WEST AUSTRALIAN PARLIAMENT STANDING COMMITTEE INQUIRY INTO THE PROVISION, USE AND REULATION OF CARAVAN PARKS (AND CAMPING GROUNDS) IN WESTERN AUSTRALIA PHOA is not happy with the outcome of this Inquiry and plans to continue to pursue the matter of park home tenancies.
Following is the Chair's
Foreword in the final report of the Inquiry:
'Caravanning and camping have long been a central part of the Western Australian way of life. Whether it be family sojourns by the sea during school holidays; exploring the great Western Australian coast line and outback; or understanding the grand tour to the north and beyond
Our main concern in undertaking this Inquiry was that this way of life was under threat. That is, that caravan parks are disappearing and not being replaced, and that many of the remaining parks are being filled with long-stay residents with a consequent reduction in spaces for tourists.
These concerns proved to be valid, serious, and in need of urgent and concerted action.
There are also allied concerns regarding the eviction or potential eviction of long-stay residents as parks close or are under risk of closure, and the otherwise precarious situation of long-stay residents in many caravan parks.
While this is a pressing concern, particularly in the metropolitan area, and has been considered in this inquiry, it has not been thoroughly addressed in this Inquiry. The primary focus of the Inquiry has been the need to ensure adequate supply of space and facilities for caravan and camping for tourism. The issues of tenure and access to land and housing for long-stay residents of caravan parks need to be considered more thoroughly in the context of a wider review of planning and the availability of affordable housing. We urge the government to do so.
The subject of caravanning and camping proved to be very complex with great variation in circumstance by region, seasons, location, and approach of local governments and park providers. According solutions are necessarily complex and varied. Nonetheless, there are a number of central recommendations that apply across the board, including the need for Tourism Western Australia and the Department of Environment and Conservation to accord the provision of low cost caravan and camping services high priority together with the need to protect current parks from closure and identify additional land for caravan parks and camping grounds.
I would like to thank the
members of the Committee for their interest, effort and cooperation. This
has been a productive bi-partisan effort throughout.
I would also like to thank Dr Loraine Abernethie, Principal Research Officer, and Ms Vanessa Beckenham, Research Officer, for their professionalism, commitment and good cheer.
Of course, this report will be judged by the effectiveness with which the government responds, and I urge the Government of Western Australia to accord it due consideration with high priority.
Signed Dr M.D. Nahan MLA, Chair.'
The parliament web address for all details of the Inquiry is so long that it would probably be easier to Google: West Australia Standing Committee Inquiry Caravan Parks.
10 April 2009
EVICTION OF PARK HOME RESIDENTS
A number of parks in Western Australia have been, or will be, sold for residential development. This has had a huge impact on park home residents. These residents had responded to advertising that suggested they should sell their suburban houses and spend the rest of their days in their park home on that particular park. The advertising was aimed at people who had retired and were at least in their fifties. Many are now in their eighties and nineties.
Eviction notices have been served on shocked senior residents. There are no alternative sites available elsewhere for their houses. Generally, in these cases, the park operators had refused all along to give the residents fixed-term leases.
There was much hope that the new Residential Tenancies (Long-stay Residents) Act would help existing residents get a 'fair go'. Unfortunately it does not.
PHOA is currently lobbying the new government to look again at the Act and to work towards solving the problem.
LEGAL OPINION - (how the new Residential Parks (Long-stay Tenants) Act 2006 compares to the Residential Tenancies Act 1987)
1. Does eviction without
reason still apply?
Pursuant to sections 42(1) and (2) of the Residential Parks (Long-stay Tenants) Act 2006, the park operator may still terminate a tenancy without specifying a reason. This remains the case regardless of whether the tenancy is fixed term or periodic. This is similar to section 64 of the Residential Tenancies Act 1987 which also allowed for the termination of the tenancy without grounds. A written termination notice is still required to be given to the tenant, identifying the premises and specifying the date at which they are to be vacated.
The major difference between the two Acts lies in the required amount of notice that is to be given to the tenant. For a periodic site-only agreement, section 42(3)(b) of the Residential Parks (Long-stay Tenants) Act 2006, requires a minimum of 180 days’ notice be given which is increased from 60 days under section 64 of the old Act. For a periodic on-site home agreement, section 42(3)(a) of the Residential Parks (Long-stay Tenants) Act 2006, requires a minimum of 60 days’ notice be given which is increased from 30 days under the old Act.
For a fixed term agreement there remains no minimum notice period as such. The tenancy can only be terminated at the date at which the agreement ends. This is the date stated in the contract. Generally, there can be no eviction prior to this time unless it includes one of those reasons contained in sections 39-41 of the Act (for example, breach of the contract by the tenant through non-payment of rent).
2. Is there compensation
due to forced relocation?
Under the Residential Parks (Long-stay Tenants) Act 2006, if there has been eviction without reason and the correct amount of notice has been given, then there is no compensation payable by the park operator to the tenant if the agreement is periodic. However, if the agreement is fixed term then the tenant is entitled to compensation.
Under section 46(2) of the Residential Parks (Long-stay Tenants) Act 2006, the amount of compensation payable is that amount that is agreed upon by the tenant and the park operator. If they are unable to agree, then it is an amount determined by the State Administrative Tribunal on application. Under section 65, the Tribunal is given the power to determine the amount of compensation payable to the tenant. The Tribunal will evaluate each case on an individual basis. With a site-only fixed term agreement, they will have regard to factors such as
1. the cost of moving the
caravan/park home, including utilities;
2. the cost of towing/moving the home and possessions to another site (or up to 600km);
3. the cost of resiting and reconnection services;
4. the cost of establishing a new site (including out of pocket expenses ( such as landscaping)
With an on-site home agreement
they will only have regard to the cost of towing or otherwise moving the tenant's
possessions to another site up to 600km away.
Applications to the Tribunal for the determination for compensation can be brought immediately on the receiving of notice. It is therefore possible that compensation may be paid prior to vacation, thus allowing people who could otherwise not afford to relocate to do so.
In regards to the differences between the two Acts, the Residential Tenancies Act 1987 has made no specific allowance for compensation, nor how it is to be calculated. Under section 15, it directs all possible compensation disputes to a magistrate sitting on the small disputes division of the court.
3. What if there are no renewal options?
If there is no renewal option written into the agreement then at the expiration of the agreement, any liability in relation to relocation compensation would cease. The park owner would have legitimately not renewed the contract, as opposed to terminating the contract where compensation is payable. This is a common law concept not directly addressed in either the Residential Tenancies Act 1987 or the Residential Parks (Long-stay Tenants) Act 2006.
However, if there is a renewal option in the agreement that the park operator refuses to renew, then under section 62 of the Residential Parks (Long-stay Tenants) Act 2006, the tenant may apply to the Tribunal for relief.
If the agreement continues to operate beyond the day on which it was supposed to expire, then the terms of the contract will continue as before as if the agreement had not expired. This will not, however, create a new agreement.
PLEASE NOTE: PHOA recommends that you get legal advice before you sign a rental agreement. Relevant contact information is provided on the LINKS page of this site.
The Residential Parks (Long-stay Tenants) Act 2006 requires park operators to disclose, in writing, all information about their parks to long-stay residents, and to provide them with written agreements.
New or potential park home residents can now make decisions based on the information provided by the park operators.
However, many established
park home residents - prior to the introduction of the new Act - were given
little or no written information about their parks when they purchased their
homes. Their decisions were based on different understandings. They are not
in a good position to negotiate the terms of the new written agreements, as
they cannot take their business elsewhere if they do not agree to them.
A large number of park operators have offered their long (in many cases, very long) stay residents only written periodic agreements. These allow the operators to give 180 days notice of termination of residency, without having to give a reason. Many of the established residents are refusing to sign their new agreements because they do not add anything positive to their existing arrangements.
PHOA continues to meet with representatives of government and the industry to get a better deal for its members.