New rules for operators
03/11/2015
During the review of the Residential Parks Act 1998 one of the key issues raised by residents was the conduct of operators. Many stories were told about interference with the sale of homes, harassment and intimidation by operators. The Residential (Land Lease) Communities Act 2013 contains a number of new provisions in relation to operator behaviour, including new rules of conduct.
The first new provision relates to site agreements. An operator must not induce anyone to enter into an agreement by making any statement, representation or promise that they know to be false, misleading or deceptive. A home owner who is so induced by the promise of a facility or service (in writing) that is not provided can seek to have their site fees reduced by the Tribunal.
In relation to trades people and service providers, an operator must not require a resident to purchase or lease goods or services from a particular person or restrict a resident’s right to purchase or lease from a person of their choice. However, an operator can place reasonable restrictions on trades people or service providers if they have previously caused problems in the park.
An operator or close associate must not engage in retaliatory conduct against a home owner if the retaliation is due to: the home owner making a complaint to a government agency about the operator; the home owner making an application to the Tribunal; or the home owner taking action to promote the establishment of a residents committee.
Retaliatory conduct includes amending community rules to the detriment of the home owner, giving or threatening to give a termination notice and withdrawing or withholding a service or use of a facility.
The Act has stronger and more detailed provisions relating to interference with the sale of homes.
Schedule 1 of the Act sets out rules of conduct, setting out ten requirements for operators.
The Act requires operators to observe the rules of conduct and creates an offence for contravention of the code without reasonable excuse. The maximum penalty for corporations is $11,000 and $5,500 in any other case.
NSW Fair Trading is responsible for enforcement action and residents can and should make complaints when operators do the wrong thing.
Details of any enforcement or disciplinary action will be published in the Residential Parks Register.
Rules of Conduct for Operators
1. The operator must have knowledge and understanding of all of the relevant legislation.
2. An operator must act honestly, fairly and professionally with all parties in a negotiation or transaction and must not mislead or deceive any party.
3. An operator must exercise reasonable skill, care and diligence.
4. An operator must not engage in high pressure tactics, harassment or harsh or unconscionable conduct.
5. An operator must not disclose confidential information about a resident unless the resident authorises it, or the law permits or compels it.
6. An operator must take reasonable steps to ensure that people employed in the community comply with the law.
7. When acting as a selling agent for more than one home in a community the operator must act fairly and advise prospective purchasers about all available homes.
8. An operator must not put out false or misleading information in order to attract residents to the community.
9. An operator must not request a signature on any incomplete document.
10. An operator must not make false representations about the legislation or site and tenancy agreements.