Site maintenance: Who's responsible?
29/08/2017
We never thought we would have to explore the question of responsibility for site maintenance because the answer seems so obvious – the operator owns the land so they have to maintain it. But that assumption is being challenged by some operators who are attempting to pass on significant repair and maintenance costs to home owners, exploiting what appears to be poor drafting in the Residential (Land Lease) Communities Act 2013 (the Act).
To figure out why this problem has only recently arisen we need to look back to the Residential Parks Act 1998. Section 24 was very clear:
- It is a term of every residential tenancy agreement that:
(a) the park owner must provide the residential premises (for instance, the moveable dwelling and the residential site or the residential site only) and the common areas of the park in a reasonable state of cleanliness and fit for habitation by the resident, and
(b) the park owner must provide and maintain the residential premises in a reasonable state of repair.
Under the Parks Act tenancy and site agreements could be one and the same so we can read this section as applying to site agreements. What it means in plain English is that the park owner had an obligation to provide and maintain the residential site in a reasonable state of repair.
Jump forward to the Residential (Land Lease) Communities Act and what we find instead is that section 37(k) requires the operator to “ensure a residential site is in a reasonable condition, and fit for habitation, at the commencement of a site agreement for the site”. The ongoing obligation to maintain the site is missing.
Add to that section 41 of the Act whereby the operator is entitled to issue a home owner with a written notice requiring work to be carried out if the operator believes that “the residential site or home located on it is seriously dilapidated” and it becomes arguable that home owners may be responsible for the repair and maintenance of residential sites.
The Tenants’ Union is aware of a recent case where an operator issued a notice to a home owner requiring work on the grounds that the residential site was dilapidated. The home owner did not carry out the work and the matter proceeded to the NSW Civil and Administrative Tribunal. The Tribunal found that the site was not dilapidated but the Member, in her remarks did say that she believed the home owner was responsible for a retaining wall on the site that was constructed by the operator. We do not share this view but it does illustrate the potential problem facing some home owners.
An alternative view
Despite the best efforts of the drafters, law is often unclear and it comes down to interpretation. That is the case regarding site repair and maintenance under the Residential (Land Lease) Communities Act.
The Tenants’ Union does not believe that it was the intention of the Government to transfer the responsibility for site repairs and maintenance to home owners. The best way to make this clear would be to amend the Act but in the meantime home owners can look to their site agreements and other parts of the Act to demonstrate what the operator is responsible for.
The Act applies to all site agreements whether they were entered before or after commencement. Site agreements entered into under the Residential Parks Act all have the standard term: “The park owner agrees to make sure the residential site, everything provided with the residential site for use by the resident, and the common areas of the park, are reasonably clean and fit to live in or use”.
The obligation on the operator to ensure the site is fit to live in or use is ongoing. And, because the site agreement continues under the Act, so does the operator’s obligation.
The Act places a couple of responsibilities on home owners regarding the site. One is to keep it tidy and free of rubbish and the other is to notify the operator if the site becomes damaged. The Act does not oblige the home owner to repair or maintain the site.
So while the law may not be as clear cut as it used to be, it is our view that the obligation to repair and maintain the residential site still lies with the operator.
While the law may not be as clear cut as it used to be, it is our view that the obligation to repair and maintain the residential site still lies with the operator.