Emma McGuire: Land lease communities tenant advocate
03/11/2016
Tell us about your role at the Tenants’ Service
I work as a tenant advocate, which involves giving advice to clients under the relevant legislation, whether they are tenants, occupants in boarding houses or residents in land lease communities. It also consists of advocating on clients’ behalf, representing them at the NSW Civil & Administrative Tribunal (NCAT) and carrying out community education.
My role this year has involved a specific focus on matters arising out of the Residential (Land Lease) Communities Act 2013 (NSW) and assisting home owners under the Act.
What are the top three issues you have been dealing with for home owners in land lease communities?
I have had quite a number of home owners contacting me with concerns over community rules. Some of these matters have been procedural issues, such as rules not being amended in accordance with the Act. I have assisted in resolving these matters in a couple of different ways depending on the home owner’s wishes. I have written letters to operators on behalf of the resident, drawing their attention to the relevant provisions of the Act with a request they amend or introduce the community rules as required. I have also assisted home owners to lodge applications with NCAT and obtain an order setting aside the community rules.
More commonly though, I have had home owners questioning the substance of individual community rules, such as whether they fulfil the requirement under section 86(3) of the Act that they be ‘fair and reasonable’. I have assisted some of these home owners in going to NCAT to challenge the rules in question. I have also obtained successful outcomes by engaging directly with operators on the issue as an alternative to the Tribunal, demonstrating that there are always multiple approaches to the same issue.
For example, I recently had a request for assistance in relation to a rule which regulated the opening hours for various facilities in the community. A number of home owners took issue with the restrictive access hours as they felt they were not getting the full benefit of the facilities, particularly those who worked long hours and found themselves outside the opening hours by the time they arrived home. I assisted the home owners by writing a letter to the operator which explained the basis for the home owner dissatisfaction with the rule and requested the operator review the community rule. This negotiation was successful and the operator agreed to amend the community rule, ensuring fairer and more open access to facilities for all home owners.
If you could change one section of the RLLC Act, which would it be and why?
Given the opportunity, I would definitely seek to change aspects of section 45 of the Act, which relates to assignment. This is an important right for home owners when they decide to sell their home and involves the assigning or transfer of their site agreement to the purchaser. I think Parliament has done a great disservice to home owners in the manner it has constructed section 45.
There have been a couple of conflicting NCAT decisions on assignment which has created a sense of uncertainty regarding whether an operator can refuse consent for assignment, even if to do so would be unreasonable. A lack of certainty is damaging for home owners, because it complicates what can
already be a stressful time, during the sale of their home. Uncertainty is also problematic for advocates because it can make it difficult to give clear and effective advice. Tenants Advice and Advocacy Services and the Tenants’ Union are continuing to work hard on the concerns surrounding assignment, but for now it is clear there are significant issues with assignment under the new Act which need to be overcome.
What tips would you give to someone who is considering becoming a home owner in a land lease community?
As with most things in life, living in a land lease community is not for everyone. I’ve met home owners who have lived in a land lease community for two or three decades and who consider it one of the best decisions they have made. Equally, I’ve also met residents who have wondered what they have gotten themselves into not long after moving in.
I would advise prospective home owners about how important it is to do their research – on the land lease community itself, the operator, and on the legislation. I recommend speaking with some existing home owners to get a feel for the community before committing to anything. Of course, prospective home owners should always seek independent advice before entering into a site agreement – I would suggest they make contact with their local Tenants Advice Service where advocates can assist them by talking through these issues.
For free, independent advice, contact your local Tenants' Advice and Advocacy Service.