NSW: Are Age Restriction Rules Valid?

This article about age restriction rules in strata has been supplied by Jasmin H.Singh, Kerin Benson Lawyers.

This was one of the questions before the Appeal Panel in the case of YBOS Pty Ltd t/as BIG4 Tweed Billabong Holiday Park v Creek [2020] NSWCATAP 284.

The case related to a dispute concerning a community rule which provided an age restriction as follows: “The age restriction for the community is that a person must be at least 55 years of age to occupy a residential site. A homeowner must not allow a person to occupy a residential site unless that person meets the age restriction.”

The appellant, YBOS, is the operator of a caravan park on which there are 66 sites occupied by permanent residents as their principal place of residence pursuant to site agreements. The respondent, Creek, is a resident of one of the park’s residential sites. The park is a residential community for the purposes of the Residential (Land Lease) Communities Act 2013 (NSW) (RC Act).

The Tribunal at first instance ordered that the rule be set aside under section 95(2)(a) of the RC Act. The Tribunal found, among others, that:

1. the rule was not “clearly expressed” and as such did not comply with section 86(3) of the RC Act.
2. having regard to section 44(6) of the RC Act, the legislature intended to allow operators to make age restriction rules, however an exemption to make this rule was required from the President of the Anti-Discrimination Board under section 126 of the Age Discrimination Act 2004 (ADA). As no exemption was obtained the rule was not in line with the provisions of the ADA and had no effect under section 87 of the RC Act.

On appeal, the Appeal Panel held that the rule was valid based on the following:

1. the rule was both fair and reasonable and clearly expressed as required by section 86 of the RC Act.
2. the language of section 44(6) of the RC Act indicates that the community rules may set out age restrictions for occupancy, however this is subject to section 44(5) of the RC Act.
3. As section 44(5) of the RC Act gives an automatic right of occupation to a homeowner’s spouse, de facto partner, and carer without the need for an operator’s consent, an “additional person” could not include these category of persons but could include other additional persons.
4. Section 44(6) of the RC Act clearly shows Parliament’s intention that a community age restriction rule could lawfully be made under the RC Act beyond the additional persons.
5. Section 44(6) of the RC Act does not suggest that an exemption for any age restrictions would be necessary under s 56 of the ADA and the operation and purpose of the RC Act suggests that it is not necessary.
6. the rule is not inconsistent if the rule itself is not in breach of the ADA.

Please note: This is general information and should not be considered to be legal advice. If you are affected you should obtain legal advice specific to your individual situation.

Jasmin H.Singh
Kerin Benson Lawyers
E: [email protected]
P: 02 4032 7990

This post appears in Strata News #478.

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This article has been republished with permission from the author and first appeared on the Thoughts from a Strata Lawyer website.

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