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Sale of homes 

Home owners in a land lease community have a right to sell their home on site, and have certain rights to market it to prospective buyers. Operators must avoid actions that could compromise the sale.   

Who has a right to sell? 

All current home owners in any land lease community have the right under the law to sell their home on site. If they move out but still own a home, this right of sale continues. If a home owner passes away, the right of sale on site can be exercised by their executor, administrator or a beneficiary of the estate. You cannot limit or restrict this right or put terms in a site agreement or require a home owner in any other way to remove the home from the site. Any terms of a site agreement which seek to limit or restrict the right of sale on site are no longer enforceable (from when the new laws for land lease communities started on 1 November 2015).

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What are the home owner’s obligations when selling? 

When selling a home on site, the home owner must:

  • inform you before they advertise or offer in any other way that the home is for sale
  • refer any genuine prospective buyers to you before selling the home to enable you to meet your disclosure obligations under the law.

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Can the home owner put up a 'For Sale' sign? 

Once a home owner has told you that they intend to sell the home, they can place a 'For Sale' sign in or on the home. The sign can be in the window or attached to the outside of the home, but not on the residential site itself (for example, the lawn area). If the home owner wants to place a 'For Sale' sign anywhere else in the community, they must first get your permission.

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Can a home owner appoint an agent to help sell the home? 

Yes. The home owner can appoint an agent to sell their home. You cannot require them to appoint any person, including yourself, as their agent.

If the home owner appoints an external selling agent, you cannot hinder that person in carrying out their duties (for example, by unreasonably restricting access to the community).

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What is a selling agency agreement? 

If the home owner appoints an agent (including you) to sell the home, a selling agency agreement will need to be signed. The agreement must be in writing and ideally be in place before the home is marketed. It sets out the services that the agent will perform as well as any charges, expenses and commission which may be payable in exchange for those services. Any disputes over the payment of these amounts can be taken to the NSW Civil and Administrative Tribunal (the Tribunal).

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How much commission can an agent charge? 

The law does not regulate the level of commission an agent can charge for selling a home in a land lease community. The level of commission is negotiable. It must be set out in the selling agency agreement (see above). If you are acting as a selling agent the level of commission should be within the range of commission charged by local real estate agents for selling a regular home.

No sale commission is payable if:

  • a home is not sold
  • the services provided by the selling agent are not the effective cause of the sale
  • the operator, or a close associate of the operator, is buying the home.

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What obligation do I have when a home is being sold onsite? 

You must not interfere with a home owner’s right to sell their home on site or their right to display a 'For Sale' sign.

Examples of interference with a sale by an operator may include:

  • unreasonably restricting prospective buyers from having access to inspect the home or the community
  • unreasonably hindering an agent from having access to the community
  • making false or misleading statements about the community to the prospective buyer
  • taking any action to require compliance with any requirement under the Local Government Act 1993 after becoming aware that a home owner intends to sell their home
  • unreasonably delaying or refusing to enter into a site agreement with the person who intends to buy the home
  • insisting that the buyer agree to a voluntary sharing arrangement
  • attempting to charge the buyer a higher site fee than the current home owner is paying, or the site fees currently payable for sites of a similar size and location within the community.

If a home owner loses a potential buyer or suffers a financial loss due to interference they may be able to seek compensation through the Tribunal.

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Can I buy a home from a home owner? 

Yes, you can offer to buy a home at an agreed price.

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Can a home owner assign the site agreement as part of the sale? 

In most cases the buyer and you will choose to enter into a new site agreement. This ensures that the new home owner has an up to date agreement in his or her name.

A home owner can only assign (transfer) their site agreement with your consent. It is entirely your choice whether to allow the site agreement to be transferred.

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What can I do if there is a dispute? 

To see if the dispute can be resolved informally through mediation, contact NSW Fair Trading on 13 32 20. You can also apply to the Tribunal about any dispute relating to the sale of a home on site. For more information visit the Tribunal’s website.

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