Community by definition

By Emma McGuire, Tenant Advocate, Mid Coast Tenants Advice & Advocacy Service

In the vast majority of land lease community cases that we encounter, it is generally clear and accepted by all parties that there is a land lease community in operation and subsequently that the Residential (Land Lease) Communities Act 2013 (RLLC Act) applies to the relationship between operator and home owner.

In 2020 something a little out of the ordinary came to our attention. Our Service encountered a number of permanent home owners living in pop up communities who were unsure of what rights they might have and what legislation applied to their situation. An example of these communities are homes established in a number of showgrounds and similar multi-use community venues, amongst others. In some cases, the operator may have received an approval to operate as primitive camping grounds from the local council, so really are only permitted to cater for short-term tourists and not long-term permanent home owners. While in other cases there has been no approval to operate issued of any kind under the Local Government Act 1993.

For home owners who find themselves living in a community without an approval to operate, the situation can be a precarious one. In some cases, council intervention and/or termination of site agreements can follow for home owners in these communities (see also article on Local Government Complications).

It is often the case that residents in these types of communities are extremely vulnerable and may not have the ability to move or, if they do, have nowhere else to go. They may not have any written agreement with the operator and may have little understanding of their rights or the complexities around relevant local government regulations.

In one particular community where we assisted residents, there was no approval to operate of any kind. We received a number of calls from residents being threatened with arbitrary eviction and also from concerned third parties. There was an escalation of events when some residents were forcibly evicted from the community by the operator and with the assistance of NSW Police. This occurred without any orders from the NSW Civil and Administrative Tribunal (NCAT). Of course, where the RLLC Act applies, a site agreement can only be terminated in accordance with the Act and it is an offence to recover possession of a site unless there is a warrant issued by the Tribunal and executed by the Sheriff’s officers. However, the operator in this instance sought to deny the application of the RLLC Act, including by asserting that because there was no approval to operate, this was not a  land lease community and as such they were able to evict residents at will.

Helpfully though, section 5(c) and the section 4 definition of ‘community’ in the RLLC Act specifically accounts for the situation where a land lease community does not have an approval to operate as required under the Local Government Act 1993. The RLLC Act makes it clear that it captures and applies to all communities regardless of their compliance with local government legislation and regardless of any descriptors used in relation to the community. This approach is important to ensure vulnerable home owners are not left without the protections of the Act merely because an operator has failed to comply with their obligations to obtain an approval from the relevant Council before commencing to operate.

Our Service assisted some of the home owners in this situation  to apply to the Tribunal for an order under section 9 of the RLLC Act declaring that there was a community to which the Act applied and also that there was an oral site agreement in force between the parties.

The proceedings before the Tribunal involved consideration of the question ‘when is a land lease community a land lease community?’ The Act naturally provides guidance on this issue. Section 5 states that the RLLC Act applies to ‘all communities’ and we can find the definition of ‘community’ or ‘residential community’ under section 4 of the Act.

Despite descriptions used by the operator in an attempt to categorise the place as something other than a land lease community, the community in this particular case had many of the usual indicators you would expect. There was of course an area of land (in this case owned by the operator). There were ‘sites’ (although in some cases unmarked) where people placed their homes (that term is defined under section 4 of the Act). Additionally, there was evidence of the operator advertising the leasing of sites and site fees were paid fortnightly to the operator in exchange for use of the sites along with rudimentary common facilities.

Also relevant was the fact that the home owners we assisted lived in their homes in the community permanently and had done so for a number of years. They had no principal place of residence other than in the community. There was also no restriction, ever indicated or enforced, on how long the home owners could live in their homes for any stretch of time (and therefore this was clearly not an agreement under the Holiday Parks (Long-term Casual Occupation) Act 2002.)

These factors demonstrated that there was a land lease community in operation within the meaning of the RLLC Act. Further, they demonstrated the home owners in question had a site agreement under the Act and were protected accordingly. For those living in such an uncertain situation, the Act’s protection can be the difference between a safe and secure home on one hand and potential eviction by police and homelessness on the other.

Overall, the question of whether a land lease community exists and whether the RLLC Act applies is always one of substance over form. Regardless of how the operator may describe the community, how it may look or present itself, or how strongly the operator attempts to classify it as a different arrangement which lies beyond the application of the Act, it is an objective question to be answered by the Tribunal. The Tribunal will always have regard to the definitions contained in the Act and the facts of each matter. If in essence an operator is leasing sites to people to place their homes on and live in permanently, then it is likely a land lease community is in existence. With respect to issues which may arise such as non-compliance with local government legislation, a failure to be included in NSW Fair Trading’s Register, or other regulatory issues – these failures cannot be relied on by an operator as a means of evading the application of the RLLC Act.

This article was published in Outasite magazine issue 7. Outasite is published annually. Outasite Lite email newsletter, is sent several times a year – subscribe here. All past issues are available in the archive.