{"id":2241,"date":"2021-03-10T00:59:49","date_gmt":"2021-03-10T00:59:49","guid":{"rendered":"https:\/\/kerinbensonlawyers.com.au\/resources\/?p=2241"},"modified":"2021-03-10T00:59:49","modified_gmt":"2021-03-10T00:59:49","slug":"are-age-restriction-rules-valid","status":"publish","type":"post","link":"https:\/\/kerinbensonlawyers.com.au\/resources\/are-age-restriction-rules-valid\/","title":{"rendered":"Are Age Restriction Rules Valid?"},"content":{"rendered":"

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 <\/em>[2020] NSWCATAP 284.<\/p>\n

The\u00a0case related to a dispute concerning a community rule which provided an age restriction as follows: \u201cThe age restriction for the community is that a person must be at least 55 years of age to occupy a residential\u00a0site. A homeowner must not allow a person to occupy a residential\u00a0site unless that person meets the age restriction.\u201d<\/p>\n

The\u00a0appellant, YBOS, is the operator of a caravan park\u00a0on which there are 66\u00a0sites\u00a0occupied by permanent residents as their principal place of\u00a0residence pursuant to\u00a0site agreements. The\u00a0respondent, Creek, is a resident\u00a0of one of the park\u2019s residential sites. The park is a residential community for the purposes of the Residential (Land Lease) Communities Act 2013<\/em> (NSW) (RC Act).<\/p>\n

The Tribunal at first instance ordered that the rule be set aside\u00a0under section 95(2)(a)\u00a0of the RC Act. The Tribunal found, among others, that:<\/p>\n

    \n
  1. the rule was not “clearly expressed” and as such did not comply with section 86(3) of the RC Act.<\/li>\n
  2. having regard to section 44(6) of the RC Act,\u00a0the legislature intended to allow operators\u00a0to make age restriction rules, however an exemption to make this rule was required from the President of the Anti-Discrimination Board\u00a0under section 126 of the\u00a0Age Discrimination Act 2004 <\/em>(ADA). As no exemption was obtained the rule was\u00a0not in line with the provisions of the ADA and had no effect\u00a0under section 87 of the RC Act.<\/li>\n<\/ol>\n

    On appeal, the Appeal Panel held that the rule was valid based on the following:<\/p>\n

      \n
    1. the rule was both fair and reasonable and clearly expressed as required by section 86 of the RC Act.<\/li>\n
    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.<\/li>\n
    3. As section 44(5) of the RC Act gives an automatic right of occupation to a homeowner\u2019s spouse, de facto partner, and carer without the need for an operator\u2019s consent, an \u201cadditional person\u201d could not include these category of persons but could include other additional persons.<\/li>\n
    4. Section 44(6) of the RC Act clearly shows Parliament\u2019s intention that a community age restriction rule could lawfully be made under the RC Act beyond the additional persons.<\/li>\n
    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.<\/li>\n
    6. the rule is not inconsistent if the rule itself is not in breach of the ADA.<\/li>\n<\/ol>\n

      Author: Jasmin H.Singh<\/p>\n","protected":false},"excerpt":{"rendered":"

      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\u00a0case related to a dispute concerning a community rule which provided an age restriction as follows: \u201cThe age restriction for the community is that a person must […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[64,25,67,34,186],"tags":[589,590,586,587,588],"class_list":["post-2241","post","type-post","status-publish","format-standard","hentry","category-case-review","category-legal-alert","category-news-and-publications","category-nsw","category-rules-act","tag-age-discrimination","tag-age-restriction","tag-age-restriction-rules","tag-community-association","tag-discrimination"],"_links":{"self":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/posts\/2241","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/comments?post=2241"}],"version-history":[{"count":1,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/posts\/2241\/revisions"}],"predecessor-version":[{"id":2242,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/posts\/2241\/revisions\/2242"}],"wp:attachment":[{"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/media?parent=2241"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/categories?post=2241"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/kerinbensonlawyers.com.au\/resources\/wp-json\/wp\/v2\/tags?post=2241"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}