Negotiating with your Park manager while social distancing
Caxton Legal Centre’s QRVPAS team have noticed that some manufactured home owners are finding it harder to advocate for their rights, because of the communication barriers that come with COVID-19 restrictions.
For people living in manufactured home parks, you may have experienced difficulties getting in contact with your park manager because of COVID-19. This could be the case if the manager or other staff have been working from home, or the front office is operating at reduced hours.
In addition, for people who are at higher risk of developing COVID-19 (such as older people or those with weakened immune systems), you may be taking extra precautions to self-isolate, and this could make it harder for you to approach the park manager about any issues.
Sometimes groups of residents may want to get together and discuss problems that are affecting everyone living in the park (e.g. if they wish to dispute a fee increase) – but are unable to do so because of COVID-19 limits on gatherings.
These communication barriers are even more significant for people who don’t have access to the internet, or the ability to use email or video-chat software.
While we are now seeing a gradual relaxing of COVID-19 restrictions, it will take a long time for our lifestyles to return to normal.
This means that home owners will need to adapt to the “new normal” and find ways to communicate with their park manager about any issues that are affecting their living situation.
What are my rights?
If you are a manufactured home owner living in a residential park (over 50’s resort), your rights and obligations are governed by the Manufactured Homes (Residential Parks) Act 2003 (Qld) (the Act) and the terms of your site agreement/park rules.
Contacting the park owner
Importantly, section 17(c) of the Act states that the park owner has the responsibility:
to ensure the times the park owner or park manager is available to be contacted by the home owner or the home owner’s tenant are reasonable, having regard to all the circumstances, including the utilities supplied by the park owner to the site.
This means that, regardless of COVID-19 restrictions, the park owner should ensure that they are reasonably available to be contacted (although they may not be present at the office, they should still be available by phone and email during regular office hours).
If you write to the park owner about any issues at the park, section 104(f) of the Act states that they must provide you with a complete response in writing within 21 days.
However, if the park owner has already provided you with a written response about the issue in the past, they do not have to continue corresponding with you about that issue.
If you continue to experience problems with the park and want to formally raise a dispute with management, the Act creates a 3-step dispute resolution process that you need to follow.
The following is a brief overview of that process:
Step 1 – preliminary negotiation: write to the manager setting out the issues in dispute, and nominating a time/place to meet and discuss the matter (you need to give them at least 2 weeks’ notice of your nominated date for the meeting). You must then try and meet with them for the negotiation.
Step 2 – mediation: if you are unable to reach an agreement at the preliminary negotiation stage, you can apply to QCAT for a mediation of your dispute.
Step 3 – QCAT hearing: if you are unable to resolve your matter at mediation, you can apply to QCAT for a hearing where a QCAT member will make a decision about the issues in dispute.
Read our “Dispute Resolution” fact sheet for a detailed guide to navigating these processes.
Importantly, you aren’t allowed to skip any of these steps before you can progress to the next stage.
At present, we understand that many home owners are having difficulty getting past step 1 (preliminary negotiation) because they are unable to physically meet with the manager.
Do we really have to meet in person for dispute resolution?
In short, no.
While the Act says that you should nominate a place to meet and discuss the issues (and ideally that meeting would take place at the park), this doesn’t mean you have to physically meet to discuss the issues.
Given the current concerns with COVID-19, we think it is entirely appropriate for these “meetings” to take place virtually – whether that is by a telephone conversation or video-chat (using apps like Skype or Zoom).
Importantly, the Act says that you can progress to step 2 (mediation) once you have “attempted” step 1.
If you are unable to meet in person but still try and organise a telephone conference or video-chat, this should be enough to show that you have “attempted” to engage in step 1.
Even some court and QCAT proceedings at the moment are using teleconferences or video-conferences, rather than requiring people to attend in-person.
What about “consultation” for market rent review?
If the park owner wishes to implement a market rent review, they must first consult with the home owners committee (or, if no committee exists, they must consult with some of the home owners). This consultation must be done at least 63 days before the day any market rent increase is imposed.
This requirement is set out under section 69D of the Act.
Section 69D doesn’t explain what this “consultation” should look like. It simply states that the consultation must be done by either the park owner, or a registered valuer who they appoint.
In the recent case of Wain & Anor v Walter Elliott Holdings Pty Ltd trading as Palm Lakes Resort Pty Ltd  QCAT 175 QCAT considered whether the park and its appointed valuer had properly followed the market rent review process. In that case, the home owners committee raised a number of concerns about the valuation process – including that the park had failed to comply with its obligation to consult under section 69D because:
· the valuer met with the home owners committee on 26 March 2019;
· the valuer then received a written submission from the home owners committee on 30 March 2019; and
· the valuation report was issued on 9 April 2019 – but the report was backdated to 26 March 2019 (suggesting that it had been prepared before the home owners committee’s written submission was received).
While QCAT did not directly discuss whether this “consultation” was adequate for the purposes of section 69D, they ultimately found that there was nothing in the basis or methodology adopted by the valuer which was unreasonable.
This decision suggests that, so long as the valuer has met with the home owners committee to discuss the valuation and given them the opportunity to make submissions in response, that is sufficient to meet the requirements of section 69D. There is nothing in that decision which suggests that the meeting has to take place in person.
Again, given the current concerns with COVID-19, it is understandable that a park owner or their appointed valuer would not want to ask the home owners committee to meet in person for the purposes of this consultation.
In that case, it may be appropriate to make alternative arrangements for the consultation meeting to take place virtually – whether that is by a telephone conference call or video-chat (using apps like Skype or Zoom). The consultation may even be able to be undertaken by way of email or written correspondence, provided that the home owners committee is given a reasonable period of time to make submissions in response. For more information, please see our fact sheet about disputing Market Reviews.
Watch this space: the Queensland government is currently considering whether a freeze will be imposed on any market rent reviews that have not already been implemented in 2020, because of the difficulties that may arise with the consultation process.
If you have recently received notice of a market rent review, you should seek legal advice to find out if the market rent review “freeze” will apply in your case.
I’m trying to represent a large group of home owners in negotiations with management – how can I meet with everyone when we aren’t allowed to gather in one place?
You may want to consider whether it is feasible to hold a virtual meeting – either by telephone conference or using video-chatting technology. This may only be a practical option if you have a smaller group.
For very large groups, you could perhaps consider sending out a survey by email or using programs like Google Forms or SurveyMonkey.
The difficulty with all of these options is that you may unintentionally exclude people who do not have internet access or the computer skills necessary to use these programs.
Another option could be to do a “mailbox drop” using printed survey forms, and ask residents to return the completed survey within a certain timeframe. Before doing so, you should check your site agreement and any park rules to make sure this is allowed.
Of course you should also practise good hygiene if sending out communications to other residents (e.g. proper hand washing before and after handling any survey forms).
Where can I get advice?
Caxton’s Queensland Retirement Village and Park Advice Service (QRVPAS) provides free legal advice to manufactured home owners in Queensland, and can assist you to navigate the dispute resolution process.
To make an appointment with QRVPAS, please contact our reception on (07) 3214 6333.
For more information about this service please see our website at https://caxton.org.au/how-we-can-help/qrvpas/.
Overcoming technology barriers
For those who may struggle to use email or video-chat technology, there are a range of government initiatives that are aimed at helping seniors to improve their computer skills. For more information about services that are available, please see the Queensland Government website.
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