1. The Applicant is the owner of a mobile home which is located in the Respondent's mobile home park in the ACT. A dispute has arisen between the parties concerning rent increases. The Applicant has filed an application with the Tribunal purporting to invoke Part 5A Residential Tenancies Act 1997 (the Act) which relates to "occupancy agreements", as opposed to residential tenancies. The immediate issue for the Tribunal is one of jurisdiction, namely whether the agreement between the parties pursuant to which the Applicant placed his mobile home on a site in the mobile home park, is an occupancy agreement within the meaning of section 71C of the Act.

2. The Applicant was previously the manager of the park from its opening in 1988 on behalf of Southern Drive In P/L. His employment in this capacity came to an end when the park was purchased by the Respondent in 1999. The Applicant lived in the park on his present site during the whole of this time and continues to do so.

3. In April 1992 Southern Drive In P/L entered into contractual arrangements with the residents of the park, including the Applicant, to regulate the residents' right of occupation of sites in the park. A copy of the Applicant's agreement has been tendered in evidence before the Tribunal.

4. On its face the agreement purports to create a relationship of landlord and tenant in relation to the right to occupy the site in the park. The Applicant actually owns the mobile home and so the tenancy is restricted to the site, and the right to place the mobile home on the site.

5. The agreement describes the Applicant as the "tenant" and the Respondent's predecessor in title as the "landlord". The agreement regulates the Applicant's right to "sub-let" and refers to "sub-tenants".

6. Clause 2 of the agreement confers on the Applicant the substance of an exclusive right of occupancy:

"The landlord agrees that the owner tenant will have quiet enjoyment of the site without interruption by the landlord...."

7. The agreement tendered has no site number inserted in the appropriate place in the document. The Applicant gave evidence that he has always resided in the same site number since 1992 and submitted that it followed from this fact that the relevant site number was always a matter of agreement between him and the landlord.

8. The agreement specifies the rent which is payable by fortnightly instalments. The agreement specifies the commencement day of the right of occupancy.

9. The agreement does not specify any term or duration of the right of occupancy.

10. The agreement does specifically address the issue of the termination of the right of occupancy:

(a) clause 20.1 provides for the agreement to terminate if the Applicant sell his mobile home. This conduct is defined to constitute a repudiation of the agreement.

(b) clause 20.2 provides that any sub-letting or assignment shall constitute a repudiation of the agreement.

(c) a special condition at the end of the agreement provides for termination by either party on 28 days' notice, based on a breach of the agreement by either party.

(d) a second special condition regulates the right to terminate the agreement during the fixed term of the agreement. It reads:

If notice is given for some other reason and the tenancy is for a fixed term, notice may only be given after the fixed term has ended.

(e) a third special condition at the end of the agreement provides for termination without notice where the tenant abuses the premises, the landlord or other tenants, or in cases of undue hardship to the landlord.

11. The agreement does not specifically provide for any right to terminate the agreement other than those above, each of which requires some grounds or cause for the termination. There is no right reserved to the landlord to terminate on notice for "no cause". For that matter there is also no right reserved to the tenant to terminate at will.

12. It may be that the termination clause quoted at paragraph 10(d) above provides some basis for implying or inferring that the parties intended a right of "no cause" terminations. This inference might be drawn from the words "for some other reason", but this is by no means obvious given that:

(a) the agreement has gone to the detail of setting out the various grounds of termination without referring to any 'no cause" grounds ("expressio unius est exclusio alterius" Statutory Interpretation in Australia 5th ed Pearce and Geddes at [4.26])

(b) the third special condition permits the landlord to terminate without notice if the landlord is suffering undue hardship. It is not obvious why such a right would be necessary if the landlord could terminate at any time (outside the fixed term) by notice, without cause. It may be that this clause was intended only to apply in cases of fixed term agreements, albeit that the agreement itself makes no provision for fixed term agreements. It may also be that the benefit

of the clause was intended to do no more than relieve the landlord of the necessity for giving 28 days' notice in cases of breach per the first special condition; but the requirement for 28 days' notice only applies in terminations based on a breach and there is no breach necessarily implicit in the fact that the landlord is suffering undue hardship.

(c) clause 18 of the agreement states that the written agreement comprises the whole of the agreement and expressly excludes any "implied condition".

(d) in the course of evidence both parties agreed that it was the intention of the agreement not to permit "no cause" terminations of tenants, although there was no intention to prevent tenants leaving on notice. These concessions are important because the Applicant was responsible for the drafting of the agreement in his former employment; and the Respondent expressly concurs.

(e) the common law relating to the circumstances in which a condition can be implied into an agreement was recently reviewed by the High Court in Royal Botanical Gardens and Domain Trust -v- South Sydney C. C. 2002 HCA 5). It is not open to a court or tribunal to imply a term into an agreement which is inconsistent with an actual term of the agreement. This puts in issue the effect of clause 18. It is also not open to the Tribunal to imply a term into an agreement unless it is necessary to do so to give efficacy to the agreement or to reflect an agreed but inadvertently omitted term. Neither of these tests appears to be satisfied in the present case.

(f) the potential application of the "contra proferentem" rule which would see the terms of the agreement construed against the interest of the Respondent (Allianz Australia Workers Compensation NSW Ltd - v- PPG Industries P/L (2004) ACTCA 28; Residential Tenancies Law and Practice in NSW Anforth, Thawley and Christensen 2003 ed at [3.28.2].

13. The Applicant has sought to invoke the Tribunal's jurisdiction under Part 5A of the Act on the basis that the agreement is an "occupancy agreement" within the meaning of section 71C:

(1) An agreement is an **occupancy agreement if - **

(a) a person (the grantor) gives someone else (the occupant) a right to occupy stated premises; and

(b) the premises are for the occupant to use as a home (whether or not with other people); and

(d) the grantor may lawfully terminate the agreement, without cause, by giving less than 6 months' notice; and

(e) the agreement is not a residential tenancy agreement.

(b) in writing, oral, or partly in writing and partly oral.

14. Part 5A commenced on 8 March 2005.

15. In the course of the hearing the Tribunal noted that the agreement could not constitute a residential tenancy agreement within the meaning of the Act as section 6F expressly excludes from the definition of residential tenancy agreement any agreement for the right to occupy a site in a mobile home park.

16. The Tribunal observed to the parties that a "residential tenancy agreement" within the meaning of the Act was not co-extensive with the scope of a tenancy at common law (Anforth at [2.3.0]). Many of the categories of residential occupation excluded from the definition of a residential tenancy agreement in sections 6D-F could, and often are, tenancies at common law.

(a) an intention to enter a contractual agreement (Anforth [2.3.8])

(c) conferring on the tenant an exclusive right of occupancy (Anforth [2.3.0])

(d) having certainty about the fundamental terms relating to the identity of the parties, the premises, the period of the lease, the rent and the commencement date (Australian Tenancy Practice and Precedents Redfern and Cassidy at [170]

18. The Tribunal observed that there was no reason at law why a person could not be a tenant of a site in a mobile home park, a retirement village, a university residence or any of the other categories of occupation expressly excluded from the coverage of the Act in sections 6D-F. Once a tenancy at common law is established then a bundle of rights and obligations arise between the parties.

19. In the present case the Tribunal observed that the agreement of April 1992 between the parties appeared to constitute a tenancy agreement at common law. In particular it appeared to constitute a periodic tenancy from fortnight to fortnight by reason of the provision for rent to be paid fortnightly (Redfern and Cassidy at [155].

20. At common law such a tenancy is a continuous one and not a series of separate fortnightly leases. The tenancy continues until lawfully terminated (Redfern and Cassidy [1770, 1775]). In the case of a fortnightly periodic tenancy the lease can be terminated at common law on a fortnights notice (Redfern and Cassidy [1775]).

21. However, at common law the parties can specifically agree the terms upon which a periodic lease can be terminated. The common law right to terminated on a fortnight notice can be abrogated by the terms of the lease itself (Redfern and Cassidy [1775]).

22. In the present case it appears on first blush that the agreement is a period lease which abrogated the right to terminate without cause on a fortnights notice for the reasons given at paragraph 12 above.

23. This proposition was put to the parties by the Tribunal, who each agreed that the it was the intention of the agreement to confer security of tenure on residents and accordingly to prohibit "no cause" terminations.

24. The Tribunal then turned its mind to the proposition of whether the right to terminate for no cause was inherit in the nature of a periodic lease and could not be abrogated by the intention of the parties, notwithstanding paragraph 21 above. This appears to be a live issue in this present matter.

25. In order for the Tribunal to have jurisdiction in the present matter, the agreement must answer the description of an occupancy agreement as defined in section 71C(1). Each of the five criteria in that sub-section must be satisfied before an occupancy agreement comes into existence. There is no question that paras (a), (b), (c) and (e) are satisfied. The issue is whether para (d) is satisfied ie can the present agreement be terminated without cause with less than 6 months notice.

26. The answer to this question depends on whether a right to terminate without cause can be implied into the present agreement, either as a matter of fact (ie the parties actually intended this to the be case) or a as matter of law (because it is necessary to give efficacy to the agreement or because it is a non-excludable incident of a periodic lease).

8. The decision in Swannson v Australian National University t/as Graduate House[2] also considered the issue of a right to residency that could not be terminated within six months without cause and held that it therefore could not be an occupancy agreement.

1. The decision in Allen is distinguishable on two grounds. In Allen the applicant contended that the agreement between the parties was a residential tenancy agreement whereas the present application is based on the assertion that the license agreement is an occupancy agreement. In the present case there is no doubt that the owners can terminate the license agreement with less than six months' notice and so the basis for rejecting jurisdiction in the Allen and Swannson is not apposite in the present matter.
2. The owner in the present matter submitted that a site agreement in a caravan park upon which the resident place their own caravan or mobile premises does not satisfy the definitional requirement of section 71C(1)(b) in that it does not involve the licensing of a "premises ...for the occupant to use as a home." The site agreement is only for the bare land upon which a range of lawful structures could be placed including mere tents or nothing at all.
3. This construction of section 71C(1)(b) finds support in the definition of 'premises' in the Dictionary to the Residential Tenancies Act 1997 which provides:

(a) any habitable structure, whether it is fixed to the land or not; and

(c) any land, buildings or structures belonging to the premises.

1. The definition requires a habitable structure whether it is affixed to the land or not. Thus, a license of a site together with the site owners van on the site may qualify as an occupancy agreement, but this is distinguishable from licensing the site only. In paragraph (c) the reference to 'any land' is limited to land belonging to the premises.
2. The view that licenses for sites only in caravan parks was not intended be caught within the definition of an 'occupancy agreement' in section 71C is consistent with section 6F of the Act which excludes "a caravan or mobile home in a mobile home park" from the scope of a residential tenancy agreement. It does not follow automatically that exclusion from the definition of a residential tenancy agreement must connote an exclusion from the definition of an occupancy agreement, but it is indicative of a general legislative intent.
3. A further reason basis for excluding the present arrangement from the definition of an occupancy agreement is that the definition in section 71C is limited to premises licensed "for use as a home". In the present case the resident does not use the site as a home and has sub-licensed the caravan to another person who uses it as his home.
4. The Tribunal is satisfied that it was not the legislative intent to catch site agreements in caravan parks as occupancy agreements in Part 5A of the Act and that the definition of an occupancy agreement is consistent with that intent. Accordingly the Tribunal lacks jurisdiction in the present dispute.
5. The Tribunal notes that the same conclusion was reached by the NSW Court of Appeal in May v Ceedive Pty Ltd[3] and by the former NSW Consumer, Trader and Tenancy Tribunal in White Albatross Holidays Park Pty Ltd v Pearce[4] and Hearn v Lake Illawarra Park Pty Ltd[5], on similarly worded provision in the Residential Tenancies Act 2010 (NSW).
6. Other jurisdictions have addressed this issue by enacting legislation which does regulate caravan parks, both long stay and short stay, but the ACT does not any such legislation. In both Allen and Swannson attention was drawn to the hiatus that exists in the Residential Tenancy Act 1997 in respect of different categories of residential leases/licenses at common law that are not regulated by the Act.

South Canberra Holdings Pty Ltd trading as Southside Village

[1] [2006] ACTRTT 2

[2] [2006] ACTRTT 5

[3] [2006] NSWCA 369

[4] [2012] NSWCTTT 344

[5] [2013] NSWCTTT 206