Some background
Residential leases and tenancies in Western Australia are largely governed by statute.
Basically, this means that the rules are set out in a series of written laws. They consist of legislation, regulations and rules of procedure.
It would be nice to think that those rules can be simply determined by reading one book. That book would contain all of the written laws together in a single document.
Unfortunately, the reality is that the written laws are constantly changing. Acts are amended from time to time. Regulations are often updated, and cases are being determined by the Courts and Tribunals (almost on a daily basis).
The Internet has helped to provide access to the growing volumes of the 'Book'. But it has also significantly increased the number of 'pages' of the book which need to be read and understood.
The written rules also substantially vary in their application to different types of leases and tenancies. For example, there are different sets of legislation for such types as:
- residential tenancies;
- retail shop tenancies; and
- agricultural tenancies.
The specific question posed in this blog article is whether the residential tenancies legislation is applicable to leases or tenancies in caravan parks?
The short answer is No.
Some differences between the 2 sets of laws
The laws governing the treatment and application of leases and tenancies in caravan parks are separate and distinct from the rules which apply to other residential tenancies in Western Australia.
The latter is largely governed by the Residential Tenancies Act and Regulations.
In the case of caravan parks, however, the primary legislation is contained in the Residential Parks (Long Stay-Tenants) Act ('Residential Parks Act’) and its Regulations.
(A list of other written laws which also relate to the operation of caravan parks is collected in the first blog in this series).
There are certainly similarities between the two different sets of written laws. Leases are distinguished from tenancies because they usually consist of a fixed term of occupation, say a 6 month or a 1 year term. Once that term expires, the lease automatically comes to an end.
On the other hand, tenancies refer to cyclical periods of occupation, which are repeated on the basis of the rent period. (As a result, they are often referred to as periodic tenancies).
So, a weekly tenancy would be based upon a weekly rent being payable. A monthly tenancy would be based upon a monthly rent being payable (usually in advance, at the beginning of each month of occupancy). In the case of a yearly tenancy, the rent would be payable in respect of each annual period.
Tenancies do not automatically come to an end (like leases do). The term of occupation can continue as long as the rent is being paid on time.
These distinctions are maintained in the legislation governing caravan parks. However, when defining the 'landlord' and 'tenant' in a leasehold relationship in a caravan park, the differences start to show.
The role of the landlord is usually taken up by the caravan park operator. Under the written laws, they have the legal power to grant leases of caravan sites (located within the park's grounds) to tenants in WA.
The tenants at caravan parks can be:
- campers and short stay tenants at designated sites in the park; or
- occupants of caravans and park homes owned by the Park;
- occupants of designated sites at the park (who have placed their own caravan or park home on the site ).
Long-stay agreements
As we noted earlier, the Residential Parks Act generally applies to all caravan parks in WA.
The aim of that written law is to provide a number of protections for the security of tenure of long-stay tenants at caravan parks and grounds.
A person is classified as such a tenant if the agreement which they have with the park operator is a 'long-stay agreement.'
The key theme of the Residential Parks Act itself is the meaning and effect of a 'long-stay agreement'. Most rights and protections under that Act are only available to tenants who have entered into that type of agreement. (If not, the rights of a tenant remaining in occupation at the park are quite limited).
Whether a tenant at a particular caravan park or ground has entered into a long-stay agreement is determined by the following factors:
- whether the caravan site is located in a licensed caravan park or ground;
- whether the caravan or park home located at the site is the tenant’s principal place of residence;
- whether the occupation is a form of lease or tenancy;
- whether the tenant is paying rent for the right to occupy the site;
- whether the occupation of the site has been agreed for a period that is capable of exceeding a three month period (or has already exceeded that period); and
- whether the agreement is excluded from being defined as a long-stay agreement (for example, because it was only rented for a holiday stay).
Epilogue
In future blogs in this series, we will discuss different aspects of the rights and duties of long-stay tenants when questions are raised about:
- terms which are incorporated in their leases or tenancies;
- differences between the rights which apply to their leases or tenancies;
- liabilities in relation to the payment of rent or outgoings;
- the right to a renewal of the term of their occupancy; and
- the means by which they can be evicted from their site.
Contact Us
If the issues discussed in this blog are relevant to you and/or you require legal assistance, you can contact Tony or Andrew at Irwin Legal on admin@aristei.com.au or by contacting 08 92218337.
About the Author
Anthony J Aristei ('Tony') was admitted to legal practice in Western Australia in 1985, and admitted as an independent barrister in 1996. With some 40 years of legal experience, he has represented clients in over a thousand cases, including numerous high-profile matters reported in a number of law reports such as the Western Australian Law Reports, State Reports and various Federal Reports.
Tony is an accomplished legal writer, having authored the Nutshell students' text on real property law and annotated commentaries on retail shops legislation in Western Australia. He has also written various Law Society of Western Australia and LexisNexis seminar papers on property, equity, and trusts law. Additionally, he previously served as the President of the Anglo-Australasian Lawyers Society in Western Australia. (The Society fosters professional relations between legal communities in Australia, New Zealand, and the UK).