Yesterday, the Governor in Council made the new Manufactured Homes (Residential Parks) Regulation 2017 (Qld).
Section 3 of the new regulations is a significant change because it sets out 19 categories of special terms that are “prohibited special terms” for the purposes of section 25B of the Manufactured Homes (Residential Parks) Act 2003 (Qld) (Act). Previously, the Regulation did not specify any prohibited special terms. These categories are set out in full below:
(a) calculate site rent increases in a misleading way; or
Example - a special term that states that a rental increase is calculated in accordance with the consumer price index, but the rental increase includes an additional charge
(b) require a home owner to pay other charges but does not fully explain the charges; or
(c) require a home owner to gain the consent of the park owner before the home owner complies with a requirement under law; or
(d) state that if the seller assigns the seller’s interest in a site agreement to a buyer, the site agreement between the seller and the park owner does not end until the buyer enters into a site agreement with the park owner; or
(e) require the home owner to give a current building inspection certificate to the park owner; or
(f) restrict or prohibit an alteration to the home that is not visible from the outside of the home; or
(g) allow the park owner to consent to the alteration to the exterior of a home or addition to the home in a way that is contrary to section 98 of the Act; or
(h) require the home owner to indemnify the park owner and the park owner’s employees, contractors or agents for loss that was not caused by the home owner, a guest of a home owner, or a home owner’s contractors or agents; or
(i) give the park owner either of the following rights, however described—
(i) a right to buy a home before another person may be offered the home;
(ii) a right to make a final offer to buy a home after all other offers have been made to buy the home; or
(j) state site rent will not be reduced if there is a decrease or reduction in the standards, amenity or community facilities or services, including if—
(i) there is a decrease in amenity or standard of the residential park’s common areas and communal facilities mentioned in section 72(1)(a) of the Act; or
(ii) a communal facility or services mentioned in section 72(1)(b) of the Act has been withdrawn; or
(iii) a communal facility or services mentioned in section 72(1)(c) of the Act has not been provided; or
(k) state that the park owner does not warrant that the site is suitable for use as the site of a manufactured home; or
(l) state that the park owner may exclude a person from the residential park without having reasonable grounds for the exclusion; or
(m) appoint, or require the home owner to appoint, the park owner as an attorney for the home owner; or
(n) state that the seller is liable for the actions of a buyer after the seller assigns the seller’s interest to the buyer; or
(o) state that referring to the site agreement is a sufficient way to explain how an increase in site rent is calculated for the Act; or
(p) purport to exclude legislation from affecting the site agreement, unless the legislation provides that it may be excluded; or
(q) impose a monetary penalty on a home owner if the home owner breaches the site agreement; or
(r) remove a park owner’s liability for negligence or a breach of a contractual duty of care if the negligence or breach is caused by an act or omission of the park owner or the park owner’s employees, contractors or agents; or
(s) prohibit or prevent the park owner from reducing the site rent for any reason.
Section 3 of the Regulation will commence on 1 October 2017.
Park owners will therefore need to review their existing site agreements to ensure that such terms (if they exist) are not attempted to be enforced, as well as review their new site agreements to ensure site agreements that include such terms are not entered into. Doing either of these things is an offence under Section 25B of the Act.
To clarify, the new Regulation is not part of the Housing Legislation (Building Better Futures) Bill 2017 which is currently before the Queensland Parliament’s Public Works and Utilities Committee for detailed consideration. The new Regulation has legal effect and will commence as per the above regardless of the outcome with respect to the Bill.
For more information or discussion, please contact Partner, Anthony Pitt or Special Counsel, Hayley Harvey.