use by the resident; resident of a residential park means a person who is granted a right of occupancy under a residential park tenancy agreement or a residential park site agreement in respect of the residential park, or a person to whom the right passes by assignment or operation of law, and includes a prospective resident or a former resident; residential park means an area of land used or intended to be used in either or both of the following ways: (a) as a complex of sites of dwellings in respect of which rights of occupancy are conferred under various residential park tenancy agreements, together with common area bathroom, toilet and laundry facilities and other common areas; (b) as a complex of sites in respect of which rights of occupancy are conferred under various residential park site agreements, together with common areas (which may, but need not, include bathroom, toilet and laundry facilities); residential park agreement means— (a) a residential park tenancy agreement; or (b) a residential park site agreement; residential park dispute means— (a) a claim under a residential park agreement or a collateral agreement; or (b) a dispute between parties or former parties to a residential park agreement or a collateral agreement about matters arising under the agreement or this Act; or (c) any matter that may be the subject of an application under this Act to the Tribunal; residential park site agreement means an agreement under which a park owner grants another person, for valuable consideration, a right (which may, but need not, be an exclusive right) to occupy a site in the residential park, and to install or locate a dwelling on the site, for residential purposes; residential park tenancy agreement means— (a) an agreement under which a park owner grants another person, for valuable consideration, a right (which may, but need not, be an exclusive right) to occupy a site in the residential park, and a dwelling made available on the site by the park owner, for residential purposes; or (b) an agreement (a sub-tenancy agreement) under which a resident grants another person, for valuable consideration, a right (which may, but need not, be an exclusive right) to occupy the site in respect of which the resident has a right of occupancy, and the dwelling on the site (whether a dwelling made available by the park owner or installed or located on the site by the resident), for residential purposes; statutory charges means— (a) rates or other charges on land under the Local Government Act 1999; and (b) rates or other charges under the Waterworks Act 1932 or the Sewerage Act 1929; and (c) tax under the Land Tax Act 1936; and (d) levies under the Emergency Services Funding Act 1998; and (e) levies under the Landscape South Australia Act 2019; and (f) any charges of a kind imposed under an Act and declared by regulation to be statutory charges; sub-tenancy agreement—see paragraph (b) of the definition of residential park tenancy agreement; sub-tenancy managing agent agreement—see Part 8; trailer has the same meaning as in the Motor Vehicles Act 1959; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013. (2) If this Act provides for something to be done within a specified period from a particular day, the period is to be taken not to include the particular day. (3) If this Act provides that action may be taken after the expiration of a specified period of days, the period is to be taken to be a period of clear days. (4) For the purposes of this Act, a residential park agreement includes an agreement granting a corporation a right in respect of a dwelling that is occupied, or intended to be occupied, as a place of residence by a natural person. (5) For the purposes of this Act, a residential park agreement will be taken to be for a short term if it is for a term of 90 days or less (and all other residential park agreements will be taken to be for a long term). (6) A reference in this Act to the market value of a dwelling or other asset is a reference to the estimated amount for which the dwelling or asset should exchange, at the relevant time, between a willing buyer and a willing seller in an arm's length transaction, after proper marketing and where the parties had each acted knowledgeably, prudently and without compulsion. 4—Presumption of periodicity in case of fixed short terms (1) If a residential park agreement is entered into for a fixed short term, the agreement is taken to be an agreement for a periodic tenancy with a period equivalent to the length of the fixed term unless the park owner establishes that— (a) the resident genuinely wanted an agreement ending at the end of the fixed short term and the term was fixed at the resident's request; or (b) before the residential park agreement was entered into— (i) the park owner gave the resident a notice containing a warning in the form approved by the Commissioner; and (ii) the resident signed a statement in the form approved by the Commissioner acknowledging that the resident did not expect to continue in occupation of the rented property after the end of the term stated in the agreement. 5—Application of Act (1) This Act does not apply to an agreement that confers on a person a right to occupy a dwelling in a residential park unless the dwelling is or is to be the person's principal place of residence. (2) For the purposes of this Act, evidence that the address of a residential park in which a person has a right to occupy a dwelling is the person's address as appearing on the electoral roll is to be taken, in the absence of proof to the contrary, to be proof that the dwelling is the person's principal place of residence. (3) This Act does not apply to an agreement that has been genuinely entered into for the purpose of conferring on a person a right to occupy a dwelling in a residential park for a holiday. (4) For the purposes of this Act— (a) an agreement conferring a right to occupy a dwelling for a fixed term of 60 days or longer; or (b) an arrangement consisting of 2 or more agreements that confer on the same person a right to occupy a dwelling for consecutive fixed terms the sum of which is 60 days or longer, is to be taken, in the absence of proof to the contrary, not to be an agreement referred to in subsection (3). (5) For the purposes of this Act, evidence that a person has occupied a dwelling in a residential park under an agreement for 60 days or longer is to be taken, in the absence of proof to the contrary, to be proof that the agreement is not an agreement referred to in subsection (3). (6) For the purposes of this Act, a term of an agreement to the effect that a right to occupy a dwelling in a residential park is conferred by the agreement for a holiday is not of itself sufficient to establish that the agreement is an agreement referred to in subsection (3). (7) This Act does not apply to— (a) an agreement giving a right of occupancy in— (i) a hotel or motel; or (ii) an educational institution, college, hospital or nursing home; or (iii) club premises; or (iv) a home for aged or disabled persons administered by an eligible organisation under the Aged or Disabled Persons Care Act 1954 of the Commonwealth; or (v) a retirement village within the meaning of the Retirement Villages Act 1987; or (vi) a supported residential facility within the meaning of the Supported Residential Facilities Act 1992; or (vii) premises prescribed by regulation, or premises of a class prescribed by regulation; or (b) an agreement under which a person boards or lodges with another; or (c) an agreement for the sale of land or a dwelling, or both, that confers a right to occupy the land or dwelling, or both, on a party to the agreement; or (d) a mortgage; or (e) an agreement prescribed by regulation, or an agreement of a class prescribed by regulation. Part 2—Park rules and residents committees 6—Park rules (1) The park owner of a residential park may make rules about the use, enjoyment, control and management of the park. (2) However, rules may be made only about any of the following: (a) the use of common areas and the operation of common area facilities; (b) the making and abatement of noise; (c) the carrying on of sporting and other recreational activities; (d) the speed limits for motor vehicles; (e) the parking of motor vehicles; (f) the disposal of refuse; (g) the keeping of pets; (h) maintenance standards for dwellings installed or located in the residential park by residents, as they affect the general amenity of the park; (i) the landscaping and maintenance of sites for dwellings; (j) the terms of any sub-tenancy managing agent agreements between the park owner and residents; (k) limiting who may become residents to persons who are over the age of 50 years; (l) guests or visitors of residents; (m) other things prescribed under a regulation. (3) Park rules relating to the terms of sub-tenancy managing agent agreements must include any rules approved by the Commissioner as model rules for the purposes of this subsection. (4) A park rule will be void for the purposes of this Act to the extent that it is inconsistent with— (a) this Act; or (b) a model rule approved under subsection (3); or (c) any other Act or law. (5) The Legislative Instruments Act 1978 does not apply to park rules. 7—Residents committees (1) The residents of a residential park may elect residents from at least 5 different occupied sites in the park to form a residents committee to represent the interests they have in common as residents of the park, on the basis that— (a) only a resident may be a member of the committee; and (b) except as provided in paragraph (c), each resident has a right to nominate for election to the residents committee and to participate in the election of members of the residents committee; and (c) any resident who is employed or engaged by the park owner to assist in the management of the residential park may not be a member of the committee. (1a) A park owner or park owner's agent who unreasonably interferes with a resident's rights under subsection (1) is guilty of an offence. Maximum penalty: $25 000. (1b) A park owner of a prescribed residential park must ensure that the park has a residents committee (in accordance with subsection (1) and any other requirements prescribed by the regulations). Maximum penalty: $25 000. Expiation fee: $1 200. (1c) It is a defence to a charge of an offence against subsection (1b) if the defendant proves that the defendant took reasonable steps to ensure that a residents committee was elected but an insufficient number of residents nominated for election to the committee. (2) Only 1 residents committee may be formed under this section in relation to the same residential park. (3) If more than 1 body or committee (regardless of its name) purports to be the residents committee for a particular residential park, the owner of the park or a resident of the park may apply to the Tribunal for, and the Tribunal may make, an order determining which body or committee (if any) is the residents committee for the residential park. (5) A park owner must, insofar as is reasonable after taking into account the facilities located at the residential park and any other relevant factor, allow the use of a place within the residential park for the purposes of a meeting of residents called by a residents committee which must, insofar as is reasonable, be an enclosed area. Maximum penalty: $25 000. Expiation fee: $750. (6) If the residents committee for a residential park makes representations to the park owner in relation to a matter that has been considered by the committee, the park owner must consider the representations made and provide a written response to the residents committee as soon as practicable (and in any case within 1 month after receiving the representations or such longer period as may be agreed by the residents committee). Maximum penalty: $25 000. Expiation fee: $1 200. (7) For the purposes of subsection (6), a response will be taken to have been provided to a residents committee if it has been provided to any member of that committee. (8) The regulations may make provision for or with respect to the election, term of office, functions and procedure of residents committees. (9) In this section— prescribed residential park means a residential park that has more than 20 fixed term residential park site agreements in force. 8—Amendment of park rules (1) A park owner may make written amendments to park rules for a residential park. (2) An amendment does not have effect unless each resident of the residential park has been given 14 days written notice of the amendment. (3) If a residents committee has been established for the residential park, the park owner must consult, and consider the views of, the committee in relation to the amendment of park rules. (4) In this section— amendment to park rules includes— (a) a variation of a park rule; or (b) the addition to the park rules of a new rule; or (c) the revocation of an existing park rule. 9—Application to Tribunal if park rules are considered unreasonable (1) An application may be made to the Tribunal to declare a park rule for a residential park unreasonable if a joint application is made by residents from a majority of the occupied sites in the park. (2) An application under this section is not affected if, after the date of the application, the applicants cease to consist of residents from a majority of the occupied sites in the park. (3) When an application is made to the Tribunal about the reasonableness of park rules, the Tribunal may make any of the following orders: (a) an order declaring the rule or proposed rule to be reasonable or unreasonable; (b) an order changing the rule in a way it considers appropriate to make it reasonable. (4) A park rule is void if the Tribunal makes an order that the rule or proposed rule is unreasonable. Part 3—Formation of residential park agreements Division 1—Entering into residential park agreements 9A—Application of Part For the avoidance of doubt, this Part applies to a residential park agreement whether it is the first agreement between the resident and the park owner or is a reissued or subsequent agreement between the parties. 10—Residential park agreement to be in writing (1) A residential park agreement must be in writing. (2) The agreement must include the terms prescribed by this Act and any terms prescribed by regulation as standard terms for residential park agreements. (2a) The Commissioner must ensure that a model residential park agreement, that may be used by park owners as a guide or template when preparing their own agreements, is published on a website determined by the Commissioner. (3) If, for a standard term of a residential park agreement to be effective, the term requires stated information to be included in it, the agreement is to be taken to include the standard term only if the information is properly included. (4) The agreement must— (a) be written in a clear and precise way; and (b) precisely identify the site; and (c) state— (i) the park owner's full name and address for service of documents; and (ii) if the park owner is a company—the address of the registered office of the company; and (iii) the resident's full name and place of occupation; and (d) subject to subsection (4a), be signed by the parties; and (e) comply with any other requirements prescribed by the regulations (including as to the content or form of the agreement). (4a) The following agreements do not need to be signed by the parties: (a) a written agreement for a periodic tenancy that arises under section 17A; (b) a written copy of a reissued agreement provided to a resident under section 17B(1)(b), but an agreement referred to in paragraph (a) must include the date, or approximate date, on which the resident was first granted the right to occupy the site (if known). (5) If a residential park agreement does not comply with a requirement of this section, the park owner is guilty of an offence. Maximum penalty: $25 000. Expiation fee: $1 200. 11—Copies of written agreements If a park owner invites or requires a resident to sign a written residential park agreement, or a document recording its terms, the park owner must ensure that— (a) the resident receives a copy of the agreement or other document (for the resident to keep), when the resident signs it; and (b) if the agreement or other document has not been signed by the park owner, a copy of the agreement or other document, as executed by all parties, is delivered to the resident within 14 days after the resident gives the agreement or other document back to the park owner to complete its execution. Maximum penalty: $35 000. Expiation fee: $2 000. 12—Agreements incorporate park rules (1) The park rules for a residential park (as from time to time in force under Part 2) are to be taken to constitute terms of every residential park agreement relating to the park. (2) A park owner must ensure— (a) that a written residential park agreement, or a document recording its terms, includes a copy of any park rules in force for the residential park at the time of the agreement; and (b) if the rules included in an agreement are later amended in accordance with Part 2—that the resident is notified of the amendment and provided with a written copy of the amendment. Maximum penalty: $25 000. Expiation fee: $1 200. 13—Cost of preparing written agreement The cost of preparing a written residential park agreement, or a document recording its terms, must be borne by the park owner. 14—Information to be provided by park owners to residents (1) A park owner must ensure that a resident is given the following material in accordance with this section: (a) a copy of any park rules in force for the residential park; (b) a written notice stating— (i) any kind of charge payable by the resident in accordance with requirements imposed under Part 4 Division 10; and (ii) any services provided to residents by the park owner on a fee‑for‑service basis; (ba) if electricity is supplied to the rented property via a connection point that is part of an embedded network—the prescribed information relating to the supply of electricity; (c) a written notice stating— (i) the park owner's full name and address for service of documents; and (ii) if the park owner is a company—the address of the registered office of the company; and (iii) contact details for a person who will, on behalf of the park owner, carry out emergency repairs to the rented property or common area facilities of the park; (d) a written notice stating— (i) whether the resident is entitled to the payment of any amount (other than a bond) at the time the resident ceases to occupy the rented property and, if such an entitlement exists, the amount that will be payable or the method that will be used to determine the amount that will be payable; and (ii) in the case of a residential park site agreement—the resident's rights to sell or relocate a dwelling on the site and any arrangements that may apply in the event that the resident, after the expiration of a period determined under the regulations, has been unable to sell the dwelling on the open market; and (iii) any other information required by the regulations; (e) an information notice; (f) in the case of a residential park site agreement—a disclosure statement; (g) in the case of a residential park site agreement—a site condition report; (h) educational publications prescribed by the regulations. (1a) The material referred to in subsection (1) must be given to the resident— (a) in the case of a residential park site agreement—at least 14 days before the park owner and resident enter into the agreement; or (b) in the case of a residential park tenancy agreement—before or at the time the park owner and resident enter into the agreement. (1b) Despite subsection (1a)(a), material referred to in subsection (1) relating to a residential park site agreement may be given to a resident less than 14 days before the park owner and resident enter into the agreement if— (a) the agreement is for a short term; and (b) the resident has, by notice in writing, waived the entitlement under subsection (1a)(a). (1c) A document of a kind referred to in subsection (1)(b) to (g) (inclusive) must be in a form approved by the Commissioner. (2) A park owner must ensure that a resident is given, before or at the time the resident commences occupation of the rented property under a residential park agreement, manufacturers' manuals, or written or oral instructions, about the operation of any appliances and devices provided for the use of the resident as part of the rented property or the common area facilities of the residential park. (3) If a person succeeds another as the park owner, the new park owner must, within 14 days, notify the resident in writing of— (a) the full name and address for service of documents of the new park owner; and (b) if the new park owner is a company—the address of the registered office of the company; and (c) contact details for a person who will, on behalf of the new park owner, carry out emergency repairs to the rented property or common area facilities of the park. (4) If a name or address or contact details of which the park owner is required to notify the resident under this section changes, the park owner must, within 14 days, notify the resident in writing of the change. (5) A park owner who refuses or fails to provide information as required by this section is guilty of an offence. Maximum penalty: $25 000. Expiation fee: $1 200. (6) A park owner must not knowingly make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of a particular) in information provided to a person under this section. Maximum penalty: $25 000. (7) In this section— embedded network has the same meaning as in the National Electricity Rules. 15—False information from resident A resident must not give a park owner false information about the resident's identity or place of occupation. Maximum penalty: $25 000. Expiation fee: $1 200. 16—Non-compliance not to affect validity or enforceability A residential park agreement is not rendered void or unenforceable by non-compliance with a requirement of this Part. Division 2—Discrimination against residents with children 17—Discrimination against residents with children (1) A person must not refuse to enter into a residential park agreement with another person on the ground that it is intended that a child should live on the rented property. Maximum penalty: $25 000. (2) A person must not— (a) instruct a person not to enter into a residential park agreement; or (b) state an intention (by advertisement or in any other way) not to enter into a residential park agreement, on the ground that it is intended that a child should live on the rented property. Maximum penalty: $25 000. (3) However, this section does not apply if— (a) the park owner, or an agent appointed by the park owner to manage the residential park, resides in a dwelling to which the residential park agreement relates or in a dwelling adjacent to that dwelling; or (b) the park rules for the residential park limit who may become residents in the park to persons who are over the age of 50 years; or (c) circumstances prescribed by regulation apply. Division 3—Continuation or reissue of certain agreements 17A—Agreement for fixed term continues as periodic agreement if not terminated If a residential park agreement for a fixed term has not terminated at or before the end of the fixed term, and is not required to be reissued in accordance with section 17B, the agreement continues— (a) as a residential park agreement for a periodic tenancy with a tenancy period equivalent to the interval between rental payment times under the agreement; and (b) with terms of agreement that in other respects are the same as those applying under the agreement immediately before the end of the fixed term. 17B—Certain site agreements to be reissued (1) If a prescribed fixed term agreement has not terminated at or before the end of the fixed term and no notice has been given by either party to the agreement in accordance with subsection (2)— (a) the agreement will, at the end of that fixed term, be taken to have been reissued as a residential park site agreement for the same fixed term and with terms of agreement that in other respects are the same as those applying under the agreement immediately before the end of the fixed term; and (b) the park owner must, within 28 days after the end of that fixed term, give the resident a copy of the reissued agreement in writing in accordance with Division 1. (2) If the park owner or resident under a prescribed fixed term agreement does not want the agreement to be reissued on the same terms in accordance with subsection (1)— (a) the park owner or resident may give written notice to the other party to the agreement that a variation of terms is sought; and (b) the park owner must, in consultation with the resident, undertake a review of the agreement (in accordance with any requirements prescribed by the regulations); and (c) following such a review, the park owner must reissue the agreement (as a written agreement that complies with the requirements of this Act) for such a term and on such other terms of agreement as may be agreed with the resident. (3) The period of notice under subsection (2) must be at least 90 days. (4) A party to an agreement that is the subject of a review under subsection (2) must not unreasonably withhold consent to a variation of terms sought by the other party to the agreement and an application may be made to the Tribunal for an order or orders if the other party thinks consent has been unreasonably withheld. (5) If a review of a residential park site agreement for a fixed term required under subsection (2) is not undertaken or is not completed before the end of the fixed term, the fixed term is taken to be extended until the review is completed and the agreement is reissued. (6) If a resident who occupies a residential park site under a periodic residential park site agreement has held a right of occupancy within the residential park for a period of 5 years or more— (a) the park owner must, in consultation with the resident, undertake a review of the agreement (in accordance with any requirements prescribed by the regulations); and (b) following such a review, the park owner must reissue the agreement (as a written agreement that complies with the requirements of this Act) for a fixed term agreed with the resident. (7) Despite any other provision of this section, an agreement is not required to be reviewed or reissued under this section if— (a) in the case of a prescribed fixed term agreement—the resident notifies the park owner, in writing, that the resident does not wish to continue to occupy the site under a fixed term agreement; or (b) in the case of a periodic residential park site agreement to which subsection (6) applies—the resident notifies the park owner, in writing and in compliance with any certification requirements prescribed by the regulations, that the resident waives the right to have the agreement reissued under this section; or (c) in any case—either party to the agreement has given the other party a notice of termination in accordance with this Act. (8) If a resident notifies a park owner in accordance with subsection (7)(a), the prescribed fixed term agreement continues as a residential park agreement for a periodic tenancy (in accordance with section 17A) and this section will not apply in relation to the agreement unless— (a) the resident later notifies the park owner, in writing, that the resident now wishes this section to apply to the agreement (in which case subsection (6) applies as if the resident had held a right of occupancy within the residential park for a period of 5 years or more); or (b) the agreement is assigned in accordance with section 48 (in which case this section applies to the assigned agreement as if the resident under the assigned agreement had held a right of occupancy within the residential park for a period of 5 years or more). (9) If a resident notifies a park owner in accordance with subsection (7)(b), the periodic residential park site agreement will continue and this section will not apply in relation to the agreement unless— (a) the resident later notifies the park owner, in writing, that the resident now wishes this section to apply to the agreement (in which case subsection (6) once again applies to the agreement); or (b) the agreement is assigned in accordance with section 48 (in which case this section applies to the assigned agreement as if the resident under the assigned agreement had held a right of occupancy within the residential park for a period of 5 years or more). (10) Without limiting the regulations that may be made for the purposes of subsection (2)(b) or subsection (6)(a), the regulations may prescribe limitations on the terms of agreement that may be varied, or the manner in which such terms may be varied, as a result of a review under this section. (11) A park owner who refuses or fails to comply with a requirement of this section is guilty of an offence. Maximum penalty: $50 000. Expiation fee: $2 000. (12) In this section— prescribed fixed term agreement means a residential park site agreement for a fixed term— (a) of 5 years or more; or (b) of less than 5 years if the resident has held a right of occupancy within the residential park for a period of 5 years or more. Part 4—Mutual rights and obligations of park owners and residents Division 1—Rents and other charges 18—Permissible consideration for residential park agreement (1) A person must not require or receive from a resident a payment, other than rent or a bond (or both), under a residential park agreement, or as a condition to entering into, renewing or extending a residential park agreement. Maximum penalty: $50 000. Expiation fee: $2 000. (2) However, the park owner may lawfully require and receive a payment of a class the park owner is authorised to require under Division 10. (3) For the purposes of subsection (1), a reference to a payment includes a reference to any 1 or more of the following: (a) an entry or exit fee; (b) a management fee; (c) a fee for amenities (or the improvement of amenities) provided at the residential park (commonly known as a "communal contribution fee"); (d) any other prescribed fee, regardless of how the payment is described by the person purporting to require or receive the payment from the resident. Note— For example, an entry fee that is purportedly required by a person from a resident and is described as "deferred rent" is a payment that the person is not permitted to require or receive under this section. 19—Rent in advance (1) A person must not demand or require another person to pay more than 2 weeks' rent under a residential park agreement before the end of the first 2 weeks of the period of occupancy under the agreement. Maximum penalty: $25 000. Expiation fee: $1 200. (2) If rent has been paid under a residential park agreement, a person must not require a further payment of rent until the end of the last period for which rent has been paid. Maximum penalty: $25 000. Expiation fee: $1 200. (3) A person must not require another person to give a post-dated cheque or other post-dated negotiable instrument in payment of rent under a residential park agreement. Maximum penalty: $25 000. Expiation fee: $1 200. 20—Method of payment of rent A park owner must not require that rent payments under a residential park agreement be made to the park owner or the park owner's agent at the rented property unless some reasonable alternative method of payment that does not involve personal attendance at the rented property has been offered by the park owner but not accepted by the resident. Maximum penalty: $35 000. Expiation fee: $2 000. 21—Variation of rent (1) The park owner may increase the rent payable under a residential park agreement by giving written notice to the resident specifying the date from which the increase takes effect. (2) However— (a) the right to increase the rent may be excluded or limited by the terms of the residential park agreement; and (b) if the residential park agreement is for a fixed term, the agreement is taken to exclude an increase in rent during the term unless the agreement specifically allows for an increase in rent; and (c) the date fixed for an increase of rent must be at least 12 months after the date of the agreement or, if there has been a previous increase of rent under this section, the last increase and, subject to subsection (3), at least 60 days after the notice is given. (3) If a rent control notice that has applied in respect of the rented property ceases to be in force, the park owner may, by notice given under this section within 60 days after the rent control notice ceases to be in force, increase the rent for the rented property from a date falling at least 14 days after the notice is given. (4) The rent payable under a residential park agreement may be reduced by mutual agreement between the park owner and the resident. (5) A reduction of rent may be made on a temporary basis so that the rent reverts to the level that would have been otherwise applicable at the end of a specified period. (6) If the rent payable under a residential park agreement is increased or reduced under this section, the terms of the agreement are varied accordingly. (7) This section does not affect the operation of a provision of a residential park agreement under which the rent payable under the agreement changes automatically on a basis set out in the agreement. (8) For the purposes of this section, a series of residential park agreements between the same parties and relating to the same site is to be treated as a single residential park agreement unless at least 12 months have elapsed since rent for the rented property was fixed or last increased. 22—Excessive rent (1) The Tribunal may, on application made by a resident within 30 days after receipt of a notice of rent increase, declare that the proposed increased rent is excessive. (2) In deciding whether the increased rent is excessive, the Tribunal must have regard to— (a) the general level of rents for comparable rented properties in the same or similar localities; and (b) the estimated capital value of the rented property at the date of the application; and (c) the outgoings for which the park owner is liable under the agreement; and (d) the estimated cost of services provided by the park owner and the resident under the agreement; and (e) the nature and value of furniture, equipment and other personal property provided by the park owner for the resident's use; and (f) the state of repair and general condition of the rented property; and (g) the amenity and standard of the common areas of the residential park; and (h) other relevant matters. (3) If the Tribunal finds, on an application under this section, that the increased rent is excessive, the Tribunal may, by order— (a) fix the rent payable for the rented property; and (b) fix a period (which cannot exceed 1 year) for which the order is to remain in force. (4) The Tribunal may, on application by the park owner, vary or revoke an order under this section if satisfied that it is just to do so. (5) If, while an order remains in force under this section, a park owner asks for or receives rent for the rented property to which the order relates exceeding the amount fixed by the order, the park owner is guilty of an offence. Maximum penalty: $25 000. Expiation fee: $1 500. (6) In this section— rent includes a payment that the resident is required by the park owner to make under Division 10. 23—Park owner's duty to keep proper records of rent (1) A park owner under a residential park agreement must ensure that a proper record is kept of rent received under the agreement. Maximum penalty: $20 000. Expiation fee: $1 200. (2) A person must not— (a) make a false entry in a record of the rent received under a residential park agreement; or (b) falsify the record in any other way. Maximum penalty: $25 000. 24—Duty to give receipt for rent (1) A person who receives rent under a residential park agreement must, within 48 hours after receiving the rent, give the person paying the rent a receipt stating— (a) the date on which the rent was received; and (b) the name of the person paying the rent; and (c) the amount paid; and (d) the period of occupancy to which the payment relates; and (e) the address of the rented property to which the payment relates. Maximum penalty: $25 000. Expiation fee: $1 200. (2) However, if the resident pays the rent into an account kept by the park owner or the park owner's agent at an ADI, and the park owner, or the park owner's agent keeps a written record containing the information required by subsection (1), a receipt need not be given. 25—Accrual and apportionment of rent (1) The rent payable under a residential park agreement accrues from day to day. (2) If rent is paid in advance, and the residential park agreement ends before the end of the period for which rent has been paid, the park owner must refund the appropriate proportion of the amount paid to the resident or apply it towards other liabilities of the resident to the park owner. 26—Abolition of distress for rent A park owner is not entitled to distrain goods of a resident for non-payment of the rent payable under a residential park agreement. Division 2—Bonds 27—Bond (1) A person must not— (a) require more than 1 bond for the same residential park agreement; or (b) require the payment of a bond exceeding 4 weeks rent under the agreement. Maximum penalty: $35 000. Expiation fee: $2 000. (2) The 4 weeks rent limit on the amount of the bond is calculated by reference to the rent, or if the rent varies, the lowest rent, payable during the first 6 months of the period of occupancy under the agreement (expressed as a weekly rent). 28—Receipt of bond and transmission to Commissioner (1) A person must, within 48 hours after receiving an amount paid by way of a bond, give the person who paid a receipt stating the date payment was received, the name of the person from whom the payment was received, the amount paid, and the address of the rented property to which the payment relates. Maximum penalty: $25 000. Expiation fee: $1 000. (2) A person must, within 7 days after receiving an amount paid by way of a bond, pay the amount to the Commissioner and at the same time lodge with the Commissioner a notice in the form approved by the Commissioner. Maximum penalty: $25 000. Expiation fee: $1 000. 29—Repayment of bond (1) An application may be made to the Commissioner for— (a) payment of the whole amount of the bond either to the park owner or the resident; or (b) payment of a specified amount of the bond to the park owner and the balance to the resident. (2) The application— (a) must be in a form approved by the Commissioner; and (b) may be made jointly by the park owner and the resident or by either the park owner or the resident. (3) If the application is undisputed, the Commissioner must pay out from the Fund the amount of the bond as specified in the application. (4) If an application is liable to be disputed, the Commissioner must give the respondent written notice of the application (in a form the Commissioner considers appropriate) and inform the respondent that, if the respondent wants to dispute the application, a written notice of dispute, in a form approved by the Commissioner, must be lodged with the Commissioner within 10 days after the date the notice is given to the respondent. (5) If the respondent does not give the Commissioner written notice of dispute, in a form approved by the Commissioner, within 10 days after the date the Commissioner's notice is given to the respondent, the Commissioner may pay out from the Fund the amount of the bond as proposed in the application. (5a) However, if the application is made by the park owner alone more than 12 months after the termination of the residential park agreement— (a) the Commissioner must refer the application to the Tribunal for determination; and (b) the Tribunal may authorise payment of the amount of the bond as proposed in the application if the Tribunal is satisfied, on the basis of information provided by the park owner, that the park owner is entitled to the payment. (6) If the Commissioner receives a written notice of dispute before the amount of the bond is paid out under subsection (5), the Commissioner must refer the dispute to the Tribunal for determination. (6a) Despite a preceding subsection, if— (a) the bond has been provided or paid on behalf of the resident by a third party prescribed by the regulations, or in circumstances prescribed by the regulations; and (b) the Commissioner is given notice of the third party's interest in accordance with the regulations, then— (c) the third party is entitled to make application to the Commissioner for the payment of the whole, or a specified part, of the bond; and (d) — (i) if the application is made with the consent of the park owner—the Commissioner must pay out the amount of the bond as specified in the application; or (ii) in any other case—the Commissioner must give the park owner and, if the resident is still in possession of the premises, the resident, written notice of the application (in a form the Commissioner considers appropriate) and— (A) if the Commissioner does not receive a written notice of dispute from the party or parties to whom the notice of the application was given within 10 days after the date on which the original notice is given—the Commissioner may pay out the amount of the bond as proposed in the application; or (B) in any other case—the Commissioner must refer the matter to the Tribunal for determination. (6b) If a payment is made under subsection (6a) and the resident is still in possession of the premises, the park owner may require the resident to provide a new bond in accordance with section 27. (6c) If— (a) the bond is provided on behalf of the resident by a third party prescribed by the regulations in circumstances prescribed by the regulations; and (b) the park owner makes application to the Commissioner for the payment of the whole, or a specified part, of the amount payable under the bond, then— (c) if the application is made with the consent of the third party—the Commissioner must pay out the amount as specified in the application; or (d) in any other case—the Commissioner must give the third party and, if the resident is still in possession of the premises, the resident, written notice of the application (in a form the Commissioner considers appropriate) and— (i) if the Commissioner does not receive a written notice of dispute from the party or parties to whom the notice of the application was given within 10 days after the date on which the original notice is given—the Commissioner may pay out the amount as proposed in the application; or (ii) in any other case—the Commissioner must refer the matter to the Tribunal for determination. (6d) If a payment is made under subsection (6c), the third party must reimburse the Fund to the extent of the payment. (7) For the purposes of this section— (a) an application is undisputed if it is a joint application by the park owner and the resident, or an application by the park owner that the whole of the amount of the bond be paid to the resident, or an application by the resident that the whole of the amount of the bond be paid to the park owner; (b) an application that does not fall into any of those categories is liable to be disputed; (c) if the application was made by the park owner, the resident is the respondent; (d) if the application was made by the resident, the park owner is the respondent. Division 3—Resident's entitlement to possession and quiet enjoyment 30—Vacant possession etc (1) It is a term of a residential park agreement that the resident is entitled to vacant possession of the rented property (except for a part of the rented property in respect of which a right of exclusive occupation is not given by the agreement) from the day the right of occupancy under the agreement begins. (2) It is a term of a residential park agreement that there is no legal impediment of which the park owner has, or ought to have knowledge, to the resident's occupation of the rented property as a place of residence for the period of operation of the agreement. 31—Quiet enjoyment (1) It is a term of a residential park agreement that— (a) the resident is entitled to quiet enjoyment of the rented property without interruption by the park owner or a person claiming under the park owner or with superior title to the park owner's title; and (b) the park owner must not cause or permit an interference with the reasonable peace, comfort or privacy of the resident in the resident's use of the rented property or with the reasonable use or enjoyment by the resident of common areas of the residential park; and (c) the park owner must take reasonable steps to prevent other residents of the residential park from causing or permitting interference with the reasonable peace, comfort or privacy of the resident in the resident's use of the rented property or with the reasonable use or enjoyment by the resident of common areas of the residential park. (2) If the park owner contravenes the term of the agreement arising under subsection (1) in circumstances that amount to harassment of the resident, the park owner is guilty of an offence. Maximum penalty: $50 000. (3) The liability to be prosecuted for the offence is in addition to civil liability for breach of the agreement. Division 4—Residential park tenancy agreement—security of dwelling 32—Residential park tenancy agreement—security of dwelling (1) It is a term of a residential park tenancy agreement that— (a) the park owner must take reasonable steps to provide and maintain the locks and other devices that are necessary to ensure the dwelling comprised in the rented property is reasonably secure; and (b) the park owner or the resident must not alter or remove a lock or other security device or add a lock or other security device without the consent of the other. (2) A park owner, park owner's agent or resident who, without reasonable excuse, contravenes the term of the agreement arising under subsection (1)(b) is guilty of an offence. Maximum penalty: $35 000. (3) The liability to be prosecuted for the offence is in addition to civil liability for breach of the agreement. Division 5—Access to residential park 33—Access to residential park (1) It is a term of a residential park agreement that the park owner— (a) must provide 24 hours vehicular access for the resident to the rented property; and (b) must provide 24 hours access for the resident to the residential park and any common area bathroom and toilet facilities of the park; and (c) must provide access during all reasonable hours for the resident to any other common area facilities of the park. (2) It is a term of a residential park agreement that, if the park owner has installed a lock or other security device (such as boom gates) to restrict entry to the residential park, or some part of the residential park to which it is agreed that the resident may have access, the park owner— (a) must give a copy of the key or any other opening device or information required to open the security device to the resident— (i) in the case of a security device in place at the commencement of the agreement—at or before the commencement of the agreement; and (ii) in the case of a security device installed or changed during the term of the agreement—before the security device is locked or activated; and (b) must maintain the security device in working order. (3) A park owner or park owner's agent who, without reasonable excuse, excludes or restricts, or attempts to exclude or restrict, access by a resident to the residential park or a part of the park in contravention of a term of a residential park agreement arising under this section is guilty of an offence. Maximum penalty: $25 000. (4) The liability to be prosecuted for the offence is in addition to civil liability for breach of the agreement. Division 6—Park owner's obligations in relation to condition of rented property and common areas 34—Cleanliness It is a term of a residential park agreement that the park owner— (a) must ensure that the rented property is in a reasonable state of cleanliness when the resident enters into occupation of the rented property; and (b) must keep the common areas of the residential park and any garden or other areas in the park in a reasonable state of cleanliness; and (c) must arrange for the regular collection of the garbage of residents and any other garbage in the residential park. 35—Park owner's obligation to repair (1) It is a term of a residential park agreement that the park owner— (a) must ensure that the rented property and the common areas of the residential park are in a reasonable state of repair when the resident enters into occupation of the rented property and must keep them in a reasonable state of repair having regard to their age, character and prospective life; and (b) must comply with statutory requirements affecting the rented property and the common areas of the residential park; and (c) must, if required to carry out repairs to common area bathroom, toilet or laundry facilities, minimise inconvenience or disruption to the resident and, if necessary, provide temporary substitute facilities. (2) The obligation to repair applies even though the resident had notice of the state of disrepair before entering into occupation. (3) However, the park owner will not be regarded as being in breach of the obligation to repair unless the park owner— (a) has notice of the defect requiring repair; and (b) fails to act with reasonable diligence to have the defect repaired. (4) If— (a) rented property is in a state of disrepair that does not arise from a contravention of the residential park agreement by the resident; and (b) the state of disrepair is, unless remedied, likely to result in personal injury or damage to property or undue inconvenience; and (c) the resident notifies the park owner of the state of disrepair or makes a reasonable attempt to do so; and (d) the resident incurs costs in having the state of disrepair remedied; and (e) the repairs are carried out by a person who is licensed to carry out the necessary work and the person provides the park owner with a report on the work carried out and the apparent cause of the state of disrepair, the resident is entitled to recover from the park owner the reasonable costs of having the repairs carried out. (6) The obligation to repair includes an obligation to maintain all trees in the residential park in a condition that does not create any unreasonable risk to the safety of residents or their property. Division 7—Resident's obligations in relation to rented property and common areas 36—Resident's responsibility for cleanliness and damage (1) It is a term of a residential park agreement that the resident— (a) must keep the rented property in a reasonable state of cleanliness; and (b) must notify the park owner of damage to the rented property; and (c) must notify the park owner of damage to any common area of the residential park caused by the resident