Is age just a number?
12/05/2016
Julie Lee, Tenants' Union Residential Parks Officer
I was recently delivering an information session to park residents about the new Act when I was asked a question about a term of the site agreement restricting the sale of homes to people over a certain age.
My response that an age restriction term could be invalid was not popular and it left some in the room feeling uneasy about the community they live in.
It is not unknown, or even uncommon for residential parks or communities to be marketed at certain age groups, for example over 50s. They are often described as lifestyle villages, or retirement living and the advertising is full of images of happy older people living active lives in harmonious communities. There is no doubt that this type of advertising attracts potential home owners in the desired age bracket, but is it misleading? It could be.
These residential parks operate within the boundaries of the Residential (Land Lease) Communities Act 2013 (The Act). The Act provides for community rules to be put in place about the use, enjoyment, control and management of the community. This is where references to age restrictions are commonly found. However, a community rule is of no effect if it is inconsistent with the Act or any other Act or law. Likewise, an additional term of a site agreement must not contravene this or any other Act or law.
What this means is that if a community rule or a term of an agreement seeks to restrict the sale of homes only to people over a certain age it could be invalid because it contravenes anti discrimination legislation. The Anti Discrimination Act 1977 (NSW) and Age Discrimination Act 2004 (Commonwealth) make it unlawful to discriminate against another person regarding the provision of accommodation or services on the basis of age.
In 2001 the Residential Tribunal heard a case about this issue. The operator argued that the age restrictions were understood and supported by the residents, but the Tribunal Member found that age restrictions were a breach of the NSW Anti Discrimination Act.
Residents’ support for age restrictions is the reason the issue is controversial and difficult to discuss, but it is an important one to explore. So, setting discrimination and legal issues aside for a moment, lets look at the impacts age restrictions can have more generally.
Restricting the sale of homes in communities to people over a certain age may provide benefits for the community, but what about the individual selling the home? Advertising and age restrictions reduce the pool of potential buyers for a home to one section of the community. By locking out potential purchasers the sale price of a home could be impacted. One purchaser who meets the age restriction may offer less than the asking price and another, who is only a couple of years shy of the age restriction may meet the asking price, but the vendor may have to accept the lower offer on the basis of age.
And what about family? Put yourself in the position of a home owner with an adult child who has fallen on hard times, or become ill and in need of care. They could be prevented from living with their parents and receiving their support because of age restrictions in the community. What if this was a grandchild and the only other option was for the child to go into residential or foster care – would you still support age restrictions?
No-one thinks that these things will happen to them, but they can and they do and that is one reason some home owners do not support age restrictions in residential communities. But, there are others.
The idea that someone aged 51 is suitable for an over 50s lifestyle village but someone aged 49 is not is a strange one. It does not take into account the personality, maturity or lifestyle of either person and instead assumes that someone who is over 50 will fit into the community whereas someone who is 49 will not. There are many people out there over the age of 50 who still lead wild lives and many under that age who do not and for this reason age restrictions are no guarantee of a quiet and harmonious community. Age restrictions can not only lead to communities missing out on home owners who are entirely suitable (except for their age) but also people who would be valuable members of the community. People should not be judged on age alone.
Ultimately though it is the law that decides, and the only reference we currently have is the case mentioned earlier from 2001 that found age restrictions in residential parks are a breach of the Anti Discrimination Act 1977 (NSW).