GUBU - Grotesque, unbelievable, bizarre & unprecedented

By Paul Smyth, Land Lease Communities Solicitor at the Tenants’ Union of NSW

In this column we invite you to share grotesque, unbelievable, bizarre and unprecedented (GUBU) goings-on in land lease communities in NSW.

Unconscionable operator conduct

This story concerns an  elderly couple who are existing permanent residents and home owners living in their home in a residential land lease community  located on the far south  coast of NSW. The home owners raised some concerns with the operator after receiving a notice of site fee increase that made reference to their annual holiday van... they do not have a holiday van on site. The home owners became even more concerned with the response they later received from the operator and community manager.

By way of background, it’s important to note that there was no written agreement between the parties. The home owners had asked the previous operator for a written agreement during December 2015 when they purchased their home on site from the operator who was also the vendor of the dwelling. The operator promised to enter into a written agreement but ultimately no written agreement was ever signed by the home owners and the operator. The residential site is clearly designated under a Bega Valley Shire Council s68 Local Government Act 1993 approval to operate as a long-term site not a short term site. So there’s no legal impediment to the nature of their occupation in the home i.e. as permanent residents.

The current operator purchased the community about two years ago. To alleviate the home owners’ concerns the operator offered them security of tenure. However, the operator drew  up a Sale Agreement and, in  a cover letter with the proposed Deed of Sale, the operator asserted that the home owners had purchased an ‘annual dwelling’ and accordingly claimed the home owners were covered under  the Holiday Parks (Long-term Casual Occupation) Act 2002. The operator offered less than 25% of the original purchase price to the home owners for their home. The Sale Agreement said that, if the purchase was completed, "in return the park owner agrees to provide you with security of tenure by entering into a standard lease agreement to rent out the dwelling and occupy the dwelling as your residence." The initial rent proposed represented an increase of more than 110% per week. The operator also said in correspondence that it "..hopes this offer provides some certainty to your situation”. A residential tenancy agreement provides no such security of tenure. We at the Tenants’ Union are unfortunately not as astonished as the home owners to see such brazen behaviour by the operator – effectively trying to asset strip vulnerable elderly people and leave them in a detrimental legal position regarding their security of tenure.

Thankfully the home owners obtained legal advice and commenced Tribunal proceedings. The good news is the operator finally provided a compliant written site agreement to the home owners. 

This article was published in Outasite magazine issue 12. Outasite is published once or twice annually. Outasite Lite email newsletter is sent several times a year – subscribe here. All past issues are available in the archive.