Renting Matters: Episode 5: When you own the house but not the land

10:36PM Jan 19, 2022

Speakers:

Bridget Barker

Julie (TU)

Paul (TU)

Kim

Keywords:

community

site

operator

people

communities

agreement

homeowners

home

tribunal

fees

residents

occupation

live

land

residential

pay

buy

act

lease

groves

Hello everyone. This is Law for Community Workers on the Go, a podcast for community and health workers. My name is Bridget Barker. I work in the community legal education branch at Legal Aid New South Wales. I would like to begin by acknowledging that this recording was made on the country of the Widjabul Wyabul people of the Bundjalung Nation and on the country of the Gadigal people of the Eora Nation. I acknowledge the traditional custodians of the land and pay my respects to Elders past, present and emerging. I acknowledge that this is Aboriginal land. Always was. Always will be.

In this episode, episode five of our series, Renting Matters,wWe talk about living in a residential land lease community in New South Wales. We speak with Paul and Julie from the Tenants' Union about the problems that they help people with who are living in a residential land lease community, and they explain the particular laws and rules that apply. If you live in one of those communities.

"The rules in a community can impact what it's like to live in that community. And when you're considering moving into a community. That's one of the things you absolutely should have a look at. Have a look at the community rules and see whether there's anything in there that you think might make it not such a great place for you to live because they can have a big impact on your life".

Paul and Julie talk about the importance of carrying out pre contractual inquiries if you're thinking of buying into a residential land lease community.

It's vital to carry out all those pre contractual inquiries, maybe go in, try and meet somebody in the community beforehand, speak to the vendor. Your vendor is often using real estate agents to carry out the sale. But I think it's important to go in to look around to speak preferably to some of the other homeowners or to someone from the residents committee and to carry out your full inquiries beforehand and do your research and obtain some independent legal advice.

We also speak with Kim who lives in a residential land lease community. Kim is on the residents committee of her community and she speaks about how important it is to network and how having a residence committee has helped people become braver about asserting their rights.

One of the things that I would say that's changed is that some of those much older people have become a little more tenacious, a little braver, because most people didn't know about the act. Most people don't know about the legislation. The people were quite fearful because historically there has been retaliation for people that speak up. And that's why it's important that the people that are doing your speaking up or networking are supported and help each other.

Hi Julie and Paul, welcome to the renting matters podcast series. Would you both tell us a little bit about the work that you do at the tenants union?

Hi Bridget, I'm a solicitor. Been at the tenants union for just around 11 years. I provide legal advice and occasionally legal opinions to land lease community homeowners and also to tenant services. And I conduct strategic litigation in a range of courts and tribunals. And I assist in policy and law reform work at the tenants union. And I assist in the training of tenant advocates from the tenants advice and advocacy services. I also attend the land lease communities forum that's convened by my colleague Julie at the tenants union. I also help out with the land lease communities legal working group that is run by the tenants union as well. So that's mostly what I do.

And how about you, Julie,

I am not a solicitor. I'm an advocate. So I do some legal advice in the same way that Paul does by providing backup advice to tenant advocates, also to resident representatives back who may be part of a residence group or from a residence committee. And then I have a broader role of looking after published information that we publish on land lease communities, I take the lead role in our newsletters and magazines and things like that, that we publish. We have a print publication called Outasite that comes out once a year and then we do a newsletter called Outasite Lite. And like Paul, I also do law reform and policy work. I convene and take the main lead for the residential landless communities forum and the residential on these communities working group where we live, as Paul said, with tenant advocates and resident representatives about issues around landless communities and also the legal situation and we try and do some joint policy and law reform work with those people and I also have a bit of a community development role in that I try and support the residents groups and residents committees around their assistance to residents of their communities so we will deliver training for them go out and do community education on occasion of the communities and things like that.

So in New South Wales, roughly how many residential land lease communities are there,

There's just over 500 that are actually registered. New South Wales Fair Trading holds a register of communities and operators are required to register. And I think at last count, it was up around just over 500.

So I guess the first thing that I should ask you for the benefit of our listeners is what is a residential land lease community.

It really encompasses everything from your old restyle traditional caravan parks that have permanent residents through residential parks manufactured home estates. So it's really that mix of the predominantly coastal land lease communities and a community can be a caravan park, or it can be a manufactured home estate as it's defined under the Local Government Act of 1993. And you just need one permanent resident to reside there for it to fit the definition of a residential landless community.

You've mentioned caravans and movable homes. Is there a specific definition of homes in a residential landlords community?

Well, they're supposed to be relocatable. That's the nature of the communities. So if you're going to live in a land lease community, essentially you're renting a residential site on which to place a home. And that was traditionally how it operated. Caravan parks would rent out sites, people could purchase a home from a manufacturer, have that installed on the site and then live there. It's pretty rare these days for anyone to rent out a vacant site. And for someone to have the ability to install a home there. These days it's mainly done by the operators of the communities, they'll put the homes on site, and then they'll sell them in situ. So yes, the homes are meant to be movable or relocatable. On occasion, you will come across homes and communities that just by looking at and you can tell there's no way that they can be relocated, but that's essentially what the definition is. It's meant to be relocatable home or removable dwelling.

Okay. And what about the people that live in a residential landless community? Is there any characteristics that are common to people who might choose to live in one of those communities

in recent years, we've seen a lot of downsizers. So those selling their homes in larger towns and cities and then moving in to live in landlease communities. So the demographic is usually those who are over 55, or possibly over 50 years of age but we do find that there are a lot of mixed use communities throughout New South Wales where homeowners or residents don't quite fit that age demographic, but there are a lot of communities which are exclusively targeted towards the over 50s or over 55s.

When we're talking about residents - residents is the generic term. Essentially, when you're talking about people living in communities, there are people that rent as well. So generally, if you own the home and rent the site, the legislation - the Residential Land Lease Communities Act talks about homeowner. If you rent your home and the site, then you're a tenant or a resident and your main rights and responsibilities come under the Residential Tenancies Act, but you also have some rights and responsibilities under the Land Lease Communities Act as well. So there are two types of residents. There's the homeowners and tenants homeowners are by far the biggest cohort, I think there's around 32,000, whereas tenants there's around 3000 in New South Wales,

so the mix of residents in a particular community will be subject to different rules depending on whether they're a homeowner or a tenant.

Yes. And you can also throw a casual occupant into that mix, because some communities have a whole mix of everybody's

essentially, if you're a homeowner, you should have a side agreement or a residential site agreement. If you're a tenant who's there as a person who's subletting from a homeowner, you'd get a tenancy agreement, and the homeowner would be your landlord. So you get a tenancy agreement under the Tenancies Act of 2010. And you could also be a tenant of the operator or owner of the community if they own a home and they rent it out to attendance. As Julie said, there are also that category of persons who might have a principal place of residence elsewhere and have an occupation agreement under the holiday parks act and have a home on site within the community. But that would usually be a short term designated site.

So you have a whole mix of different laws and regulations applying to people potentially living in the one community. In terms of a site agreement, what rights does a site agreement give you?

It's a right of occupation for value, it's a more enhanced right, with some very valuable rights contained within that and added protections because it gives you coverage under the residential land lease Communities Act of 2013. So it gives you very specific and very enhanced rights and protections in relation to the arrangements for site fees, for getting pre contractual disclosure for compensation to be payable, if you lose the right of residency under specific circumstances, there are rights to assign and to sublet your home. under that agreement with the prior consent of the operator, you also have the right to sell your home on site as one of the specific provisions under the act. So there's a range of both obligations under the Act, but also enhanced rights because in effect, you're a homeowner who's living there, you own your home on site, but you effectively lease the land from the operator for the duration of while you're there in the community. And while your site agreement is valid and enforced.

And just to add to that one of the key protections of a site agreement, which is different to a tenancy agreement is around security of tenure. So you don't have absolute security of tenure, because you don't own the land. But your site agreement can only be terminated in some very specific circumstances. Whereas if you're a tenant in a land lease community, you can be subject to obviously no grounds termination notice. So there's no such thing as no grounds termination notice for a residential site agreement, so it's just that little bit added security of tenure.

And you've mentioned occupation agreements under the holiday parks act. Paul, I understand you've been involved in some cases, that might be a good way to explain for our audience the different situations that can arise for people that buy into a residential landlords community.

Yeah, if you're buying a home from the vendor of a home, it could be from the operator who's actually selling the home, or an existing homeowner who's selling the home. So there's important pre contractual negotiations you can have. But if you're intending to live permanently on a site, in a land lease community, you should have a site agreement under the Land Lease Communities Act. Occupation agreements are intended for those persons who are going to use the home for limited short stay durations. And they effectively have a principal place of residence elsewhere. So they've got a home elsewhere, and they keep a home in a land lease community for a holiday or other purposes. And they're restricted to residing there for 180 days per annum. Some agreements can have further restriction by way of an additional term limiting occupancy, there are two periods no greater than 28 nights consecutively. It's important to look at the fine print and to look at the documents you're given, and when you complete an application form to live in a land lease community, to see exactly what's on offer or what your rights may be.

in terms of the cases that the tenants unions had. That's arisen, essentially, where there may be a written occupation agreement. But there's been an oral agreement on top of that, that the person can live in the community on a permanent basis, but they've never been given a written site agreement. And then when a dispute arises down the track, and it might not be about the agreement, it might be about something else in the community. But if you're on a occupation agreement, and you do enter a dispute, then obviously it's easy for the operator to terminate an occupation agreement, you've got very limited protections under that agreement. And so the tenants union has been involved in cases where someone has had an occupation agreement, but they ought to have had a site agreement. That's what they were really entitled to because their living arrangement was one of being a homeowner residing at the premises without a principal place of residence elsewhere. And so what you have to do in that situation is make an application to the tribunal and ask the Tribunal to make a declaration that is actually a sign agreement and that requires the Tribunal to consider the holiday parks Act and the residential families Communities Act and make a determination about which one actually does apply.

So in one of those cases I assisted David Dodge, who lives at Hacienda Holiday Park and David and his wife saw the home advertised for sale in mid to late 2009, made some inquiries made an application for occupancy of a site, completed that form with the operator, said we're intending to sell our home, which is in Queensland, and we'll be moving in five or six months time. They paid the deposit, they completed the forms. And then they moved in in March of 2010. They were shown an occupation agreement by the Park Manager at the office and thought this is not like the agreement that the people we've bought the home from, because it had the word site agreement. And so it was good that they had made those inquiries and they had looked at what they should have. And they didn't sign it. And they asked to speak with the owner of the land lease community. That meeting never eventuated and they just continued living there. They were involved in some tribunal proceedings in relation to increases of site fees. But in the meantime, Mr. Dodge had put in a complaint with New South Wales Fair Trading about not having the proper type of agreement and the operator responded and said Mr. Dodge lives here pursuant to long term care As your occupation agreement for heat, in fact, never actually signed any occupation agreement. So he continued living there for a number of years was involved in other proceedings. And then by about mid to late 2017, we assisted them with an application before the Civil Administrative Tribunal to get a written site agreement in standard form under one of the provisions of the landless Communities Act Section 26. So we were successful at first instance, and got orders that Mr. Dodd should have a written such agreement. Those orders are made by the tribunal, but the operator appealed that decision to the internal appeal panel of the tribunal during the following year, they were unsuccessful. And then they further appealed that decision to the Supreme Court, where they were also unsuccessful orders are made that they provide the written site agreement, but they delayed, we ultimately had to make a miscellaneous application to the tribunal for referral to the Supreme Court that they Hacienda operator has shown contempt for the tribunal orders in not fully complying with those orders to provide a written site agreement. So it shows what difficulties can arise. And as Julie said, it's often a situation of where somebody can move in sign an agreement and not be under the wiser as to the legal status that they've got, until such time as a dispute they arise or they may find themselves either in the tribunal or otherwise the matter of jurisdiction can be raised.

So there's clearly different rights that are given to people if they have a site agreement under the residential land lease Communities Act as opposed to an occupation agreement under the holiday parks act. Why do you think it was so important to the operator to fight Mr. Dodge and his wife, when they were seeking to have a site agreement?

there's kind of two parts of that one of the reasons for the operator doing that is they have an approval to operate, which issues to them under section 68 of the 1993 Local Government Act in which they're limited to the number of short term or long term sites that they're permitted to have. And this operator brought in new homes, which were called the Marina villas, and had sold those. And essentially, we see across the board in a lot of these mixed use communities that operators, if they can get away with signing somebody up to a casual occupation agreement, it makes it easy for them to evict or to get rid of a homeowner, because there's very little protection, which is afforded to anyone under the holiday parks act of 2002. So it's much easier for an operator to terminate that agreement, often without scrutiny of the Civil and Administrative Tribunal. So that was one of the reasons why it would make it easier for the operator. Well, if the homeowner challenge said, well, that's an excessive site fee increase that I've been given, the operator could just play the jurisdiction card and say, you're not covered by the land lease Communities Act, you've got a long term casual occupation agreement under the holiday parks act, and then say it doesn't apply, you can't lawfully challenge this. In Mr. dodges case, he had shown good instincts by refusing to sign an occupation agreement and questioning the type of agreement he was given and looking at some of the provisions which restricted the days he could reside there and some other terms about sale of the home on site. So it can often be reasons for other site designation why an operator will choose to issue an occupation agreement or to cover the tracks in terms of where they want to be able to make it easier to evict or to remove homeowners from the community because there's less protection and less rights under the holiday parks act

Paul, does the approval to operate specify which sites are permanent sites and which sites might be sites where there's a casual occupation agreement?

It won't refer to the nature of the agreement that applies to a site but the approval to operate they do specify which sites by site number are long term sites, and which are short term sites. So the long term sites can be used by homeowners to live there on a permanent basis. The approval to operate should also be accompanied by a community map showing all of the sites within the community that are two scale, but the compliance across the board - there's a real divergence between all of the local government areas in terms of how strictly that's enforced by local councils and how often inspections are carried out. And we sometimes see landlease communities that have operated for many years without the requisite Local Government Act approval to operate having been obtained

in terms of these different types of agreements and the different rights that people have under them. Have you ever struck a situation where operators and residents deliberately enter into one type of agreement but have an oral agreement that the person can live there on different terms?

I think that was the situation with a matter that we dealt with down in the south of the state. We were contacted by a Mr. Groves and he was in a similar situation to that. He said that he went to look at the community in 2013 and spoke with the operators about caravan and annex that was for sale and the operators were actually the ones selling that and Mr. Groves indicated that he was on only interested in purchasing that home if he could live there permanently. And they said, Yeah, that would be possible, but you'd have to sign an occupation agreement. He didn't really understand what that was. But anyway, they approved him as a resident, they sold him the home, and he signed an occupation agreement, but he lived there from day one. And I think around 2018 2019, he started having a couple of disputes with the operators, and that's when they sought to terminate his casual occupation agreement under the holiday parks act. And this is a matter where we assisted Mr. Groves to apply to the tribunal for a declaration that he had a site agreement rather than occupation agreement. And as with Mr. Dodge, they operated the audit to provide a written site agreement and some of the evidence that came out in that case that the tribunal was the operator asserted that they had always insisted that Mr. Groves was a casual occupant and that he couldn't stay there for more than 190 days a year, but they'd actually signed his Commonwealth rent application form. So they assisted him to apply for rent assistance, knowing that you can only get that if you're a permanent resident. And they also admitted to falsifying site fee receipts to hide the fact that he was a permanent. So they admitted to this in the tribunal on record, it was clear that the operator had acted in a way that there was a site agreement even though they insisted on him signing the casual occupation agreement. And it was only when the parties had a dispute about one thing that the operator began asserting that he was a casual occupant. Mr. Groves was successful at the tribunal, and they did get his written site agreement. Unfortunately for him, that wasn't the end, because the operator then advised Mr. Groves that, in fact, he couldn't live on this site, because this site was short term, and therefore it was only approved for short term residents. And again, Mr. Groves had not had knowledge of that when he entered into the agreement to live there. And so the operator then sought termination on the basis that the site wasn't able to be occupied on a permanent basis and issued a notice of termination and applied to the tribunal on that basis. And at the hearing, the member indicated that they would probably terminate the agreement on that basis. So we actually brokered an agreement whereby Mr. Groves agree to vacate the operator purchase, buy the home, and the agreement was terminated by consent. But it was pretty stressful couple of years for Mr. Groves going through all of that, because he wasn't aware that he was on a short term site, or that it wasn't able to live in his home.

From the facts of those cases, it's pretty clear that it's important for people to try and get an understanding of what it is they're actually buying into and what rights they will have, depending on what kind of agreement they're offered.

Yes, it's absolutely vital to carry out all those pre contractual inquiries, maybe go in, try and meet somebody in the community beforehand, speak to the vendor. Your vendor is often using real estate agents to carry out the sale. But I think it's important to go in to look around to speak preferably to some of the other homeowners or to someone from the residents committee and to carry out your full inquiries beforehand and do your research and obtain some independent legal advice because there's some real high end landlease communities where homes can sell for upwards of $1 million. So the range does vary greatly from your older style old caravan parks with the old vans right up to these new manufactured home estates where the homes sell for well in excess of $700,000 up to those that we sold, which were million dollar homes.

And obviously, people buying into that sort of a community have a very different financial situation to people living in other communities where these have been more typically a lower cost way of living or buying a home.

Yeah, that's correct. Traditionally, caravan parks and residential parks, as they used to be called, provided low cost housing to people because you could purchase a home like a caravan and annex for as low as $5,000. And people could actually get homeownership and have very low site fees and lower living expenses. And so they were very much seen as providing affordable accommodation, I think it's a bit of a stretch now to describe land lease living as affordable accommodation, because not only if the price of homes increased significantly, as Paul said, in the newer communities, you'll be lucky to find a new home that's for sale for anything less than 500,000. And increasingly, they're around six or 700,000 upwards, but also alongside that fees in these communities have increased. And again, that's to do with the facilities that then are providing. So consequently, that's what you're paying for. Site fees were traditionally very cheap as well. And that's unfortunately not the case anymore. In many of the newer communities and even all the communities we do see some site fee increases that don't appear to be commensurate with the standard of community that people are being asked to pay for. So my view is that they're becoming less affordable and they're more of a lifestyle and retirement choice for people.

What does site fees typically cover?

Well, your site fees cover basically the site that you rent - that's a specific size, and that's your own personal patch of ground. And then they cover the common areas and the facilities. So as Paul said, they're ranged from hardly anything like a little bit of green space and perhaps a barbecue area in some communities to these higher end communities where you've got everything from cinemas, bars and restaurants, gyms, saunas, bowling greens, hairdressing salons, some have even got facilities like physiotherapists coming in to provide services and things like that. So your site fees basically cover everything in the community - your right to live on the site, plus all of the common areas and facilities.

So as a homeowner, one of the unique things is that you don't have to pay rates to your local council. And as Julie said, a lot of the facilities and services are covered within the site fee that you pay the use of the other communal block, if a home isn't fully self contained. So you've got the shower and laundry facilities, you've got the use of the pool and other common facilities within the community. But for example, as a homeowner, you would not have to pay rates having no equity in the land, you're not a ratepayer have to your local council.

But a homeowner would still be responsible for their own water and electricity costs?

Yes. So you've got to pay for utilities, if they're separately metred and measured. So your electricity, your water, some communities might have mains gas or either bottled gas, but a homeowner has to pay for the utilities if they're separately measured and measured.

And does everybody in a particular community pay the same site fees? or can that vary?

Yeah, that can vary. And it commonly does. I'm not sure about new communities where people coming in, but I'm pretty sure that in almost every community site fees would vary. And traditionally, that was for what might be seen as valid reasons. For example, if your site was larger, you might pay a bit more if it's a coastal and you got views, you might pay a bit more, if you're on the river, you might pay more. So I think traditionally, whatever site fees you paid were generally to do with either the size of the site or your location in the community. And some communities were actually split and banded. So there would be like three sections. And there would be site fees this section and that section and that section, because they are, you know, particular attributes. But now I think site fees, like some communities we're aware of have multiple, like many, many, many different levels of site fees. And that's probably to do with some of those traditional reasons. But also now each time a new person comes into a community and signs a new site agreement, if the operator can, they will take the opportunity to increase the site fees for that site. And so that happens every single time, more or less, that a site changes hands. But also we're seeing more operators entering into agreements with homeowners for fixed methods, site fee increases. And so you'd now get communities that are split, where there are some people on increased by notice, and some people on a fixed method increase. And so the increases won't necessarily be the same. So that kind of skews the site fees in a community as well.

And I guess that makes it more complicated for someone new buying into a community to get an understanding of what their ongoing costs might be.

And it's the importance of homeowners when they get a disclosure statement and they get the documents is to take the time to carefully read it and to seek to get it some independent advice or to get an explanation because disclosure statements on the face can look quite straightforward. But it's often very worthwhile to carry out those inquiries in the disclosure statement says the current site fees for the site that you're interested in, and then specify what the dollar amount is weekly or fortnightly, they'll give the range of what the site fees are paid for in the community, what is actually the lowest site fee, what's the highest and then they have to disclose what is the proposed site fee for the site agreement that they're going to be offered by their operator. The constraint on that is that it should be in accordance with fair market value. But we're finding ever increasing circumstances where operators are taking advantage of new homeowners moving in and clearly exceeding fair market value or not applying what is fair market value for the site fee. And it's not uncommon to see situations of disputes going to the tribunal. Homeowners find out when they attend the first barbecue in the community that they've been done in terms of the site agreement they've signed up to and they're paying maybe $50 or $60, a week more for a similar size of site in the very same community.

And I guess that might have a flow on effect, then because the operator could argue the next time they want to make an increase that fair market value is higher because there's higher rents being paid for those site fees.

Yeah, it is quite common. So even if it's a matter of one or two weeks between home sales in the same community, pretty much they'll both have different site fees.

So in terms of responsibility within a community, what is the operator responsible for?

Well, the operator is responsible for ensuring that the community's reasonably safe and secure, that they maintain all of the common areas in the community in reasonable condition reasonably clean and safe to be fit for use for homeowners. They're responsible as well to ensure that there's an ongoing supply of utilities to homeowners, and to maintain and upkeep the community and to carry out any repair work to appropriate standards and ensure that the residential site that they offer to a prospective homeowner is in reasonable condition that it's fit for habitation at the commencement of the site agreement. So a site condition report is an important feature of any agreement that gets signed up to together with the standard form site agreement, which is found at the first shedule to the land lease communities regulation of 2015. There is a sheduled two form of site condition report. So that would set out what's on the site, the condition of the site in terms of say, the concrete slab or the driveway, what the landscaping is like, the general appearance or condition of the site disclosure information in relation to what services and facilities are provided to the site, your gas, your water, main sewer, phone, internet, things like that. So it's important to have regard to that and to look at that important information that is to be disclosed prior to signing up to a site agreement.

For the residents, are they rules that they have to follow living in a community?

Absolutely, yes, all communities have community rules. And homeowners, residents are required to abide by those rules. They're generally made by the operator. There is a requirement for their residents committee to be notified. But there's basically no process for residents of a community to be involved in the rulemaking process. And in fact, the rules are generally imposed on them. And the rules were introduced for the purpose of making sure the community was safe. So for example, speed limits, there'd be community rules about noise or noise after a certain time and things like that. But some communities now have extensive rules that cover all kinds of things, including disparagement clauses. Again, the rules in a community can impact what it's like to live in that community. And when you're considering moving into a community, that's one of the things you absolutely should have a look at, have a look at the community rules and see whether there's anything in there that you think might make it not such a great place for you to live, because they can have a big impact on your life.

Yeah, those rules are all about the use and enjoyment of the community by all of the persons who are there. And it's also about the control and management that operators can exercise over that community and the subject matter used to be restricted, but it's not the case anymore under the land lease Communities Act. So we are finding, as Julie said, some rather curious and unusual, maybe even harsh and oppressive issues making their way into community rules.

And in terms of the particular site that a person has their home on. If they're a homeowner within a landless community, can they alter their home or garden?

it's the standard form site agreement, you need to have the prior written consent of a land lease community operator if you want to make any alterations to the exterior of a home. So that's anything other than saying carrying out minor repairs or doing painting and you undertake when you sign a site agreement not to add any fixture to the site, and not to replace your home with another upcycle. Sometimes homeowners will if they've got an older home on site can get removed and replaced with a newer home. But you would need the consent of the operator to do that. And they agree in those agreements not to unreasonably withhold or refuse consent. So what you can and can't do can be governed by the terms of your site agreement and also the provisions of the land lease Communities Act in terms of homeowner responsibility

In terms of utilities within a community. Are there situations where there might be utilities which are not separately metered?

I would say in the majority of communities now the utilities are separately metered or measured. And you do find a bit of a split as well like within landless communities you might purchase or you might be supplied with utilities by an operator and you pay them directly for water, electricity, etc. And you supplied through what's known as an embedded network. And so that's an embedded network that's actually in the community that's owned and operated and maintained by the operator. So they will purchase the utility from an external provider, they'd be billed through a parent metre and then everything after that metre that runs through the community, would be the operators infrastructure, and they would build the homeowners individually. Whereas in other communities utilities are provided directly by for example, electricity retailer or the local water provider. So there's no one kind of system in all communities they do vary, but I would say on the whole, that utilities are separately metred in almost all communities these days.

You both provide advice to people living in residential land, these communities are there common issues that arise when people are seeking Advice.

Yes, a lot of the issues we get are usually when site fees are due to be increased. So we get questions about excessive site fee increases or about particular variation to agreements. We get a lot of queries as well about operator conduct. And often it can be linked to other issues or other disputes that happen between operators and homeowners in landless communities. We get questions about new community rules that are intended to be introduced, where if there is a residence committee that has been formed with the community, there is an obligation on an operator to consult and discuss in relation to a new community rule to be introduced. And there's a time limit for that to take place and for response. We get questions about community rules and their application. We get questions about sale of home on site, we get questions about what an operator is permitted to do. Sometimes we'll get questions about the interference with that right to sell a home on site. So they're the issues which often arise. We've often got questions about utilities about water and electricity. We've advised on the matters relating to water charges and also in relation to electricity charges as well. So those utility charges in communities. We've had questions as well about where operators have gone and got development consent to repair or upgrade a community and they've sought to relocate homeowners within the community and they offer a date of relocation or an offer to purchase a home and to relocate a homeowner to a new home. So often, complex arrangements and agreements that have been offered to homeowners we often provide that advice or backup and assistance to those homeowners. We said at the outset that these are leasehold rights only like you own your home but you have no equity in the land. We have a system in the past where communities were being closed for redevelopment. It's less of an occurrence now but over the past decade, there have been instances where older style residential parks have been sold, and have been redeveloped as either CEP seniors complexes or aged care facilities and homeowners have their agreements terminated before the tribunal have had to be adequately compensated for their loss of residency and for having to move elsewhere without being able to bring their home with them.

This podcast series is called law for community workers. Do either of you have any tips for community workers who are supporting somebody living in a residential LendLease community?

I guess the thing is that if someone's got a dispute, or if just got a question, the best thing is to get some expert advice. And there's a whole bunch of tenants advice and advocacy services throughout the state that can give free advice to people living in land lease communities, the tenants union, we've got a website tenants.org.au/theNoticeBoard, there's a whole bunch of information on there factsheets previous newsletters, submissions, reports, etc. There are residents groups operating in parts of the state that are really great people to go to to get advice and information. And there are mediation services available. Ultimately, there's the tribunal, but any tenants advice service or the tenant union or most residents groups would be able to jump in and provide some advice and information and that's the best thing to do. If you're going to assist someone then you need to be sure about the dispute and what the possible solutions might be. So I'd say yeah, speak to someone and get some expert advice.

Getting free independent impartial advice either from some of the residents associations, or from the tenant advice and advocacy services is important but also do make use of the regulator do contact New South Wales Fair Trading because ultimately they have responsibility for the residential landlords Communities Act or contact your local council because they are responsible for issuing the approval to operate to your operator. So sometimes it may be possible to resolve some of these issues by contacting the local council.

and if it's about utilities, there's always the energy and water ombudsman as well. He won like most landlines, community operators that provide utilities are required to be members of EWON and even if it's an external provider, EWON can also assist with utility disputes and questions about billing and things like that as well.

Thank you. They're great tips and you both provided very good advice for people considering purchasing a home in a residential land lease community. Thanks very much for your time today.

Thank you, Bridget. Thanks, Bridget.

We're now going to be joined by Kim. Kim that lives in a residential landless community in northern New South Wales and has a lot of insights into what life is like in such a community. Hi Kim, thanks for speaking to me today about life in a residential land lease community. Would you please tell us a bit about yourself?

Yes. I am currently a yoga teacher but also retired from my previous career, which was a social justice advocate for many years and I moved to where I lived to be closer to my son and where I could afford to live at the time.

I'd love to know a little bit about the community that you live in.

The community I live in is quite small. We've only got 85 houses here. There are some communities that have up to 700. Our's is quite - well, I believe it to be a bit unique. We take great pride in our gardens. And a lot of the people that live here are very much into the environment. It's a nice little community. It's eclectic. People from all sorts of backgrounds live here. There's a lot of very aged people in their 90s living here that have been here a long time, because we're quite an old community and younger people - that's over 55. But we do also have some children that live here, because they came in earlier. So it's a interesting community because there is a really diverse demographic within the community.

Kim, how long have you been living there?

I've been here 10 years, Bridget.

and why did you decide to buy into a residential land lease community?

it was never my thinking that I would buy into a residential land lease community. It was more, I retired and I wanted to live near my son and I couldn't afford to buy into the free market and something came up at that time. One thing that people may not realise is that you actually have to buy the house outright, you can't get a loan for that. So it's usually people like myself that have just downgraded that have sold somewhere else and don't have enough to buy back into the market. But these places allow for a person to own their own home and being a community

What factors would you say impact on your life when you live in a residential landlords community?

You really have to learn to live within a community where you're seeing neighbours every day or you're around people. I mean that was a bit of a challenge for me, you have to learn to balance those things. Some communities can be a little bit of a gossip haven, because people have reached the age where they're not getting a lot of input into their life outside of the village. I think our community's getting there. Some people love natives here, some people like flower gardens, you know, it's recognising that there's no size fits all and accepting and respecting that. As long as it fits into the legislation and other laws, you know, regarding the environment regarding you know, your behaviour to neighbours. This particular community is very quiet.

Kim, what about the park operator or manager employed by the park operator? Do they have an impact on your life?

Yes and no. It depends on how that person plays their role. Especially when it's a small community, it's very hard for them not to blur lines, you know, and the manager where I am, is an employee of a very large company who is the operator, and yet they're the ones that are here for the day to day tasks. It can be tricky at times. And that clarity of positions that we live here, we own our own homes, we pay rent, or site fees for the site that we sit on, and they are the manager and they are very different positions and different rights and responsibilities really.

would you say in the 10 years that you've lived in that community that life has changed in that time?

Life within the community is going through a rapid change at the moment. Two years ago, the operator changed a very large company bought the community and things did change - way of operating, way of relating to homeowners changed, but we live here and they work here. They are the ones basically making money from us. But the community is changing. Now when I first moved here 10 years ago, everyone was on an aged pension. And I've always believed that that's why these communities were set up were for people that were more vulnerable with less money to afford. Unfortunately, many of our communities are in highly sought after positions. So there is a bit of concern that the demand by people that have access to more resources is going to override the capacity of people like myself on pension or limited incomes won't be able to move in here anymore.

I imagine the current housing market would have an impact on the sorts of people who would now be buying into that community. Have you observed an increase in the cost of purchasing in your community over time?

It's been phenomenal Bridget, in the last three weeks, the jump where I live, it's now become pretty much unattainable for basically anyone unless they're very comfortable to buy in a region where I live. What I predict is that there is going to be a housing crisis for people like myself, particularly single women, our community's very highly represented with single women. When we all came here, the ones that have been here a while this was our only option, and that option is becoming less attainable. And also, you know, their friends and family can't buy near like they used to be able to.

Kim, you mentioned that you buy your property, but you pay site fees for the site, that your home is on. How are site fees calculated?

It's problematic , Bridget. The sale of the house is totally separate to the site agreement that is attached to your site fee. Two separate mechanisms and two separate people you're dealing with usually. The site fee, your site agreement, and you get a disclosure statement before the site agreement. And this disclosure statement should advise you what the previous the person is selling you the house is currently paying, and what is the highest in the community. It should tell you other information like any risks, any flood risks, any virus, anything happening there. All these should be available for you to see well before you sign your site agreement. Your site agreement will identify the way you're going to get site fee increases. So the site fee that is set for you is supposedly under what's called 'fair market value'. The site fee is supposedly the choice of the person that you're buying off and another site in a similar location and similar dimensions, and it is the highest of the two that is how your site fee is supposedly created at how they make a decision on what you will pay when you come in here. In many communities in New South Wales. Most of them started with a site fee by notice -it's a form which can get sent out once a year and it will inform you what your site fee will go up. And that was the way it's always been. Now in many communities, including where I am, new people are coming in on a fixed site fee, which means that it's fixed for a period of time. And in most cases, it's five years, it's fixed at 4% 5% 6%. I heard today 8% per year increase for five years. Now, if you look at that it's cumulative, that percentage amount. So you can have within a five year period, a very large increase in site fee. You also cannot dispute it. You can't take it to the tribunal if you are on a fixed. So my suggestion to most people is to attempt to go to by notice, but the majority of operators are not interested in that anymore.

From what you're saying Kim, that means that people in the community are paying different amounts in their site fees. Is that correct?

Absolutely. In recent months, I've gone through the whole mapping of site fees and there most definitely have been new people come in that did not get a fair market value site fee. Nowadays, there's a huge disparity, the range can be from 140 a week to somebody next door down the road paying nearly 200 for a similar site, similar location. The concern with that, of course is it's unfair. When we go for a site fee increase next time what we have to try and argue is, well if all these people are on this really high amount, why are you arguing about $6? So people will say, operators will say, managers will say 'but it doesn't affect you.' It will affect everyone in the community in the long run for sure.

What do those site fees cover?

Whatever the amenities are within the community that you live in, all of the amenities pills, table tennis courts, golf areas, also paying for the workers, the manager's salary and maintenance persons or anybody else that does work around the place. in some communities it means that the operator mows your lawn. it should cover the use of the infrastructure such as roads and repair and sewerage systems because they are part of the operators essence. That dilemma at the moment is there seems to be a real push for reduction of even abrogation of responsibility for the actual site you're paying site fees for. one would think that if something happened on your site, such as a big hole turns up like subsidence and you're paying site fees for that site that the operator would be responsible for fixing that hole. Many operators are skirting that responsibility at the moment and the Act does not clearly state that responsibility yet.

Kim, have there been problems that have arisen in your community between the operator manager and residents in the community?

Yes, there have. And it's not just since new ownership, there were different problems then. But a new ownership, there's been an adjustment on both sides. We're actually quite a strong little community here. We would like to get to a stage where negotiation and conciliation on issues is more possible. But at the moment, that seems there's not a preparedness. So we as a community have taken a number of issues to the tribunal, which is the NCAT tribunal, and basically is the only recourse that we have for determination on issues and the issues that come up are lack of maintenance. But we have resolved that I will say that has something that we have worked hard with the operator to have that resolved. But the setting of site fees is a big issue here for fair market value on what site fee should be set at. Also following up with management and the operator in regards to the information that should be in site agreements that isn't and the disclosure statement. So there's major issues and also arguing responsibilities in relation to assets and the asset is owned by the operator and should not be any replacement of that or another dwelling another anything put in should not be taken from site fees. So that's been our position a number of times, and we have been supported by outcomes in the tribunal. But, you know, it relies on a lot of hard work on a group of pensioners who are prepared to put in the hard slog. And as I said, these communities are growing in number all over the state. But the resources for advocates and support for the people that live there is actually reducing. So the reality is there is no real fairness in the relationships. And it takes some fairly strong determined volunteers to follow through with the support that they wish to give to their neighbours and friends within a community.

Kim, you've mentioned that there's quite a number of older people living within your community, have they experienced any problems with the operator?

over the years, most definitely they have. one of the things that I would say that's changed is that some of those much older people have become a little more tenacious, a little braver, because most people didn't know about the Act. Most people don't know about the legislation. people are quite fearful because historically, there has been retaliation for people that speak up. And that's why it's important that the people that are doing your speaking up are networking are supported and help each other. But their major concern now is that as many of them are women and women in their 90s did not have superannuation and are finding it quite difficult when each time the site fees go up. But there is some that live week to week on a pension. The other issue for many places in regional Australia is we have no public transport here around us. So people in the 90s once they lose their licence are basically community bound. So they're reliant on the neighbours and their friends in the community to take them places which we do when we can. COVID was very difficult for them. But because we can walk around our community, we know when a person is feeling a bit isolated, they come and stand on their veranda so someone will talk to them. So there is those niceties here. But I have to admit I do have a sense of community here. And I do have a sense of where I live and I don't want to lose that. I don't want to be priced out of here. So I'm prepared to fight it. I'm prepared to help people and help myself. I spent my life advocating for others. And that was primarily my career with disadvantaged young people. And one of the issues is these communities more and more aiming for over 55s, but they have not taken responsibility for when people get older. You want over 55 cashed up superannuants, but they are going to get older. And the reality is they're not going to move on to the next place in a hurry. They want to stay here. So it would be great if there was some recognition of that.

Kim, you mentioned residents committee, would you describe what that committee is and what you've managed to achieve through your residents committee?

All I can say is that residents committees are absolutely vital in every community, but only if they operate as a Residents Committee, which means they are there for the residents. They're there to advocate support represent the residents, not themselves, no self interest, and most definitely not the operator. There has to be a separation of positions. In our community, I have encouraged people to understand the need for a constitution that clarifies the role of the residence committee and to demonstrate strong advocacy for residents. But it is the same as any community management, it's volunteers, and in ours, it's volunteers who've retired and don't really want to be taking the battle on all the time. And even here I had resistance to that was, 'why do we need to know the act?' This is people on the committee. It's because this is what we're bound by. This is a document that tells us what our responsibilities are as much as what the operators is. There's something I heard today that I've found quite concerning from another community was that the operators had chosen who would be on the residents commitee and refused others. I mean, that's against the act. That's not legal, a operator cannot determine who is on a residents committee, and they cannot hinder the work of residents committee. And when we have such limited resources in the community to assist residents and homeowners, then at least the residents committee should be very clear about who they are, therefore, and they are there for their neighbours and their friends in a community to represent them.

From what you're saying, there's clearly a tension between the interests of the park operator and those of the residents and I guess they have different agendas.

One agenda is to make profit for their investors. And one's used to live a nice, quiet, peaceful lifestyle that they can afford very different agendas. And we accept that that is their agenda. But they're also limited within residential land lease Communities Act. Operators chose to buy within communities that are covered by a particular Act. It's not the same as a developer building a suburb and bound by other Acts. They never have to evidence that we're not viable and a person in business always going to want to increase their profit. But it has to be done within the legislation. But there still has to be recognition of the homeowner and the homeowner who was paying site fee to increase their profit and what we should expect back from that site fee. And that should include anything that happens on the site, it should include that the maintenance is done, it should include that we shouldn't have to fight every year, about a site fee increase. I've done calculations in here, and some people are paying 36% of their income. Now, that's over-housing stress, that is what's called poverty. The Act actually has a number of objectives. And these need to be addressed in any review. They wouldn't be all buying all these large companies be buying if they weren't profitable without having to keep increasing and gouging. That's the issue. And that's what people are frightened of here. That's the only real thing that people are concerned about in here is that they won't be able to afford to live here.

Kim, from your experiences. Do you have any advice for people who might be thinking about buying into a residential landless community?

I've thought about this. And it is always a dilemma for me, I can't hinder the sale for the person that selling it because that's also my neighbour. there's a real difference between what's in the act and what is your rights and reality. And you're negotiating with a real estate agent about the cost of the house and you haven't even started thinking about the site agreement or the site fee or how much it's gonna cost you forever. And then people suggest to get legal advice. Well, there are very few solicitors in the region that have an understanding of residential landless communities. And I have read some of the reports that people have received from solicitors and I just wonder how they wrote them and others have advised them not to move because it's just so foreign them and people move in often at a time of vulnerability. I would talk to them about just read the documents, is there a residence committee and just make sure the information is accurate. Make sure when you look at the site agreement and the terms of the site agreement that you understand those terms. Most operators will say 'oh you can negotiate.' I haven't found that to be reality. People are in a state of flux or in between two houses. A person says, 'No, this is the price you're gonna pay.' Well, people usually just go, 'oh, well, that must be what I have to pay.' So in a nutshell, I would just say read everything, don't skim over it read the rules. When you see inside a site agreement, it says you will not talk negatively about the organisation or the operator. It's a gagging clause. For people currently living in or community, we're not working in a business, these are our homes, there seems to be more and more items being put in a site agreement that possibly they're not suited to be there. We have the tennants union who are marvellous. At the same time that communities are developing and growing on a massive scale. None of their resources have increased. And some of the tenants advice areas in regional areas have actually had their resources reduced. So something that needs to be addressed at Ministers level is resourcing advocates and support people otherwise, all the terminology that's in all of the Acts about fairness, and fair trading, it's not true, there is no fairness. It's not fair. When there's an issue, there is no fairness. There are pockets of people like myself and the rest of the committee here that are interested and want to be involved. There are others that communities have no one. And when I look at the site fees that they are paying, it's obvious they have no one. I'm very concerned about some of those communities, how they're going to manage. And when we're looking at a housing crisis at the moment, and especially for women, especially for ageing women, I think we've got a real problem coming up.

Yes. Well, the greatest increase in homelessness is in older women.

Yeah, you know, and this was one place we could go, I'm a single woman, I was single when I moved in here. But, I've worked it out. If I was on a fixed rate, I would have maximum 15 years to live here. I could not afford it at the same rate of increase for more than 15 years. So you know, there's people here that will be worse off than me. Good people like myself, won't event be able to get in here. And one of the things I'm really concerned about Bridget is there is now a form that you have to fill out to be accepted to come into communities and that form you have to tell them what your income is and how much money you've got behind you in the bank. They will be screening out anyone that's on a pension. They're all members of an association which is incredibly powerful and well resourced and got solicitors and barister access and all sorts of I'm not saying terrible places I love living where I am. I love this community, everyone that lives here. And when it comes to when we need to deal with something that isn't fair, the process is so unfair to do it yet there have been some wins. It astounds me people I am meeting in the networking who are just so committed to assisting other people. I'm never going to crochet and I'm never going to play balls. So this is my retirement is using my knowledge.

This podcast episode forms part of a series that Legal Aid produces called law for community workers. Would you have any final tips to offer a community worker who might be supporting somebody living in a residential landlords community?

Be strong, know the Act backwards and listen to the resident. Just recognise who you're there for, and seek support in the networks that exist through tenants union and Legal Aid. You might also find if you have one person in a community that there may be many others in that community. So sometimes it's better to see what else is happening and talk to the residents community. I would always be open to any community worker any leval if they want to any insight on the working in a community.

Kim, thanks for your time today and for agreeing to share your knowledge and experience of what it's like to live in a residential land lease community.

Thank you so very much for the opportunity, Bridget.

Thank you for listening to this episode. In our series called renting matters. Please have a look at the show notes for links to useful resources on residential landlords communities. In our next episode, we talk about share housing or being a border and lodger in New South Wales, the problems that arise in those situations and the rules and laws that apply to those living arrangements. We hope you join us again for our next episode.