Residential Land Lease Communities following a disaster

2:48AM Mar 31, 2022

Speakers:

Bridget Barker

Paul (TU)

Keywords:

homeowners

operator

home

site

community

tribunal

flood

communities

residents

northern rivers

paul

damage

residential

episode

services

tenants

impacted

disaster recovery centers

new south wales

works

Hello everyone. My name is Bridget Barker and I work for the Community Legal Education branch of Legal Aid New South Wales. I live in Lismore on the far north coast of New South Wales, and on the 28th of February 2022, our town experienced a flood with water levels that exceeded any other previously recorded flood by at least two meters. In the days following the flooding Lismore, many other communities across the Northern Rivers region experienced similar flooding. The flood has wreaked an incredible level of devastation across our region, and has made many people homeless.

We are also aware that other communities across New South Wales have also experienced similar devastation. We are releasing this extra episode of Renting Matters to share information with people living in Residential Land Lease Communities about their rights and responsibilities following a disaster such as this flood. I'm joined today by Paul from the Tenants' Union of New South Wales. Paul is a solicitor working with the Tenants' Union in their residential land lease communities service. I would like to begin by acknowledging that this episode is being recorded on the lands of the Widjabul Wia-bal people of the Bundjalung Nation and on the lands of the people of the Eora nation and to pay my respects to Elder's past and present.

Before we begin the episode, I'd just like to let people know that we have issued another episode on tenants rights and responsibilities following a disaster. And you can find that episode on Legal Aid's podcasting channel or on your favorite podcasting app or channel. I'd also like to let people know that there are disaster recovery centres which have been established in the region and these are places where people can receive advice and also where they can get assistance from a variety of services such as charities including St. Vincent DePaul, and the Red Cross, agencies such as the Office of Fair Trading, Legal Aid New South Wales, Northern Rivers Community Legal Centre, Resilience South Wales and Services Australia to name a few. In the region, disaster recovery centers have been opened in Lismore, Ballina, Casino, Kyogle, Mullumbimby, Murwillumbah, Evans Head, Grafton and Maclean.

So let's begin. I'd like to welcome Paul from the Tenants' Union to the podcast again. Thank you, Paul, for joining me at such short notice to help me get some information out to people living in residential land lease communities following the flooding in the Northern Rivers region and also elsewhere in New South Wales. Paul, you just mentioned to me that you're aware of a number of Residential Land Lease Communities that were badly affected by the floods in the region. How many did you say were impacted?

Yes, hi, Bridget. From our intel there were about eight that were really severely impacted where a lot of homes went underwater. For example, at Tweed River Hacienda in Chinderah, we've been told that about 80% of the homeowners there were underwater in the adjoining community operated by (inaudible). That's the homestead. There were about half a dozen homes there that went underwater as well. And there were homes affected also at Tweed Shores and Chinderah Lakes. So the operator there is Lincoln place. One of the other communities that's always been flood-impacted and has been severely impacted as well is a community that's now operated by Ingenia and that's the landless community at Drifters. There's been extensive damage to homes in that community.

And I understand from solicitors in Legal Aid working at the disaster recovery centers that I think Ballina landless community in Ballina might also have experienced flooding as well.

Yeah, Ballina waterfront village and Tourist Park. A lot of the homes there were badly impacted. Some have actually moved from their peers - and a lot have been extensively damaged the carpets, white goods, literally everything was totaled. Some of the homeowners - their cars got destroyed as well in the floods. So a lot left literally with just the clothes on their back when they got an SES message to evacuate. They literally were given 20 minutes to evacuate by the SES.

So what I thought we could do this afternoon is work through some of the issues that are being raised with the Tenants' Union and also with the services that are assisting flood-effected people in the region. The first issue I thought we could talk through is the issue of access if people have been evacuated to safety once the floodwaters recede, and it is safe for them to do so can they return to their homes?

Well, certainly homeowners, residents can return obviously to inspect their homes. But I think it's really advisable that they do one of a number of things. First of all, would be to check any communication they've got from their operator about whether their sewage has been reconnected, whether they've got their water and other utilities, whether the electricity is reconnected, and whether it's safe to actually go back into the homes. I've heard of some operators actually contributing towards the cost of electrical contractors actually checking the power supply into homes to make sure that it's safe. But a lot of that it's really been at the expense for homeowners themselves to check. We've heard stories of homeowners who've been insured, or they've had the full insurance, but many others who have had no insurance. So there may be the need to contact your insurer, get an assessor around and find out the extent of the damage. So if it's safe, obviously, and if a cleanup has been commenced or is underway, then in those situations, it may be safe for residents to return. But obviously, there'll be side issues like the growth of mould and other impacts. So depending on the works that can be done and make homes safe, habitable and livable again, then surely, residents should be able to return to their homes.

Thank you. Another question that's arisen is the question of site fees once residents have had to be evacuated, do they have any right or ability to seek an abatement of site fees for the time that they're unable to live in their homes within a residential landless community?

Absolutely. So if a homeowner's residential site has become what the Land Lease Communities Act describes as wholly uninhabitable, then the site fees that a homeowner pays to their operator or community owner should abate accordingly until the site becomes what the act says: wholly habitable. So the site fees should either abate in full so that means either they're suspended or they're terminated, or they should be reduced for whatever time period.

I've heard in some communities where and the operators have given a straightforward four week site fee abatement for all homeowners. And then they're working on a week to week basis until homeowners have been slowly able to either go back into their homes, or been able to get whatever works or repairs actually carried out. But I've heard also other operators who have been insisting that homeowners continue to pay their site fees when their sites are wholly uninhabitable. So they shouldn't be paying while they can't live in their homes. They shouldn't be paying any site fees to their operators. So it may be necessary, whatever means to communicate that to the operator. So if your site's wholly uninhabitable, you're entitled no ifs, no buts to a reduction or a complete abatement of your site fees for the time period that your home and site are uninhabitable. So our recommendation would be either to negotiate with your operator, preferably in writing. However, if you can't reach an agreement with the operator, and you've been out for a period of time, keep receipts for wherever else you've had to stay. if it's been in a motel or another community or another holiday park, and you are entitled then to make an application to the Civil and Administrative Tribunal to NCAT in relation to all site fees.

Thank you, Paul. So on the question of habitability, I understand that some operators have been terminating site agreements, and in some cases refusing access to residents. It appears that the termination of agreements is happening because the operator deems the site uninhabitable. If residents wish to repair their homes and live there again or make them habitable, what can they do if they receive a notice of termination of their site agreement.

So if they receive that 30 day notice from their operator, they can challenge that and tribunal. So it may be the case that if a home has been totaled, and if a homeowner is insured, they may want to replace that home with another home on site. So a lot of their site agreements will say not to replace your home with another home on site. But an operator must not unreasonably withhold or refuse consent to a request by a homeowner to replace their damaged home with another home on site. And we're hearing anecdotally of homes owned by one large operator in particular where a lot of homes have been damaged beyond repair, where the operator has said that they're going to pull down the remains of those homes, remove them from the community, the operator would bring in their own homes. And he said well, because you're uninsured. we'll be just bringing in a new home and then we'll offer to sell it back to you and we'll give you first options. Well these are homes they've indicated are going to be selling for an excess of $200,000. So that's going to be beyond the means of money homeowners unless they're already fully insured. So operators shouldn't be pursuing or getting access to site without giving a termination notice and giving reasons because there are protections for homeowners under termination under Part 11 of the Land Lease Communities Act. So while a site agreement is still enforced and can only be terminated either by mutual agreement or by order of the tribunal. Homeowners can seek to replace their home with a new home on site but obviously with a request to the operator, but the operator mustn't unreasonably withhold or refuse consent to any request made by a homeowner or in that regard.

Thank you, Paul. Repairs is another issue that arises within these communities. Understandably, the common areas, including access roads and other common facilities would have been damaged in these floods, what can residents do about getting necessary repairs done to the common areas after a flood?

So not only just with the common areas, but if the residential site itself so if the land or the hardscape has been damaged or impacted by the flooding event, or if there are cracks in the concrete or in the soil. Having that investigated and/or repaired, we say that the operator is responsible for ensuring that that's done. They also have the responsibility for upkeep and for ongoing maintenance of the common areas of the community. So roads and other infrastructure within the community is the operators responsibility. But any specific damage that's done to a home itself, the homeowner is responsible to repair any damage that's done to their home, but they don't need to get the consent of the operator to repair any of that damage. But if they do want to make significant external changes in the home, they would need to get their community operators consent for that. So you might need to check with the requirements of the local council as well in relation to any changes to either the home or other structures on site in advance of either bringing in a new home in terms of getting the operator's consent, but also making sure that the home will comply with the current local government regulations of 2021.

So Paul, would the operator's responsibility also extend to any retaining walls that have been damaged during a flood?

Well, we said that that forms part of the land part of the infrastructure that's owned by the operator, and they should be wholly responsible for that. there is a slight anomaly in relation to the wording of the act of that we're hopeful that will be dealt with in the amendments to be made to the Land Lease Communities Act later this year, like a relocatable home, if you theoretically relocate your home to another residential site elsewhere or relocate within the same community. You don't bring the retaining walls, you don't bring the concrete slab or the piers, you don't bring the concrete driveway with you. So we said that's part of operator owned infrastructure, and should be the operators responsibility to repair our maintain if it's damaged.

And, Paul, if the operator is for whatever reason, failing to do that or not doing it within a reasonable time frame. Can residents take that issue to the New South Wales Civil and Administrative Tribunal

Residents can bring those matters to the tribunal. However, as I said earlier, there is that slight anomaly in terms of the old protections.

Presently, there is that issue about Section 37 says that an operator has to ensure the residential sites in reasonable condition and fit for habitation at the commencement of the site agreement for the site. So the former Act did have that ongoing obligation. But because of that anomaly that's in Section 37 of the Act, there is not certainty in terms of any application that could be made to the tribunal. But we're of the firm view that homeowners can make that case and can make that argument. they have done so successfully for under the former tribunal. So where we say something is formed part of the site or is operator owned infrastructure be at retaining wall, or any other hardscape, that is the operators responsibly, the homeowners should solely be responsible for the home that's on site and any damage to the home. But then, if the homeowners are either negligent or cause any damage to the site themselves, then clearly they will be responsible for that. But if it's through flood or storm impact that has damaged to say retaining walls or any other hardscape or say if there's potential subsidence or cracking in the soil, as has been reported to us by some homeowners, that would be operator responsibilities to repair that not homeowners and I know one homeowner who did contact us who is insured and does have cracking to driveway and path on their side and also to this cracking that's visible after the water has receded on the soil that's on their side. So we say that should be the operators responsibility to repair and ensure that that damage is fixed, but it may also be necessary for homeowners to consider getting other structural engineers to look at their homes or a geotech survey to be done where they think that's warranted.

It sounds quite complex, doesn't it?

Yeah, it is

Utilities is another issue that's going to arise and I think is arising post disaster events such as this flood, they would understandably have been disconnected for safety in terms of reconnection of electricity and gas, and possibly checking of plumbing and drainage. What can residents do if the operator is delaying or fails to reconnect the utilities within the park once it's possible to do so?

Well, that probably goes to habitability as well. One of the operator responsibilities under the Land Lease Communities Act is to ensure to the extent that it's within the control of the operator the continuity of the supply of utilities, to residential sites occupied by homeowners and to ensure that sites are habitable and in reasonable condition, or that they're fit for habitation. So there's a provision as well about their obligations to maintain communities, common areas and infrastructure as well. And if there's a failure to carry out work, or to carry out repairs, the homeowners can make application to the tribunal on that basis. But it really depends on I suppose the extent of the damage and what works have been done. We know of some communities where operators are contributing towards the cost of getting electrical or other contractors in also to check when they're getting their own works done, and also contributing to what homeowners have to spend in terms of getting their own services back up and running in their homes.

Paul, there all the issues that I've been made aware of. are you aware of any other issues that residents have raised following the flood?

Some homeowners have talked about issues with with mould growth, and about getting things like that addressed as well. One case, I think is rather appalling where an operator has purchased a home for as little as what remains of a home for as little as $5,000 from the homeowners, and they're intending to bring in a new home. So I think what homeowners need to be aware of is that their site agreements are valuable rights. And just because their home is either damaged, that they shouldn't be coerced into agreeing to things without getting some independent advice about what they should do or what next steps they should take. So a lot of homeowners, particularly in those seven or eight communities that I'm aware of, they've been getting assistance at the recovery centers, or they're staying elsewhere or staying temporarily. And I know that the tweed residential park homeowners association have been operating their own recovery center for about those seven or eight communities out of the community hall at Chinderah, but they're going to relocate to the site of the old Cudgen Leagues Club, and they're going to have some services operating from there to assist those homeowners in the Chinderah communities that have been badly affected.

Oh, that's really great to hear. So there's just a couple of things I think we should mention before we finish, are there particular time limits that residents should be aware of for making any of these applications to the Civil and Administrative Tribunal?

The default time limit is usually 28 days. But given the circumstances, it will be appropriate, I think, for the Tribunal to provide extension of time for applicants to bring their applications to the tribunal in terms of time limits. So if say, for example, a homeowner either doesn't want to or is not going to be able to return to their community like we've heard, but there may be entitlement to compensation if the operator issues the termination notice. So what we're saying is just wait to see what response because there's little dribs and drabs of homeowners going back into investigate and to see what's happening as the water has receded in their community.

So if a homeowner wants to terminate has no intention of going back to the community, they must give at least 30 days notice of termination of their site agreement. So that's termination by homeowner, but there may be entitlements to compensation. So the operator generally is not liable to compensate a homeowner for loss suffered by a homeowner as a result of natural disaster. However, if the operator then issues a termination notice under the provisions of the landless Communities Act, the homeowner would then need to look closely at the reason given for termination. But we're aware of situations where one operator in particular is trying to get access or to get sides from homeowners who are in really disadvantaged situation at the moment. And then it's saying we're bringing in new homes and then we give you a first option on purchasing that. So those homeowners do have the valuable right of that site agreements. So it gives them some bargaining power, but they may also be able to look around it to see what homes they might be able to bring in. But an operator shouldn't unreasonably withhold or refuse consent to a request made by a homeowner to bring a new home onto their site provided it complies with the local government regulation that's enforced at the moment. So it's about communicating with the operator, see if you can negotiate see what response comes back from the operator. But as I said, there could be entitlements to compensation as well depending on the reason given for the issuing of a termination notice if an operator does issue a termination notice to a homeowner

Oh, that's really important information to get out to people. you've made and the importance of getting advice. And I'll just let people know that disaster recovery centers have been opened across the Northern Rivers region. And Paul, you also mentioned the residential landlords communities specific disaster recovery center that's opening in Chinderah Is that right?

Yeah, at the site of the old Cudgen Leagues Club, so that's supposed to be opening soon. But what I might make a plug for as well as for those who either are insured or having difficulties dealing with their insurer, our colleagues at the financial rights Community Legal Center, so as a nationwide service, they've got a specific flood insurance guide on their website, and factsheet that may be useful for Land Lease community homeowners to access. So that's an additional service that might be used for homeowners to access.

Yeah, that's great. And of course, the tenants union have their advice line for residential landlords communities as well. I'll provide links to those guides and to the tenants union factsheets in the show notes for this episode, as well. Is there anything else that you wanted to add Paul?

No, that's probably kind of a fast and furious run through. so much of what's happening, it just feels feels like it's been Bedlam for the past two and a bit weeks. So hopefully that will be of some use and assistance for homeowners and residents.

Thanks so much for making the time to record this episode at such short notice. It's really important that we get this information out and I appreciate you finding the time,

No problem at all. Bridget, thank you.

That's all for this episode of renting matters. Please have a look at the show notes for this episode for links to useful Fact Sheets and other information to help you. There are other episodes of renting matters already issued, and we will continue to issue episodes, including an upcoming episode on social housing and an episode on tenants facing additional barriers. So look out for those. I'd also like to extend a special thanks to the staff who assisted me at very short notice to release these episodes. Brendan Ross from the Northern Rivers, tenants advice and Advocacy Service, Grant Arbuthnot from the Tenants' Union and Paul Smyth from the tenants union as well.