Part 4Mutual rights and obligations of park owners and residents

Part 4—Mutual rights and obligations of park owners and residents Division 1—Rents and other charges 18—Permissible consideration for residential park agreement (1) A person must not require or receive from a resident a payment, other than rent or a bond (or both), under a residential park agreement, or as a condition to entering into, renewing or extending a residential park agreement. (2) However, the park owner may lawfully require and receive a payment of a class the park owner is authorised to require under Division 10. (3) For the purposes of subsection (1), a reference to a payment includes a reference to any 1 or more of the following: (a) an entry or exit fee; (b) a management fee; (c) a fee for amenities (or the improvement of amenities) provided at the residential park (commonly known as a "communal contribution fee"); (d) any other prescribed fee, regardless of how the payment is described by the person purporting to require or receive the payment from the resident. Note— For example, an entry fee that is purportedly required by a person from a resident and is described as "deferred rent" is a payment that the person is not permitted to require or receive under this section. 19—Rent in advance (1) A person must not demand or require another person to pay more than 2 weeks’ rent under a residential park agreement before the end of the first 2 weeks of the period of occupancy under the agreement. (2) If rent has been paid under a residential park agreement, a person must not require a further payment of rent until the end of the last period for which rent has been paid. (3) A person must not require another person to give a post-dated cheque or other post-dated negotiable instrument in payment of rent under a residential park agreement. 20—Method of payment of rent A park owner must not require that rent payments under a residential park agreement be made to the park owner or the park owner's agent at the rented property unless some reasonable alternative method of payment that does not involve personal attendance at the rented property has been offered by the park owner but not accepted by the resident. 21—Variation of rent (1) The park owner may increase the rent payable under a residential park agreement by giving written notice to the resident specifying the date from which the increase takes effect. (2) However— (a) the right to increase the rent may be excluded or limited by the terms of the residential park agreement; and (b) if the residential park agreement is for a fixed term, the agreement is taken to exclude an increase in rent during the term unless the agreement specifically allows for an increase in rent; and (c) the date fixed for an increase of rent must be at least 12 months after the date of the agreement or, if there has been a previous increase of rent under this section, the last increase and, subject to subsection (3), at least 60 days after the notice is given. (3) If a rent control notice that has applied in respect of the rented property ceases to be in force, the park owner may, by notice given under this section within 60 days after the rent control notice ceases to be in force, increase the rent for the rented property from a date falling at least 14 days after the notice is given. (4) The rent payable under a residential park agreement may be reduced by mutual agreement between the park owner and the resident. (5) A reduction of rent may be made on a temporary basis so that the rent reverts to the level that would have been otherwise applicable at the end of a specified period. (6) If the rent payable under a residential park agreement is increased or reduced under this section, the terms of the agreement are varied accordingly. (7) This section does not affect the operation of a provision of a residential park agreement under which the rent payable under the agreement changes automatically on a basis set out in the agreement. (8) For the purposes of this section, a series of residential park agreements between the same parties and relating to the same site is to be treated as a single residential park agreement unless at least 12 months have elapsed since rent for the rented property was fixed or last increased. 22—Excessive rent (1) The Tribunal may, on application made by a resident within 30 days after receipt of a notice of rent increase, declare that the proposed increased rent is excessive. (2) In deciding whether the increased rent is excessive, the Tribunal must have regard to— (a) the general level of rents for comparable rented properties in the same or similar localities; and (b) the estimated capital value of the rented property at the date of the application; and (c) the outgoings for which the park owner is liable under the agreement; and (d) the estimated cost of services provided by the park owner and the resident under the agreement; and (e) the nature and value of furniture, equipment and other personal property provided by the park owner for the resident's use; and (f) the state of repair and general condition of the rented property; and (g) the amenity and standard of the common areas of the residential park; and (h) other relevant matters. (3) If the Tribunal finds, on an application under this section, that the increased rent is excessive, the Tribunal may, by order— (a) fix the rent payable for the rented property; and (b) fix a period (which cannot exceed 1 year) for which the order is to remain in force. (4) The Tribunal may, on application by the park owner, vary or revoke an order under this section if satisfied that it is just to do so. (5) If, while an order remains in force under this section, a park owner asks for or receives rent for the rented property to which the order relates exceeding the amount fixed by the order, the park owner is guilty of an offence. Expiation fee: $1 500. (6) In this section— rent includes a payment that the resident is required by the park owner to make under Division 10. 23—Park owner's duty to keep proper records of rent (1) A park owner under a residential park agreement must ensure that a proper record is kept of rent received under the agreement. Maximum penalty: $20 000. (2) A person must not— (a) make a false entry in a record of the rent received under a residential park agreement; or (b) falsify the record in any other way. 24—Duty to give receipt for rent (1) A person who receives rent under a residential park agreement must, within 48 hours after receiving the rent, give the person paying the rent a receipt stating— (a) the date on which the rent was received; and (b) the name of the person paying the rent; and (c) the amount paid; and (d) the period of occupancy to which the payment relates; and (e) the address of the rented property to which the payment relates. (2) However, if the resident pays the rent into an account kept by the park owner or the park owner's agent at an ADI, and the park owner, or the park owner's agent keeps a written record containing the information required by subsection (1), a receipt need not be given. 25—Accrual and apportionment of rent (1) The rent payable under a residential park agreement accrues from day to day. (2) If rent is paid in advance, and the residential park agreement ends before the end of the period for which rent has been paid, the park owner must refund the appropriate proportion of the amount paid to the resident or apply it towards other liabilities of the resident to the park owner. 26—Abolition of distress for rent A park owner is not entitled to distrain goods of a resident for non-payment of the rent payable under a residential park agreement. Division 2—Bonds 27—Bond (1) A person must not— (a) require more than 1 bond for the same residential park agreement; or (b) require the payment of a bond exceeding 4 weeks rent under the agreement. (2) The 4 weeks rent limit on the amount of the bond is calculated by reference to the rent, or if the rent varies, the lowest rent, payable during the first 6 months of the period of occupancy under the agreement (expressed as a weekly rent). 28—Receipt of bond and transmission to Commissioner (1) A person must, within 48 hours after receiving an amount paid by way of a bond, give the person who paid a receipt stating the date payment was received, the name of the person from whom the payment was received, the amount paid, and the address of the rented property to which the payment relates. (2) A person must, within 7 days after receiving an amount paid by way of a bond, pay the amount to the Commissioner and at the same time lodge with the Commissioner a notice in the form approved by the Commissioner. 29—Repayment of bond (1) An application may be made to the Commissioner for— (a) payment of the whole amount of the bond either to the park owner or the resident; or (b) payment of a specified amount of the bond to the park owner and the balance to the resident. (2) The application— (a) must be in a form approved by the Commissioner; and (b) may be made jointly by the park owner and the resident or by either the park owner or the resident. (3) If the application is undisputed, the Commissioner must pay out from the Fund the amount of the bond as specified in the application. (4) If an application is liable to be disputed, the Commissioner must give the respondent written notice of the application (in a form the Commissioner considers appropriate) and inform the respondent that, if the respondent wants to dispute the application, a written notice of dispute, in a form approved by the Commissioner, must be lodged with the Commissioner within 10 days after the date the notice is given to the respondent. (5) If the respondent does not give the Commissioner written notice of dispute, in a form approved by the Commissioner, within 10 days after the date the Commissioner's notice is given to the respondent, the Commissioner may pay out from the Fund the amount of the bond as proposed in the application. (5a) However, if the application is made by the park owner alone more than 12 months after the termination of the residential park agreement— (a) the Commissioner must refer the application to the Tribunal for determination; and (b) the Tribunal may authorise payment of the amount of the bond as proposed in the application if the Tribunal is satisfied, on the basis of information provided by the park owner, that the park owner is entitled to the payment. (6) If the Commissioner receives a written notice of dispute before the amount of the bond is paid out under subsection (5), the Commissioner must refer the dispute to the Tribunal for determination. (6a) Despite a preceding subsection, if— (a) the bond has been provided or paid on behalf of the resident by a third party prescribed by the regulations, or in circumstances prescribed by the regulations; and (b) the Commissioner is given notice of the third party's interest in accordance with the regulations, then— (c) the third party is entitled to make application to the Commissioner for the payment of the whole, or a specified part, of the bond; and (d) — (i) if the application is made with the consent of the park owner—the Commissioner must pay out the amount of the bond as specified in the application; or (ii) in any other case—the Commissioner must give the park owner and, if the resident is still in possession of the premises, the resident, written notice of the application (in a form the Commissioner considers appropriate) and— (A) if the Commissioner does not receive a written notice of dispute from the party or parties to whom the notice of the application was given within 10 days after the date on which the original notice is given—the Commissioner may pay out the amount of the bond as proposed in the application; or (B) in any other case—the Commissioner must refer the matter to the Tribunal for determination. (6b) If a payment is made under subsection (6a) and the resident is still in possession of the premises, the park owner may require the resident to provide a new bond in accordance with section 27. (6c) If— (a) the bond is provided on behalf of the resident by a third party prescribed by the regulations in circumstances prescribed by the regulations; and (b) the park owner makes application to the Commissioner for the payment of the whole, or a specified part, of the amount payable under the bond, then— (c) if the application is made with the consent of the third party—the Commissioner must pay out the amount as specified in the application; or (d) in any other case—the Commissioner must give the third party and, if the resident is still in possession of the premises, the resident, written notice of the application (in a form the Commissioner considers appropriate) and— (i) if the Commissioner does not receive a written notice of dispute from the party or parties to whom the notice of the application was given within 10 days after the date on which the original notice is given—the Commissioner may pay out the amount as proposed in the application; or (ii) in any other case—the Commissioner must refer the matter to the Tribunal for determination. (6d) If a payment is made under subsection (6c), the third party must reimburse the Fund to the extent of the payment. (7) For the purposes of this section— (a) an application is undisputed if it is a joint application by the park owner and the resident, or an application by the park owner that the whole of the amount of the bond be paid to the resident, or an application by the resident that the whole of the amount of the bond be paid to the park owner; (b) an application that does not fall into any of those categories is liable to be disputed; (c) if the application was made by the park owner, the resident is the respondent; (d) if the application was made by the resident, the park owner is the respondent. Division 3—Resident's entitlement to possession and quiet enjoyment 30—Vacant possession etc (1) It is a term of a residential park agreement that the resident is entitled to vacant possession of the rented property (except for a part of the rented property in respect of which a right of exclusive occupation is not given by the agreement) from the day the right of occupancy under the agreement begins. (2) It is a term of a residential park agreement that there is no legal impediment of which the park owner has, or ought to have knowledge, to the resident's occupation of the rented property as a place of residence for the period of operation of the agreement. 31—Quiet enjoyment (1) It is a term of a residential park agreement that— (a) the resident is entitled to quiet enjoyment of the rented property without interruption by the park owner or a person claiming under the park owner or with superior title to the park owner's title; and (b) the park owner must not cause or permit an interference with the reasonable peace, comfort or privacy of the resident in the resident's use of the rented property or with the reasonable use or enjoyment by the resident of common areas of the residential park; and (c) the park owner must take reasonable steps to prevent other residents of the residential park from causing or permitting interference with the reasonable peace, comfort or privacy of the resident in the resident's use of the rented property or with the reasonable use or enjoyment by the resident of common areas of the residential park. (2) If the park owner contravenes the term of the agreement arising under subsection (1) in circumstances that amount to harassment of the resident, the park owner is guilty of an offence. (3) The liability to be prosecuted for the offence is in addition to civil liability for breach of the agreement.