In October 2018, we wrote an article discussing the Residential Parks Amendment Bill which was set to introduce significant changes to the Residential Parks Act 2007 (Act).
Part of the Residential Parks Amendment Bill subsequently came into effect on 21 February 2019 incorporating some, but not all, of the proposed changes into the Act. It is understood that the remaining amendments will come into operation later, although exact time frames are still to be determined.
Of the changes introduced, it was those in respect to periodic tenancies that are the most significant.
Other changes relate to the powers of the South Australian Civil and Administrative Tribunal (SACAT) and the Commissioner of Consumer Affair’s (Commissioner) functions.
Periodic tenancies and the definition of ‘short term’
Section 4 of the Act specifies that a residential park agreement entered into for fixed short term is taken to be an agreement for a periodic tenancy with a period equivalent to the length of the fixed term.
Section 4 may apply unless the park owner can establish:
- that the resident genuinely wanted an agreement ending at the end of a fixed short term and the term was fixed at the resident’s request; or
- before an agreement was entered into, the park owner gave the resident a notice containing a warning in the form approved by the Commissioner and the resident signed a statement in the form approved by the Commissioner acknowledging that the resident did not expect to continue in occupation.
The amendment to section 4 included the change in wording from ‘short fixed term’ to ‘fixed short term’. This carried a consequential amendment in the definition of ‘short term’ in section 3(5).
Section 3(5) now defines the phrase ‘short term’ in more detail.
The amended section 3(5) also defined what is meant by a long term agreement. The new definition is ‘…a residential park agreement will be taken to be for a short term if it is for a term of 90 days or less (and all other residential park agreements will be taken to be for a long term)’.
In the case of fixed long term agreements, if an agreement is not terminated at the end of the term, it continues as a residential park agreement for a periodic tenancy.
In this case, the periodic tenancy intervals are equivalent to the intervals between the rental payment times under the terms of the agreement (section 53 of the Act). This section is important if there are tenancies at a Tourist Park that have expired as the residents may occupy the site under a periodic tenancy.
Section 4 and section 53 are important for the enactment of the new subsection in section 71. Section 71 gives the right to park owners to terminate a periodic tenancy without specifying a ground of termination.
However, the insertion of section 71(2)(b) means that a periodic tenancy agreement cannot be terminated under section 71 if the resident has held a right of occupancy within the residential park for a period of five years or more.
Parliament intended to protect those residents that have occupied a site at a Tourist Park for five years or longer and are subject to a periodic tenancy. As the Act stands now, these residents need to be in breach of a term of the agreement if the park owner intends to terminate, or alternatively enter into a fixed term agreement that is subject to an expiry date.
One minor change to section 116(1)(c) has broadened SACAT’s powers to make orders for payment.
Prior to the amendment, this section only allowed SACAT to make orders for a resident to make a payment required ‘under the Act or a residential park agreement or collateral agreement or for breach of this Act or a residential park agreement or collateral agreement’.
The amendments to section 116(1)(c) broadened SACAT’s powers about who can make an order for payment with no restriction to the type of payment.
The amendment is significant as it removes the references to the Act and the agreements and allows SACAT to make an order against a resident for payment of money that is outside the scope of the Act and outside the scope of any residential park agreement. It is unclear what parliament’s intention was behind this change, other than to broaden the powers of the Tribunal to order a person to make a payment.
One example of where this new power might apply is when a resident has damaged property at the park, is required by the park owner to remedy the damage, and has not done so. The park owner could remedy the damage themselves and then seek an order from SACAT to bind the resident to reimburse the park owner. SACAT is however only likely to make an order where no agreement can be made between the parties.
An additional function has been given to the Commissioner in the new section 134(da) that the Commissioner must maintain a register established under the new section 135. This register needs to include the name and address of each residential park in the state, as well as the name and contact details for each park owner.
There is also provision for the regulations to include additional information, however the regulations have not been amended. This information is required to be published online and made available to the public (section 135(3)).
As a park owner, there is an obligation to provide the Commissioner with all the details required to be entered in the register (section 135(2)).
In addition to this change, the Commissioner has also been given the right to publish information relating to any action taken by the Commissioner when enforcing the Act pursuant to the new section 134(2).
Take home message
Park owners who own or are custodians of a Tourist Park (especially those with occupants residing on a holding over basis pursuant to an expired agreement or those residents who are long term periodic tenants) need to ensure they understand the implications of these changes to the Act.