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Residential Parks

The Residential Parks Act 2007 (SA) covers certain types of rental agreements (known as 'residential park agreements') in residential parks.

A 'residential park' is land where a group of sites or dwellings with access to common property (for example, bathroom, laundry) are available for rent. A caravan park is an example of a 'residential park'.

A 'dwelling' is:

  • a structure designed for and capable of being used for human habitation (the structure can be fixed or moveable, but tents are not included); or
  • a motor vehicle or trailer designed for and capable of being used for human habitation.

[Residential Parks Act 2007 (SA) s 3]

Contacts:

Tenancies Branch


Consumer and Business Services


91 Grenfell Street ADELAIDE SA 5000


Telephone: 131 882

South Australian Civil and Administrative Tribunal


Level 4, 100 Pirie St


ADELAIDE SA 5000


1800 723 767


Email: sacat@sacat.sa.gov.au

Legal Services Commission


159 Gawler Place ADELAIDE 5000


Telephone: 8111 5555


Legal Help Line: 1300 366 424

Relevant forms can be downloaded from the SA Gov- Residential Parks website.

Principal place of residence

What agreements are covered by the Act?

The Residential Parks Act 2007 (SA) only applies if the park is your principal place of residence (for example, if it is your address on the electoral roll) [see ss 5(1), 5(2)].

The Residential Parks Act 2007 (SA) (the Act) applies to all residential park agreements where the park is your principal place of residence, including agreements (written or verbal) entered into before the Act began. Any rights and responsibilities in agreements entered into before the Act commenced, or any park rules, must now comply with the Act. Any rights and responsibilities or park rules that do not comply with the Act can no longer be enforced [see Residential Parks Act 2007 Schedule 1].

However, verbal agreements entered into before the Act commenced do not have to be put into writing, and written agreements entered into before the Act commenced do not have to comply with the new requirements for written agreements [see Residential Parks Act 2007 (SA) s 10 and Schedule 1].

What agreements are not covered by the Act?

Holidays

The Residential Parks Act 2007 (SA) does not apply to people who rent dwellings or sites for a holiday. Generally, if there is an arrangement that you stay 60 days or more at a park, it is presumed NOT to be a holiday and to be your principal place of residence. If you are in fact on holiday but want to stay 60 days or more, this can be stated in the agreement to make it clear the Act does not apply [see Residential Parks Act 2007 (SA) ss 5(3) and (4)].

A park owner cannot avoid their responsibilities by stating that the accommodation is for a holiday if the park is your principal place of residence. Similarly, the park owner cannot avoid their responsibilities by making a series of separate agreements for less than 60 days (implying you are on holidays), if the park is in fact your principal place of residence [see Residential Parks 2007 (SA) ss 5(4), 5(5), 5(6)].

Other agreements

The Act does not apply to a(n):

  • hotel or motel
  • educational institution, college, hospital or nursing home
  • club premises
  • home for aged or disabled persons
  • retirement village
  • supported residential facility

The Act also does not apply to boarders and lodgers, agreements for sale of land and/or dwelling which includes the right for one of the parties to occupy the land and/or dwelling; nor to a mortgage agreement [see Residential Parks Act 2007 (SA) s 5(7)].

Types of residential park agreements

'Residential park agreements' are agreements where:

  • the park operator agrees to let you rent a site to put a dwelling on ('residential park site agreements'); OR
  • the park operator agrees to let you rent a dwelling on a site ('residential park tenancy agreements'); OR
  • a resident sub-lets the dwelling to you (‘sub-tenancy agreement’) (this is where the resident gives you exclusive right to live in the dwelling). Sub-letting can only happen in certain circumstances. (see Sub-letting)

These are all considered to be residential park agreements [see Residential Parks Act 2007 (SA) s 3].

Different rules apply depending on whether the agreement is a residential park site agreement or a residential park tenancy agreement in relation to ending agreements and in relation to the park operator's rights of entry to property.

Periodic or fixed term agreements?

Agreements can be periodic or for a fixed term.

A fixed term agreement is for a defined period and has a set starting date and a set ending date. However, the agreement does not automatically end on the set date.

If neither the park operator nor the resident have ended the agreement in accordance with the Residential Parks Act 2007 (SA) (see Terminating an Agreement) then the agreement continues as a periodic tenancy [see Residential Parks Act 2007 (SA) s 53]. A standard agreement has been produced by the Tenancies Branch of Consumer and Business Services.

A periodic agreement is for a recurring period without a fixed term (it has a starting date but no specified end date). A periodic tenancy can continue indefinitely. It goes on recurring automatically until something is done by the parties to end it.

The length of the 'period' of a periodic tenancy is the length of time between rental payments under the agreement. For example, if rent is payable fortnightly, the 'period' of the tenancy is a fortnight; and if rent is payable every calendar month, the 'period' is a calendar month. The length of the period is important when ending the agreement (see Terminating an Agreement). A standard agreementhas been produced by the Tenancies Branch of Consumer and Business Services.

A fixed term agreement for 90 days or less (called a short fixed term agreement) is assumed to be periodic. That is, the rules for ending the agreement are those applying to periodic tenancies, not fixed term agreements. In this case, the 'period' of the tenancy is the length of the fixed term. For example, if the agreement allows you to rent for 60 days, then the recurring 'period' of the tenancy is 60 days.

There are two exceptions to the rule that short fixed term agreements are treated as if they are periodic. The agreement will not be treated as periodic if the resident genuinely wants an agreement ending at the end of the short fixed term and the term was fixed at the resident's request. The other situation is where the park operator gives the resident a proper notice (Form H) containing a warning that the resident cannot expect the agreement to continue after the set date and the resident signs the notice [see Residential Parks Act 2007 (SA) s 4].

Making a residential park agreement

All residential park agreements must:

  • be in writing;
  • be clear and precise;
  • identify the site clearly and precisely;
  • be signed by both parties;
  • include the standard terms and information under the Residential Parks Act 2007 (SA) and Residential Parks Regulations 2007 (SA);
  • include the full details of the park owner (name and address or address of registered office of the company); and
  • full name and place of occupation of the resident.

A copy of this agreement must be provided to the resident. Failure to do so can result in an expiation notice of $105 or a fine of up to $750. The park rules are automatically considered part of any residential park agreement. Any cost incurred preparing an agreement is the responsibility of the park owner [see Residential Parks Act 2007 (SA) ss 10 - 13].

There are pro-forma residential park agreements available from the SA Gov- Forms and Factsheets for Residential Park Tenancies website.

Disputes

A resident can make an application to the South Australian Civil and Administrative Tribunal (SACAT) to change or delete a term of a residential park agreement if the term is harsh or unconscionable [see Residential Parks Act 2007 (SA) s 45].

Discrimination against Children

A potential resident can not be refused entry to a residential park on the basis that a child will be living on the rented property. The only time they can be refused is if the residential park is limited to persons over 50 years of age or the manager of the park resides in the dwelling or adjacent to it. If this discrimination occurs, then the park owner can be fined up to $1250 [see Residential Parks Act 2007 (SA) s 17].

What information needs to be provided to the resident?

Certain information is required to be provided to residents either before or when entering into a residential park agreement.

This includes:

  • copies of the park rules;
  • written notice of any fees and charges for services provided by the park owner;
  • what utilities the resident needs to pay;
  • contact details for the park owner, including full name and address or registered office of the company;
  • contact details for a person who can conduct emergency repairs;
  • whether the resident is entitled to any other payment when they cease to occupy the premises (other than a bond);
  • in the case of a residential park site agreement, the residents rights to sell or relocate a dwelling on the site and any arrangements if they can not sell;
  • the information notice (Form J) provided by the Tenancies Branch of Consumer and Business Services; and
  • instruction manuals for appliances and devices as part of the rented premises or common area.

If the park owner changes, the new owner must notify the resident in writing of the change of details within 14 days. If this information is not provided, an expiation fine of $105 may be imposed or a fine of up to $750.

[See Residential Parks Act 2007 (SA) s 14].

What are the rights and responsibilities of each of the parties?

Park Owners Rights and Responsibilities

The park operator is required to:

  • provide the rented property in a clean and reasonable state;
  • allow the resident peace, comfort and privacy;
  • keep the common areas of the park and any garden or other areas in the park in a reasonable state of cleanliness;
  • arrange for the regular collection of the resident’s garbage and any other garbage in the park;
  • maintain and repair the rented property and common areas of the park (having regard to their age, character and prospective life);
  • maintain all trees in the park in a condition that does not create any unreasonable risk to the safety of residents or their property;
  • provide and maintain locks and other devices to ensure the rented property is reasonably secure;
  • provide the resident with 24 hour vehicular access to the rented property, bathroom and toilet facilities and reasonable access to other common areas;
  • provide a copy of a key or the information required to open any security device that restricts access to the park;
  • give proper receipts for any money received from the resident, except if rent is paid into a bank account and a written record containing the same information is maintained;
  • provide the resident with a copy of the residential park agreement;
  • provide the resident with a copy of the information notice (Form J) from the Tenancies Branch of Consumer and Business Services, the park rules and any other information required as listed above.

See Residential Parks Act 2007 (SA) ss 11, 24, 28, 31-35.

If the park owner does not comply with some of these responsibilities then they can be fined, see the Residential Parks Act 2007 (SA) for more detail.

NOTE: The above details are not a complete list of the park operator's rights and obligations under the Residential Parks Act 2007 (SA)

Maintenance and repairs

A park owner is under an obligation to repair and maintain the rented property and common areas in a reasonable state. Any damage from ordinary wear and tear is the park owner's responsibility to repair.

The resident must notify the park owner of any damage that has occurred, whether it be their fault or through ordinary wear and tear. A resident must not deliberately or negligently cause damage to either the rented property or common areas and if they do the repairs must be paid for by the resident. This applies to damage caused by themselves or their visitor. The resident can be refunded for emergency repairs that are undertaken by a licensed tradesperson as long as the damage was not their fault and they attempted to contact the park owner [see Residential Parks Act 2007 (SA) ss 35 and 36].

What can be in the Park Rules?

The Residential Parks Act 2007 (SA) specifies what rules the park owner may make about the use, enjoyment, control and management of the park. The park owner or operator of a residential park may make rules about:

  • the use of common areas and the operation of common area facilities;
  • the making and reduction of noise;
  • the carrying on of sporting and other recreational activities;
  • the speed limits for motor vehicles;
  • the parking of motor vehicles;
  • the disposal of rubbish;
  • the keeping of pets;
  • maintenance standards for dwellings installed or located in the residential park by residents, as they affect the general amenity of the park;
  • the landscaping and maintenance of sites for dwellings;
  • the terms of any sub-tenancy managing agent agreements between the park owner and residents;
  • limiting who may become residents to persons who are over the age of 50 years;
  • guests or visitors of residents;
  • any other matter allowed under the Residential Parks Regulations 2007 (SA).

[Residential Parks Act 2007 (SA) s 6]

A park owner may change the park rules. A change only takes effect when each resident has been given 14 days written notice of the change. If there is a residents' committee, the park owner must consult and consider the views of the committee in relation to any proposed rule change [see Residential Parks Act 2007 (SA) s 8].

A resident may make an application to the South Australian Civil and Administrative Tribunal(SACAT) for an order declaring a park rule to be unreasonable. This application must be a joint application made by residents from a majority of the occupied sites in the park [see Residential Parks Act 2007 (SA) s 9].

Right of entry of park owners

A park owner has different rights of entry to the rented property depending on whether the agreement is a residential park tenancy agreement or a residential park site agreement.

Residential park tenancy agreement rights of entry

The park owner can only enter the rented property:

  • in the case of an emergency (including to carry out urgent repairs or avert danger to life or valuable property)
  • at a time previously arranged with the resident to collect the rent but not more than once every week (if the resident has agreed that the park owner can collect the rent from the rented property)
  • for the purpose of reading the relevant meter if the resident is required to pay that utility
  • at a time previously arranged with the resident to inspect the rented property but not more than once every 3 months,
  • to carry out necessary repairs or maintenance at a reasonable time giving at least 48 hours written notice
  • to show the rented property to prospective residents at a reasonable time and on a reasonable number of occasions during the last 14 days of the agreement, after giving reasonable notice to the resident
  • to show the rented property to prospective purchasers at a reasonable time and on a reasonable number of occasions, after giving reasonable notice to the resident
  • for any other purpose not listed here and the park operator gives the resident written notice stating the purpose and specifying the date and time of the proposed entry between 7 and 14 days before entering the rented property
  • with the consent of the resident
  • the park operator believes the resident has abandoned the rented property.

See Residential Parks Act 2007 (SA) s 40.

Residential park site agreement rights of entry

The park owner can only enter the rented property:

  • to avert danger to life or valuable property
  • for the purpose of reading the relevant meter if the resident is required to pay that utility
  • to ensure compliance with statutory requirements relating to separation distances between structures on neighbouring sites and removal of hazardous materials, only at a reasonable time and on a reasonable number of occasions
  • to maintain a lawn or for grounds maintenance, at a reasonable time and on a reasonable number of occasions as agreed when the residential park agreement was entered into
  • with the consent of the resident
  • in accordance with the regulations.

See Residential Parks Act 2007 (SA) s 41.

NOTE: A park operator does not have any other rights of entry to the rented property.

Residents' Rights and Responsibilities

The resident is required to:

  • pay the rent on time;
  • not give the park owner false information about their identity or place of work;
  • obey the park rules;
  • keep the rented property in a reasonable state of cleanliness;
  • notify the park owner of any damage to the rented property and common areas;
  • not intentionally or negligently cause or allow damage to be caused to the rented property or common areas;
  • notify the park owner when repairs to the rented property are needed;
  • not attach fixtures or make alterations to the rented property without the park operator's written consent;
  • not remove, alter or add a lock or other security device to the rented property without the park owner's consent;
  • not make any alteration or addition to the outside of the dwelling or add any structure to the site without the park operator's written consent;
  • not use or allow the rented property to be used for any illegal purpose;
  • not cause or allow a nuisance or interference with the reasonable peace, comfort or privacy of another resident or person residing in the immediate vicinity of the park;
  • give the rented property back to the park operator in a reasonable condition and in a reasonable state of cleanliness;
  • provide a forwarding address to the park operator if they ask for it.

[See Residential Parks Act 2007 (SA) ss 12, 15, 25, 32, 36-39 and 89].

Failure to comply with some of these responsibilities can attract fines, see the Residential Parks Act 2007 (SA) for more information. Particularly, it is an offence for a resident to intentionally cause serious damage to the rented property or common property and a fine of up to $2,500 can be imposed [see Residential Parks Act 2007 (SA) s 36(2)].

NOTE: The above details are not a complete list of the resident’s rights and obligations under the Residential Parks Act 2007 (SA).

Alterations to the rented property

The resident can not alter the rented property without seeking written permission of the park owner. This applies to both residential park tenancies and the exterior of dwellings installed under residential park site agreements [see Residential Parks Act 2007 (SA) ss 37 and 38].

Vicarious liability

The resident is vicariously liable for the behaviour of a person who is on the rented property through their invitation or with their consent. This means that the behaviour of visitors is treated as being the behaviour of the resident and can result in a breach of the agreement [see Residential Parks Act 2007 (SA) s 44].

Serious Acts of Violence

If a resident or one of their visitors is reasonably suspected of committing a serious act of violence or the safety of any person in the park is in danger then the park owner may give them notice (using Form B) to leave immediately. If there is not reasonable grounds, then the park owner can be fined.

The exclusion period is for 2 business days or if the park owner makes an urgent application to terminate the residential park agreement, for 4 days or until the South Australian Civil and Administrative Tribunal (SACAT) determines the application [see Residential Parks Act 2007 (SA) ss 95 and 96].

Residents' Committee

Residents from at least 5 different occupied sites in a residential park may form a residents' committee to represent the interests they have in common as residents of the park. Only a resident may be a member of the committee, and any resident who is employed or engaged by the park owner to assist in the management of the residential park may not be a member of the committee. Only one residents' committee may be formed in a residential park. A resident of a residential park has a right to participate in any organisation of residents of that residential park or of residential parks generally.

A park owner must not unreasonably interfere with a resident’s rights to participate in a residents' committee. A park owner must, insofar as is reasonable, allow the use of a room within the residential park for the purposes of a meeting called by a residents' committee.

If a residents' committee has been established for the residential park, the park owner must consult, and consider the views of, the committee in relation to any change to park rules [see Residential Parks Act 2007 s 7].

Bond and rent

The Residential Parks Act 2007 (SA) sets out certain criteria for the payment of rent and bond, increases to rent and record keeping for rent. The park owner can only require one bond to be paid which can not be more than four weeks' rent. Money received as a bond must be receipted within 48 hours. All bonds must be paid into the Residential Tenancies Fund using a Residential Park Bond Lodgement Form within seven days of receipt [see Residential Parks Act 2007 (SA) s 27 and 28].

Whether or not a bond is paid, the Act applies to all residential park agreements in South Australia.

At the beginning of the agreement a resident can also be required to pay the first two weeks' rent. If two weeks' rent is paid at the start of the agreement, no more rent is due until those two weeks have passed. Rent can not be collected at the rented premises, unless the alternative has been refused by the resident. Receipts must be provided for rent paid within 48 hours, unless rent is paid into a bank account and written records are maintained.

Besides a bond and two weeks' rent in advance, the park owner cannot ask for any other money at the start of the agreement [s 18].

The park owner can also not require any payment from a tenant to extend or renew an agreement [s 18].

Rent increases

Rent can only be increased if written notice has been given. Increases in rent can be excluded or limited by the residential park agreement, if the agreement is for a fixed term rent can not be increased during the term unless specifically agreed.

The park owner can increase the rent:

  • where the terms of the agreement allow it (eg: for fixed term agreements, provision for rent increases must be written into the agreement);
  • if the increase is twelve months since the agreement started or twelve months from the last rent increase;
  • the resident must be given 60 days' written notice of the date from which the rent will be increased;
  • If specific rent increases are set out in an agreement and the date on which the increases will occur are clearly defined, 60 days’ written notice is not required;
  • within 60 days after a housing improvement notice has been revoked with at least 14 days notice.

See Residential Parks Act 2007 (SA) s 21.

Rent can be reduced by agreement and can occur on a temporary basis.

Residents can apply to the South Australian Civil and Administrative Tribunal (SACAT) within 30 days of receiving notice of a rent increase for a determination that the proposed rent increase is excessive. The Tribunal can fix the amount of rent payable for that property and the length of time the rent will stay at that amount [see Residential Parks Act 2007 (SA) s 22].

Bond Refunds

If at the end of the residential park agreement the park owner and resident agree on how the bond is to be repaid then the Residential Park Bond Refund Formneeds to be signed by both parties and filed at the Tenancies Branch of Consumer and Business Services.

Disputed Bonds

If one party has not signed, the form should still be lodged and the other party will be given 10 days to provide a written notice of dispute. If this is not received then the bond will be paid according to the applicant's wishes.

If no agreement can be reached then the dispute can be conciliated or mediated to try and reach a negotiated agreement or the South Australian Civil and Administrative Tribunal (SACAT) can decide how the bond is to be disbursed.

[See Residential Parks Act 2007 (SA) s 29].

Other charges

If your site is not individually metered for water, electricity or gas, the park owner cannot charge you separately for these services. However, any costs for providing the site to you can be included in the amount you are charged for rent.

If your site is separately metered for water, electricity or gas, the park owner can make it a term of your residential park agreement that you can be charged separately for these services. Similarly, if bottled gas is supplied to you by the park owner, you can be charged separately for the amount of gas you use, if this is a term of your agreement [Residential Parks Act 2007 (SA) s 43].

You can request the park owner to give you details of the separately metered charges for water, electricity, gas or bottled gas, including details of the period of time the charges relate to, the amount used and the amount of the charges. If this information is not provided, you do not have to pay the charges claimed by the park owner.

A residential park agreement can include a term that allows the park owner to charge a fee if you have an overnight visitor (the amount must be stated in the agreement). A fee can only be charged for overnight visitors if your agreement includes such a term.

Sub-letting and assignment

Sub-Letting

A resident may enter into a sub-letting agreement with another person either in writing or orally when:

  1. there are park rules in force that define the terms on which the park owner will act as a managing agent for the agreement and the services to be provided by the park owner; and
  2. the park owner consented; and
  3. there is a sub-tenancy managing agent agreement between the resident and the park owner.

The park owner can also make a park rule declaring that no sub-letting agreements can be made by residents.

[See Residential Parks Act 2007 (SA) s 5].

Assignment

An effective assignment of the resident's interest in a residential park agreement results in another person taking over the lease of the site or dwelling. This means that the resident is no longer be liable under the agreement. An assignment can be verbal or written and must have the park owner's written consent.

A resident should ensure that they get consent because if they don’t they may still be considered liable under the agreement, or the park owner could terminate the agreement. A park owner can not unreasonably withhold consent and will be assumed to have consented after seven days after receiving a written request for consent with the assignee's full details. Always seek advice before entering into an agreement assigning your interest to another party.

[See Residential Parks Act 2007 (SA) s 48].

Selling a dwelling owned by a resident

A resident owns a dwelling and enters into a residential site agreement with the park owner. The fixed term of the agreement is for four years. After two years the resident decides to sell the dwelling. The resident has the right to sell the dwelling but must first inform the park owner of their intention to sell, before putting up a for sale sign. The resident must also obtain the park owner's written consent to assign and effectively transfer the residential site agreement to the buyer of the dwelling.

[Residential Parks Act 2007 (SA) ss 48 and 50].


Ending an agreement

The Residential Parks Act 2007 (SA) specifies when and how a residential park agreement can end, and what length of time is required to be provided as notice. The amount of notice required depends on what type of agreement it is (site or tenancy and periodic or fixed term), who is terminating the agreement and why they are terminating the agreement.

Notice required for ending the agreement

Termination by the park owner: site agreement:

  • breach of agreement (including rent arrears) : 28 days;
  • successive breaches : 28 days;
  • serious misconduct : immediate;
  • no specified grounds – periodic agreement only : 90 days;
  • end of fixed term agreement : 28 days;
  • agreement frustrated : immediate if rented property destroyed / uninhabitable or ceased to be lawfully usable for residential purposes. If the rented property has been acquired by compulsory process – 60 days.

See Residential Parks Act 2007 (SA) ss 68-73.

Termination by the park owner: tenancy agreement:

  • breach of agreement (including rent arrears) : 14 days;
  • successive breaches : 14 days, or 7 days if successive rent arrears breaches;
  • serious misconduct : immediate;
  • sale of rented property : periodic tenancy only : 28 days or a period equivalent to a single period of the tenancy (whichever is longer). This means that if the resident pays rent calendar monthly, the park owner would need to give a calendar month’s notice. A park owner can only use this notice if they have entered into a contract for sale of the rented property and they are required, under the contract, to give vacant possession of the rented property to the new owner;
  • no specified grounds : periodic tenancy only : 60 days or a period equivalent to a single period of the tenancy (whichever is longer);
  • end of fixed term agreement : 28 days;
  • agreement frustrated : immediate if rented property destroyed / uninhabitable or ceased to be lawfully usable for residential purposes. If the rented property has been acquired by compulsory process : 60 days.

[See Residential Parks Act 2007 (SA) ss 56-62].

Termination by the resident: site and tenancy agreement:

  • breach of agreement : 14 days;
  • successive breaches : 14 days;
  • no specified grounds : periodic agreement only : 21 days for a tenancy agreement, or a period equivalent to a single period of the agreement (whichever is longer); 28 days for a site agreement, or a single period of the tenancy (whichever is longer). This means that if you pay rent calendar monthly, you will need to give the park owner a calendar month’s notice;
  • end of fixed term agreement : 28 days;
  • agreement frustrated : immediate.

See Residential Parks Act 2007 (SA) ss 63-78.

Where a notice is given for breach of agreement (using Form A), if the breach is not rectified within the required period (as set out on the breach notice), the agreement terminates when the notice expires. If the resident does not give vacant possession of the rented property to the park owner by the date specified on the notice, the park owner can apply to the South Australian Civil and Administrative Tribunal (SACAT) for an order of possession.

Other than by serving the appropriate notice, neither the park owner nor the resident can terminate a fixed term agreement until the final day of the agreement, unless they both agree. If you have a fixed term agreement and you want to leave the rented property and terminate the agreement before the end of the fixed term, discuss it with the park owner and try to come to an arrangement. It may be, however, that you will be liable to the park owner for the costs associated with finding a new resident, reletting the rented property and for any loss of rent.

Terminating an Agreement

A residential park agreement can be terminated if:

  • either the resident or park owner giving the appropriate notice to the South Australian Civil and Administrative Tribunal (SACAT)
  • a person with superior title to the park owner takes possession of the rented property through a South Australian Civil and Administrative Tribunal or court order
  • a mortgagee takes possession of the rented property
  • the resident abandons the rented property
  • the resident dies without dependants in occupation of the rented property
  • resident gives up possession of the rented property with the park owners consent
  • the interest of the resident merges with another estate or interest in the land

See Residential Parks Act 2007 (SA) s 52.

If the rented property is subject to a housing improvement notice then the park owner can only terminate on a specified ground and only if authorized by SACAT.

Termination for Breach of agreement

Either the park owner or the resident can give written notice (using Form B or Form B1 respectively) to the other for termination due to a breach of the residential park agreement. The breach must be remedied within the specified time on the notice, or the agreement is terminated.

If the breach is in relation to unpaid rent, the notice is ineffectual unless the rent was in arrears for at least 7 days prior to the notice being issued.

If the breach is in dispute, the resident or park owner may apply to the South Australian Civil and Administrative Tribunal (SACAT) for an order declaring that they are not in breach or have remedied the breach and that the agreement can not be terminated or, alternatively, reinstating the agreement. SACAT can also reinstate the agreement, despite a valid termination for a breach, on the basis of it being just and equitable [see Residential Parks Act 2007 (SA) ss 56, 63, 68 and 74].

If the tenant does not give up possession of the property after the specified time period and the termination is valid the park owner can apply to SACAT for an order of possession. This order can only be enforced by a baliff of SACAT [see Residential Parks Act 2007 (SA) ss 83 and 87].

Both the park owner and the resident can terminate if the other party has breached a term of the agreement and has already breached the same term, at least twice before [see Residential Parks Act 2007 (SA) ss 57, 64, 69 and 75].

Termination for serious misconduct by resident

A park owner can terminate the residential park agreement immediately because of serious misconduct by the resident or their visitor (using Form B). Serious misconduct includes intentionally or recklessly causing or permitting, or likely to cause or permit personal injury, serious damage to property in the residential park, or serious interference with reasonable peace, comfort or privacy of another resident or person residing in the immediate vicinity [see Residential Parks Act 2007 (SA) s 70].

Termination for Serious Acts of Violence

If a resident is reasonably suspected of committing a serious act of violence or the safety of any person in the park is in danger and the park owner has served an exclusion notice (Form E) on them excluding them from the park. Then the park owner can make an urgent application to the South Australian Civil and Administrative Tribunal (SACAT) to terminate the residential park agreement. This application must be made during the exclusion period [see Residential Parks Act 2007 (SA) s 97].

Other grounds for termination

After giving the appropriate notice (using Form C), termination of a periodic tenancy agreement for a residential park tenancy agreement can also occur due:

  • sale of the dwelling or rented property;
  • for no specified reason, provided the appropriate notice has been given;
  • when the agreement has been frustrated (this happens when the property is uninhabitable, partially or wholly destroyed, can not lawfully be used as a residence or has been compulsorily acquired). The appropriate notice (Form D) must be used.

[See Residential Parks Act 2007 (SA) ss 59-62, 65 - 67, 71-73, 76-78].

Termination by application to the South Australian Civil and Administrative Tribunal (SACAT)

If a breach has occurred that justifies the termination of the agreement both the park owner and the resident can apply to the South Australian Civil and Administrative Tribunal (SACAT) to terminate the agreement and make an order for repossession of the rented property.

Termination can also be justified by SACAT if the continuation would cause undue hardship to either the park owner or the resident. SACAT can make an order compensating a park owner or resident for loss or inconvenience caused by the early termination of the agreement [see Residential Parks Act 2007 (SA) ss 79-81].

If the resident does not leave after termination

The park owner can apply for an order of possession from SACAT if the resident does not vacate the rented property after termination. The resident may also be liable to pay compensation for any loss incurred for failing to comply with an order [see Residential Parks Act 2007 (SA) s 83].

Response for enforcing resident’s rights

If the park owner makes an application to terminate the residential park agreement or for repossession of the property and SACAT finds that the park owner was even just partially motivated to make the application due to the resident complaining to a government agency or trying to enforce their rights, then SACAT can refuse the application and/or reinstate the residential park agreement [see Residential Parks Act 2007 (SA) s 88].

Abandoned property

Rented Property

A park owner can apply to the South Australian Civil and Administrative Tribunal (SACAT) for an order for possession when the rented property has been abandoned. The resident is also liable for any loss caused by the abandonment. However, the park owner must mitigate their loss [see Residential Parks Act 2007 (SA) s 84].

If personal property has been abandoned on site by the resident then the park owner must deal with it in accordance with the procedure stated in the legislation. The nature of the abandoned property will dictate what the park owner can do with it [see Residential Parks Act Act 2007 (SA) s 90-94]. See'Personal property'.

Deciding if a property has been abandoned

The following considerations are taken into account:

  • unpaid rent;
  • if the dwelling is unoccupied and neglected;
  • if mail remains uncollected;
  • reports from neighbours or other residents about the absence or whereabouts of the resident;
  • whether electricity or other services have been disconnected;
  • whether personal effects have been removed from the property.

See Residential Parks Act 2007 (SA) s 84.

Repossession of rented property

No one can enter a rented property to take possession of it before or after the end of a residential park agreement unless the resident abandons it, voluntarily gives up possession or the person is authorized by order of a court or SACAT. Only a bailiff of SACAT can enforce an order of repossession [see Residential Parks Act 2007 (SA) ss 85 and 87].

Personal Property

There is a specific procedure to deal with personal property that has been abandoned by the resident. Any perishable items can be immediately thrown out, and so can any items whose value is less than the fair estimate of the cost of removal storage and sale of the property [see Residential Parks Act 2007 (SA) s 92].

Valuable Property

Valuable property is any property that the value is more than the cost of removal storage and sale. Any valuable property needs to be dealt with in a specific way. Notice must be given to the former resident and the property must be kept safe for 28 days (using Form I). Reasonable costs must be paid by the owner of the property to reclaim the property. If the property is not claimed within 28 days then the property may be sold at a public auction. The park owner may only keep the funds from this sale to cover the reasonable cost of dealing with the abandoned property and any amounts that are owing under the residential park agreement. The balance is to be paid to the owner of the property, or if they can not be found, to the Residential Tenancies Fund [see Residential Parks Act 2007 (SA) s 92].

Personal Documents

The park owner must notify the former resident and hold the documents for 28 days. If not claimed then they can be destroyed [see Residential Parks Act 2007 (SA) s 93].

Abandoned dwellings

If the former resident has abandoned a dwelling at the site, then the park owner must keep it safe and must apply to the South Australian Civil and Administrative Tribunal (SACAT) for an order of possession. After this order has been received then the park owner must comply with the same procedures described above [see Residential Parks Act 2007 (SA) s 94].

Disputes

Disputes can be resolved in a few different ways. A person involved in a dispute can contact the Tenancies Branch of Consumer and Business Services. They can assist in conciliating the dispute. Or, an application can be made to the South Australian Civil and Administrative Tribunal (SACAT) for a particular order.

Some disputes can be sent to mediation to help the parties negotiate a solution to their dispute. Mediators can make consent orders which are the same as if the South Australian Civil and Administrative Tribunal (SACAT) had made the order. Or, the dispute may go to a hearing at the Tribunal.

Disputes can be resolved by:

  • negotiation and conciliation
  • mediation and a consent order being made
  • decision by SACAT and an order being made

The South Australian Civil and Administrative Tribunal (SACAT)

The South Australian Civil and Administrative Tribunal (SACAT) has exclusive jurisdiction to hear and determine a residential park dispute.

The Tribunal can not hear claims for money over $40 000 unless both parties consent in writing. Once consent is given it cannot be revoked (taken back).

If there is no consensus for the Tribunal to hear a claim for over $ 40 000 then it must be heard in a court with jurisdiction to hear the matter [see Residential Parks Act 2007 (SA) s 103].

SACAT can make many different orders after one of the parties has lodged an application [see Residential Parks Act 2007 (SA) s 116]. The hearings are informal and the parties can usually attend and represent their cases themselves. SACAT also has the power to issue a restraining order to a resident or their visitor, on an application by the park owner, if there is a risk of serious injury or damage occurring. Breaching this restraining order is an offence and attracts up to one year imprisonment.

See also 'RESOLVING TENANCY DISPUTES'.

    Residential Parks  :  Last Revised: Fri Dec 23rd 2016
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