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RESIDENTIAL TENANCIES AMENDMENT ACT 2010 (NO. 67 OF 2010) - SECT 22

New Division 3A of Part 6

At the end of Division 3 of Part 6 of the Principal Act insert

" Division 3A—Termination of site agreements in Part 4A parks
Subdivision 1—When can a site agreement be terminated?

        317A     Termination of site agreement

Despite any Act or law to the contrary, a site agreement does not terminate and must not be terminated except in accordance with this Division or Part 7 or 8.

        317B     Termination by agreement

A site agreement may be terminated by agreement of the site owner and site tenant.

        317C     Termination by consent

    (1)     A site agreement terminates if the site tenant vacates the Part 4A site with the consent of the site owner.

    (2)     The consent, once given, is irrevocable.

        317D     Termination after notice to vacate

A site agreement terminates if the site owner or the site tenant gives a notice to vacate or a notice of intention to vacate the Part 4A site under this Division and—

        (a)     the site tenant vacates the Part 4A site on or after the termination date specified in the notice; or

        (b)     the site agreement terminates in accordance with section 334.

        317E     Termination by abandonment

A site agreement terminates if the site tenant abandons the Part 4A site.

        317F     Termination if Part 4A site is sub-let

A site agreement terminates if—

        (a)     the site tenant is not in possession, occupation or use of the Part 4A site because the site tenant has sub-let it; and

        (b)     the site owner or site tenant gives a notice to vacate or a notice of intention to vacate the Part 4A site under this Division; and
s. 22

        (c)     the period (if any) between the date on which the notice is given and the termination date specified in the notice has expired.

        317G     Termination if site owner not owner of site

A site agreement terminates if the land owner gives a notice to vacate in accordance with section 317ZE and—

        (a)     the site tenant vacates the Part 4A site on or after the termination date specified in the notice; or

        (b)     the site agreement terminates in accordance with section 334.

        317H     Termination by merger

A site agreement may terminate by merger (that is, where the interests of the site owner and the site tenant become vested in one person).

        317I     Termination by disclaimer

A site agreement may terminate by disclaimer (for example, on repudiation of the agreement by the site tenant accepted by the site owner).

        317J     Termination by site tenant before occupation or use

A site agreement terminates if the site tenant has not entered into occupation or use of the Part 4A site and has given a notice of termination of the site agreement to the site owner on the ground that the Part 4A site—

        (a)     is unsafe; or

        (b)     is not legally available for use as a Part 4A site; or

        (c)     is for any other reason unavailable for occupation.
s. 22

        317K     Offences relating to interference with rights

    (1)     Except in accordance with this Act, a person must not require, compel or attempt to compel a site tenant to vacate a Part 4A site.

Penalty:     60 penalty units in the case of a natural person;

300 penalty units in the case of a body corporate.

    (2)     Except in accordance with this Act, a person must not exclude a site tenant or attempt to exclude a site tenant from, or restrict or attempt to restrict a site tenant's access to—

        (a)     a site tenant's Part 4A dwelling; or

        (b)     a Part 4A site on which the site tenant's Part 4A dwelling is situated; or

        (c)     the Part 4A park in which the site tenant's Part 4A dwelling is situated.

Penalty:     60 penalty units in the case of a natural person;

300 penalty units in the case of a body corporate.

    (3)     Except in accordance with this Act, a person must not interfere with the peace, comfort or privacy of a site tenant for the purposes of causing the site tenant to abandon the Part 4A site.

Penalty:     60 penalty units in the case of a natural person;

300 penalty units in the case of a body corporate.

    (4)     Except in accordance with this Act, a person must not, for the purposes of causing a site tenant to abandon a Part 4A site—
s. 22

        (a)     withdraw or restrict services or facilities which are reasonably required for the occupation of a Part 4A dwelling on a Part 4A site as a residence; or

        (b)     prevent the site tenant from using any facilities; or

        (c)     do any other act or thing intended or designed to cause the site tenant to abandon the Part 4A site.

Penalty:     60 penalty units in the case of a natural person;

300 penalty units in the case of a body corporate.

Subdivision 2—Variations or creations of site agreement

        317L     Creation of periodic site agreement

    (1)     A site tenant is taken to occupy a Part 4A site under a periodic site agreement if—

        (a)     the term of a fixed term site agreement to which this Act applies ends; and

        (b)     the site tenant under that agreement continues in occupation of the Part 4A site otherwise than as a site tenant under a fixed term site agreement.

    (2)     The rental period under the periodic site agreement created by subsection (1) is—

        (a)     if the rental period under the fixed term site agreement was more than one month, a monthly period; and

        (b)     if the rental period under the fixed term site agreement was one month or less, a period equivalent to that rental period.

    (3)     Except as provided in subsection (2), the periodic site agreement is on the same terms, so far as applicable, as the terms of the fixed term site agreement.

    (4)     On the application of the site owner or the site tenant, the Tribunal may make any variations to the terms of a periodic site agreement created under this section that are necessary for or appropriate to the continuation of a periodic site agreement.

        317M     Application for new site agreement because of final family violence intervention order

    (1)     This section applies if—

        (a)     a site tenant is excluded from a Part 4A dwelling on a Part 4A site under an exclusion condition included in a final order; and

        (b)     a protected person under the final order

              (i)     is also a party to the site agreement for the Part 4A site; or

              (ii)     is the owner or co-owner of the Part 4A dwelling at law or in equity.

    (2)     The protected person may apply to the Tribunal for an order—

        (a)     terminating the existing site agreement; and

        (b)     requiring the site owner of the Part 4A site to enter into a site agreement with the protected person and any other site tenant (other than the excluded site tenant) of the Part 4A site.

    (3)     For the purposes of proceedings in relation to an application for an order under subsection (2), each of the following persons is a party to the proceeding—

        (a)     the protected person;

        (b)     the site owner;

        (c)     the excluded site tenant;

        (d)     any other existing site tenants.

    (4)     In this section—

"final order" means a final order within the meaning of the Family Violence Protection Act 2008 .

        317N     Tribunal orders for application made under section 317M

    (1)     On an application under section 317M, the Tribunal may make an order terminating the existing site agreement and requiring the site owner to enter into a new site agreement with the protected person and other persons (if any) specified in the application if the Tribunal is satisfied that—

        (a)     the protected person and any other site tenants (other than the excluded site tenant) of the Part 4A site could reasonably be expected to comply with the duties of a site tenant under a site agreement to which this Act applies; and

        (b)     the protected person or the protected person's dependants would be likely to suffer severe hardship if the protected person were compelled to leave the Part 4A dwelling situated on the Part 4A site the subject of the site agreement; and

        (c)     the hardship suffered by the protected person would be greater than any hardship the site owner would suffer if the order were made; and

        (d)     it is reasonable to do so given the length of the exclusion under the final order and the length of the existing site agreement; and

        (e)     it is reasonable to do so given the interests of any other site tenants (other than the excluded site tenant) under the existing site agreement and, in particular, whether the other site tenants support the protected person's application.

    (2)     If the Tribunal makes an order under subsection (1) the new site agreement must—

        (a)     be subject to the same rent and frequency of rent payments as the existing site agreement; and

        (b)     if the existing site agreement is a fixed term agreement, run for a term not longer than the remainder of that fixed term; and
s. 22

        (c)     otherwise, be on the same terms and conditions as the existing site agreement, subject to any changes the Tribunal determines.

    (3)     If the Tribunal makes an order under subsection (1) the existing site agreement is terminated on the signing of the new site agreement.

        317O     Tribunal may determine parties' liability under terminated site agreement

    (1)     If the Tribunal makes an order under section 317N, the Tribunal may determine the liabilities of the excluded site tenant, the protected person or any other site tenants under the existing site agreement in relation to any existing liabilities under the existing site agreement, including but not limited to—

        (a)     liabilities relating to damage caused to the Part 4A site; and

        (b)     liabilities relating to outstanding utility charges.

    (2)     For the avoidance of doubt, the termination of a site agreement under section 317N does not of itself give rise to a right to claim compensation on the part of any party to the site agreement for early termination of the site agreement.

        317P     Cross-examination in proceedings for a new site agreement

    (1)     In a hearing for proceedings arising out of, or relating to, an application under section 317M(2) an excluded site tenant must not personally cross-examine a protected person without leave of the Tribunal.

    (2)     The Tribunal may grant leave under subsection (1) with or without conditions.

    (3)     If leave is granted under subsection (1), the excluded site tenant may only cross-examine the protected person—

        (a)     as to those matters set out in section 317N(1); and

        (b)     in accordance with any conditions to which the leave granted is subject.

        317Q     Reduction of fixed term site agreement

    (1)     On the application of a party to a fixed term site agreement, the Tribunal may make an order—

        (a)     reducing the term of the site agreement by a period stated in the order; and

        (b)     making any variations to the terms of the site agreement that are necessary because of the reduction of the term.

    (2)     The Tribunal may only make an order under this section if it is satisfied that, because of an unforeseen change in the applicant's circumstances, the severe hardship which the applicant would suffer if the term of the site agreement were not reduced would be greater than the hardship which the other party would suffer if the term were reduced.

    (3)     Without limiting subsection (2), the Tribunal may make an order under that subsection if satisfied that the applicant has experienced an unforeseen change in the applicant's circumstances that will cause the applicant to suffer severe hardship because—

        (a)     the applicant is a site tenant under the fixed term site agreement; and

        (b)     the applicant—

              (i)     is excluded from the Part 4A site the subject of the site agreement under a family violence intervention order; or

              (ii)     is a protected person under a family violence intervention order and is seeking to reduce the term of the agreement to protect the person's own safety or the safety of his or her dependants.

    (4)     In making an order under this section, the Tribunal may determine the compensation (if any) to be paid by the applicant for the order to the other party because of the reduction in the term of the site agreement.

Subdivision 3—Notice of intention to vacate or abandonment by site tenant

        317R     Notice of intention to vacate

    (1)     A site tenant may give a site owner a notice of intention to vacate a Part 4A site.

    (2)     The notice of intention to vacate must specify a termination date that is not less than 28 days after the date on which the notice of intention to vacate is given.

        317S     Notice to have no effect in certain circumstances

A notice of intention to vacate given under section 317R in respect of a fixed term site agreement is of no effect if it specifies a termination date that is earlier than the end of the term of the site agreement.

        317T     Reduced period of notice of intention to vacate in certain circumstances

    (1)     This section applies if—

        (a)     a site tenant has been given a notice to vacate under section 317ZF; or

        (b)     a site tenant requires special or personal care and needs to vacate the Part 4A site in order to obtain that care; or

        (c)     a site tenant has received a written offer of public housing from the Director of Housing; or

        (d)     a site tenant requires temporary crisis accommodation and needs to vacate the Part 4A site in order to obtain that accommodation.

    (2)     A site tenant to whom this section applies may give a site owner a notice of intention to vacate the Part 4A site under a fixed term site agreement specifying a termination date that is on or after the end of the term of the site agreement if the period between the date on which the notice is given and the termination date is not less than 14 days.

    (3)     A site tenant to whom this section applies may give a site owner a notice of intention to vacate a Part 4A site under a periodic site agreement specifying a termination date that is not less than 14 days after the date on which the notice is given.

    (4)     In this section "special or personal care" means—

        (a)     assistance with one or more of the following—

              (i)     bathing, showering or personal hygiene;

              (ii)     toileting;

              (iii)     dressing or undressing;

              (iv)     meals; or

        (b)     physical assistance for persons with mobility problems; or

        (c)     assistance for persons who are mobile but require some form of supervision or assistance; or

        (d)     assistance or supervision in dispensing medicine; or

        (e)     the provision of substantial emotional support in a health or residential service.

        317U     Failure of site owner to comply with Tribunal order

    (1)     A site tenant may give a site owner a notice of intention to vacate a Part 4A site if the site owner fails to comply with an order of the Tribunal under section 212.

    (2)     The notice of intention to vacate must specify a termination date that is not less than 14 days after the date on which the notice is given.

        317V     Successive breaches by site owner

    (1)     A site tenant under a fixed term site agreement may give a site owner a notice of intention to vacate a Part 4A site if—

        (a)     the site owner has breached a site owner's duty provision within the meaning of Part 5; and

        (b)     on 2 previous occasions the site owner has been in breach of the same site owner's duty provision; and

        (c)     the site tenant or the site tenant's agent has on each occasion given a breach of duty notice to the site owner under section 208.

    (2)     The notice of intention to vacate must specify a termination date that is not less than 14 days after the date on which the notice of intention to vacate is given.

        317W     Order of abandonment

    (1)     If a site owner believes that a site tenant has abandoned a Part 4A site, the site owner may apply to the Tribunal for an order declaring that the site tenant has abandoned the Part 4A site.

    (2)     An application under subsection (1) must be heard by the Tribunal within 5 business days after the application is made.

    (3)     On an application under subsection (1), the Tribunal may by order declare that the Part 4A site was abandoned by the site tenant on a day specified by the Tribunal.

    (4)     The site tenant is taken to have abandoned the Part 4A site on the day specified in the order.

Subdivision 4—Notice by site owner or mortgagee

        317X     Damage

    (1)     A site owner may give a site tenant a notice to vacate a Part 4A site if the site tenant or the site tenant's visitor intentionally or recklessly causes or allows serious damage to—

        (a)     the Part 4A site; or

        (b)     the Part 4A park; or

        (c)     any facility in the Part 4A park.

    (2)     The notice to vacate may require the site tenant to vacate the Part 4A site immediately.

        317Y     Danger

    (1)     A site owner may give a site tenant a notice to vacate a Part 4A site if the site tenant or the site tenant's visitor by act or omission causes a danger to any person or property in the Part 4A park.

    (2)     The notice to vacate may require the site tenant to vacate the Part 4A site immediately.

    (3)     A site owner is not entitled to give a notice to vacate under subsection (1) if a notice to leave under section 368 has been given in respect of that act or omission.

        317Z     Disruption

    (1)     A site owner may give a site tenant a notice to vacate a Part 4A site if the site tenant or the site tenant's visitor seriously interrupts the quiet and peaceful enjoyment of the Part 4A park by other occupiers.

    (2)     The notice to vacate may require the site tenant to vacate the Part 4A site immediately.

        317ZA     Failure to comply with Tribunal order

    (1)     A site owner may give a site tenant a notice to vacate a Part 4A site if the site tenant fails to comply with an order of the Tribunal under section 212.

    (2)     The notice must specify a termination date that is not less than 14 days after the date on which the notice to vacate is given.

        317ZB     Successive breaches by site tenant

    (1)     A site owner may give a site tenant a notice to vacate a Part 4A site if—

        (a)     the site tenant has breached a duty provision within the meaning of Part 5; and

        (b)     on 2 previous occasions the site tenant has been in breach of the same duty provision; and

        (c)     the site owner or the site owner's agent has on each occasion given a breach of duty notice to the site tenant under section 208.

    (2)     The notice must specify a termination date that is not less than 14 days after the date on which the notice is given.

        317ZC     Use of Part 4A site for illegal purpose

    (1)     A site owner may give a site tenant a notice to vacate a Part 4A site if the site tenant has used the Part 4A dwelling on the Part 4A site or permitted its use for any purpose that is illegal at common law or under an Act.

    (2)     The notice to vacate must specify a termination date that is not less than 14 days after the date on which the notice is given.

        317ZD     Assignment or sub-letting without consent

    (1)     A site owner may give a site tenant a notice to vacate a Part 4A site if the site tenant has assigned or sub-let or purported to assign or sub-let the whole or any part of the Part 4A site without the site owner's consent.

    (2)     The notice must specify a termination date that is not less than 14 days after the date on which the notice to vacate is given.

        317ZE     Notice by land owner

    (1)     If the site owner under a site agreement is not the owner of the Part 4A site, the owner may exercise a right of the site owner—

        (a)     to give the site tenant a notice to vacate the site; or

        (b)     to recover possession of the Part 4A site; or

        (c)     to give a breach of duty notice under Part 5 that applies to the site agreement.

    (2)     A notice to vacate given under subsection (1) does not have effect unless it specifies a termination date on or after the day on which the site owner's interest in the Part 4A site ends.

    (3)     If an owner exercises a right conferred by subsection (1) in relation to a site agreement, this Division, Part 5 and Part 7 have effect as if a reference to a site owner under a site agreement included a reference to the owner.

        317ZF     Notice under fixed term site agreement

    (1)     A site owner under a fixed term site agreement may, before the end of the term of the site agreement, give the site tenant a notice to vacate the Part 4A site at the end of the fixed term.

    (2)     The notice to vacate must specify a termination date that is on or after the date of the end of the term.

    (3)     The notice to vacate must specify a termination date that is not less than 365 days after the date on which the notice to vacate is given.

        317ZG     Notice under periodic site agreement

    (1)     A site owner under a periodic site agreement may give the site tenant a notice to vacate the Part 4A site.

    (2)     The notice to vacate must specify a termination date that is not less than 365 days after the date on which the notice to vacate is given.

        317ZH     Notice of no effect

    (1)     A notice to vacate under section 317ZF is of no effect if it was given in response to the exercise, or proposed exercise, by the site tenant of a right under this Act or the site agreement.

    (2)     A person is not entitled to apply to the Tribunal challenging the validity of a notice to vacate under subsection (1) after the end of 60 days after the date on which the notice to vacate is given.

        317ZI     Notice by mortgagee of Part 4A park

    (1)     A mortgagee of a Part 4A park may give a site tenant a notice to vacate a Part 4A site if the mortgagee becomes entitled to possession of, or to exercise a power of sale in respect of, the Part 4A park under a mortgage.

    (2)     The notice to vacate must specify a termination date that is—

        (a)     on or after the date of the end of the fixed term and not less than 365 days from the date of the notice to vacate, if the site agreement is a fixed term site agreement that was entered into—

              (i)     before the mortgage was granted in respect of the Part 4A park; or

              (ii)     after the mortgage was granted in respect of the Part 4A park and is consistent with the terms of the mortgage agreement; or

        (b)     not less than 365 days from the date of the notice to vacate, if the site agreement is a periodic site agreement that commenced—

              (i)     before the mortgage was granted in respect of the Part 4A park; or

              (ii)     after the mortgage was granted in respect of the Part 4A park and is consistent with the terms of the mortgage agreement; or

        (c)     not less than 90 days from the date of the notice to vacate, if the site agreement

              (i)     was entered into after the mortgage was granted in respect of the Part 4A park; and

              (ii)     is inconsistent with the terms of the mortgage agreement.".



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