Getting Your Notices Right – When Near Enough is Not Good Enough


Two cases heard in the SAT in 2015 highlighted the need for any notice issued under the Residential Parks (Long Stay Tenants) Act 2006 (the Act) to be drafted in accordance with the Act and to contain accurate information.

The first case Broadview Nominees Pty Ltd and Whalley [2015] WASAT 75 considered an application for termination of a long stay agreement for breach of the agreement. There was no detailed written agreement in place and the tenant was only deemed a long stay tenant as he had resided for greater than ninety days in the Park.

Two problems arose for the Operator. The first was the lack of a written agreement which meant it was difficult to identify what the tenant was in breach of (a provision which was in the Park’s standard agreement for relocation within the Park was relied on for the default).  The second was the lapse in time between issuing a notice to remedy the breach and the issue of the termination notice was only twelve days.

The operator lost on both issues. The Tribunal found that the operator failed to give the tenant the default notice at least fourteen days prior to the date specified in the default notice as the date on or before which the breach must be remedied. This error meant both the default notice and the termination notice did not comply with the Act and could not support an application to terminate.

The Tribunal also found in any event that the tenant did not breach the long stay agreement as the tenant had not agreed to the term relied on in the notice. The Tribunal also considered the s68(4)(a) requirement that the breach has to be in all the circumstances such as to justify terminating the agreement, and found that in this particular case it would not have considered a refusal to move to another site to be sufficient breach to justify terminating the long-stay agreement in any event.

The second case Rockingham Holiday Village and Cracknell [2015] WASAT 32 involved an even simpler error, a failure to specify the correct amount of rent in arrears at the date of the default notice. The terms of the long stay agreement were not in dispute, nor was there a dispute that there was rent in arrears when the notice was issued.  The issue to be decided was how much was owed.  It was conceded that the incorrect amount of rent had been claimed in the default notice.  The error meant that both the default notice and the termination notice were defective and could not be relied on to terminate or obtain vacant possession.

Summary

The critical problem is that SAT only has power under s68 to order termination of an agreement and vacant possession if pursuant to s68(1)(a) a park operator has given a notice of termination to a long-stay tenant.   If the termination notice is defective in any material way then SAT has no power.

For more information about this Update or any Local Government issue please contact Greg Mohen and Ann Spencer on (08) 9321 3755.  .

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.