Community rules clarified
29/08/2017
The Residential (Land Lease) Communities Act 2013 (the Act) brought many changes to land lease communities (residential parks) and one of the biggest was in the area of community rules. How rules are made and what they can be about has not changed significantly but who they apply to and how they are enforced has.
The Act requires compliance with community rules by all residents plus the owner and operator of the community.
Residents have a further obligation to use reasonable endeavours to try to ensure compliance with the rules by any occupants who live with them and anyone they invite into the community as their guest.
Operators have a similar obligation. They must try to ensure compliance by anyone they invite into the community plus their employees and of course all of the residents and occupants.
Operators are also responsible for the enforcement of community rules. The Act requires that they ensure that rules are enforced and interpreted consistently and fairly.
The obligations on the operator seem pretty clear, but the requirement that everyone complies with the rules has created interesting situations in communities where holiday accommodation is also provided.
In some mixed communities holiday makers and long-term casuals are in different sections of the community and sometimes a fence and gate separate the different sections. In others, holiday makers and long-term casuals are mixed in amongst home owners. Regardless of how the community is organised, for the duration of their stay these holiday makers are occupants and the community rules therefore apply to them. Additionally, the operator has an obligation to try to ensure compliance.
Age restrictions in community rules
In the last issue of Outasite we reported on a decision by the NSW Civil and Administrative Tribunal (NCAT) that found that communities can have a rule that sets an age limit for occupants, for example they must be over 50 years old. Whilst we believe the decision was flawed, we are aware that since it was made a number of communities have introduced new rules that set age limits. If those communities also contain holiday accommodation the law requires those holiday makers to meet the age limit, but we are aware that this is not how it is always being interpreted or applied.
We have heard from home owners who live in mixed communities with age restrictions that holiday units are regularly occupied by families with young children. The operators of these communities are failing to enforce the rules fairly and consistently and are therefore in breach of the Act.
We checked this with NSW Fair Trading and they confirmed that community rules apply to everybody – all occupants of the community including holiday makers, tenants, home owners, visitors, short-term casuals and the operator.
Home owners in mixed use communities must be treated fairly when it comes to community rules. If they are required to abide by a certain rule, so is everyone else in the community. Operators can’t have a rule that applies only to home owners.
To put this in the context of age restrictions, if a community has a rule that all occupants must be over the age of 50, the rule applies to home owners, holiday makers and long-term casuals. If the rule does not apply to everyone then it cannot be a rule – it’s as simple as that.
If you live in a mixed community where the rules are applied differently to holiday makers and casual occupants you may be able to get the rules changed. Contact your local Tenants’ Advice and Advocacy Service for free advice.