Holding operators to account when on fixed method site fee increases

By Eloise Parrab, Land Lease Communities Office at the Tenants' Union of NSW

In our last edition of Outasite we discussed the trend toward fixed method site fee increases. One of the downsides to this method that we highlighted is there is less incentive for operators to spend money maintaining the community. The fixed method site fee increase cannot be challenged at the NSW Civil and Administrative Tribunal (NCAT) in the same way as the by notice site fee increase. There is no way to dispute the amount of a fixed method increase even if the operator has clearly not been spending money maintaining the community. Due to this trend we wanted to ensure home owners are aware of other options open to them to ensure that repairs and maintenance are carried out by the operator in their community.

The Residential Land Lease Communities Act 2013 outlines the operators responsibilities related to maintaining the community. They include:

• Ensuring the common areas are in a reasonable state of cleanliness and repair
• Ensuring the community is reasonably safe and secure
• Taking reasonable steps to ensure common areas are free of vermin and weeds
• Ensuring the times they (or managers they appoint) are available to be contacted are reasonable
• Having in place emergency evacuation procedures
• Taking reasonable steps to ensure home owners always have access to their sites and common areas
• Maintaining all services and facilities required by the development consent for the community to be available for the life of the community
• Establishing and maintaining reasonably accessible and secure mail facilities for the home owners
• Ensuring that all trees in the community are properly maintained

Some common examples of an operating not complying with these obligations are:

• Tennis courts in the community are run down and the playing surface has become damaged and the nets are torn
• Internal roads in the community full of potholes and no work being done to maintain them so a home owner can safely drive in and out of the community
• On site office/shop opening hours reduced from 4 hours to 30 minutes a day
• Weeds growing out of control in common area gardens

The first step in holding the operator accountable for their responsibility is to put your request in writing. It’s a good idea to give them a deadline to do the work you have requested or to provide a response. Taking photos of the issue is also a good idea. If you can email them to the operator it helps to show exactly what the issue is you are asking them to address.

If the operator does not respond or doesn’t take any reasonable steps to comply with their obligations once you have alerted them to the issue a home owner can lodge an application at the Tribunal. There are time limits for lodging applications at the Tribunal. You can speak to your local Tenants Advice and Advocacy Service to get advice on time limits and how to apply to the Tribunal. If you would prefer to not make an application at the Tribunal you could contact NSW Fair Trading and lodge a complaint and request they speak to the operator on your behalf about the issue.

In addition to seeking orders for the operator to comply with their responsibilities a home owner can also seek a reduction in site fees if the standard or amenity of the community’s common areas has decreased substantially since the home owner signed their site agreement. The same applies if a community service or facility has been withdrawn or substantially reduced since the home owner signed their site agreement. This reduction also applies if an operator advertised to a home owner that a particular service or facility would be provided in the community and it never eventuated. The amount that the Tribunal has reduced site fees in previous matters is relatively small but if a home owner is going to pursue orders at the Tribunal for an operator to comply with their responsibility related to maintaining the community it is worthwhile also pursuing an order for a site fee reduction.

Next time you receive your fixed method site fee increase and look around the community and see that it’s not being well maintained we encourage you to write to the operator and ask them to spend some of their profits on maintaining your community.

This article was published in Outasite magazine issue 9. 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.