Residential (Land Lease) Communities Act 2013

This Act is the Residential (Land Lease) Communities Act 2013.

This Act commences on a day or days to be appointed by proclamation.

The objects of this Act are as follows—

to improve the governance of residential communities,

to set out particular rights and obligations of operators of residential communities and home owners in residential communities,

to enable prospective home owners to make informed choices,

to establish procedures for resolving disputes between operators and home owners,

to protect home owners from bullying, intimidation and unfair business practices,

to encourage the continued growth and viability of residential communities in the State.

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—

the spouse or relative of the operator,

an employee or agent of the operator,

a company of which the operator is a director, employee or agent,

a person who has a relationship with the operator that is of a kind prescribed by the regulations.

Commissioner means—

the Commissioner for Fair Trading, Department of Customer Service, or

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 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

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—

any caravan or other van or other portable device (whether on wheels or not) other than a tent, used for human habitation, or

a manufactured home as defined in the Local Government Act 1993, or

any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.

home owner means—

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

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

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—

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

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

a mortgagee in possession of a community for which site agreements are in force, or

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—

the owner of land on which the community is located, or

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

a mortgagee in possession of a community for which site agreements are in force, or

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—

electricity,

gas,

sewerage,

water,

another service prescribed by the regulations.

utility charge means—

for electricity—a daily supply charge or usage charge for the supply of electricity, or

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.

If there are 2 or more operators of a community—

a reference (however expressed) in this Act to the operator is a reference to any one or more of them, and

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.

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.

Notes included in this Act do not form part of this Act.

This Act applies to all communities—

whether existing immediately before or coming into existence after the commencement of this section, and

whether described as residential parks, caravan parks, manufactured home estates, communities or otherwise, and

whether or not any relevant approval for them has been obtained under the Local Government Act 1993, and

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.

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.

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.

This Act applies to a site agreement until it is terminated in accordance with this Act.

This Act does not apply to the following arrangements made in good faith—

an occupation agreement to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies,

an arrangement for occupation of a residential site for holiday purposes,

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,

an arrangement for accommodation in a community for a full-time employee of the operator or owner,

any other arrangements prescribed by the regulations.

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.

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.

This Act does not apply to the following places—

a place owned or managed by a co-operative,

a place that is wholly subject to a strata scheme or community scheme,

a place owned by a company title corporation occupied by shareholders of the corporation,

any other place prescribed by the regulations.

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.

The Tribunal may, on application by any person, make an order declaring that—

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

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

a specified contract, agreement or arrangement of a kind referred to in section 7 was or was not made in good faith.

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.

The regulations may exempt from the operation of this Act or the regulations or any specified provision of this Act or the regulations—

any specified community or other place or any specified class of communities or other places, or

any specified agreement or any specified class of agreements.

An exemption may be unconditional or subject to conditions.

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.

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—

whether or not it is a site agreement, and

whether or not it is a tenancy agreement, and

whether it is oral or wholly or partly in writing, and

whether it is or was made or entered into before or after the commencement of this section.

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.

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.