In a previous article I discussed the importance of the residence rules (“Retirement Village Residence Rules – What You Should Know“). I’d now like to discuss what happens in the situation where there has been a breach of the residence rules but the breach is allowed to continue – where enforcing the rights of retirement village residents becomes necessary.
Take, for example, the situation where a retirement village is positioned in a beautiful, semi rural area far from the noise of traffic and industry. The quiet surroundings are a major attraction for many prospective residents and, in keeping with the ambience of the surroundings, the residence rules clearly state that pets are not allowed. One of the residents, Colin, keeps a small, yappy dog (coincidentally named “Yappy”) in his unit. This is a source of annoyance for Colin’s next door neighbour, Peter. The dog barks day and night and Peter is at his wit’s end. Peter politely reminds Colin that pets are not allowed in the village and that the dog will need to find another home. Nothing happens. Colin makes no attempt to find another home for his dog. Peter is becoming increasingly frustrated with Colin’s blatant flouting of the rules.
Peter approaches the manager of the village to discuss the issue and is given a good hearing. The manager assures Peter that Colin will be firmly reminded that pets are not allowed in the village.
The manager tells Colin that he cannot keep pets in the village and the dog must be removed by the end of the week. Several weeks go by and nothing has happened.
Peter knows that Colin is in the wrong. Clause 2(d) of the Retirement Villages Regulations 2017 (“Regulations“) states that the residents must comply with the residence rules. Schedule 1, clause 1(e) of the Regulations places the onus on the retirement village operator to take reasonable steps to ensure that residents comply with the residence rules.
Peter raises his complaint with the village’s residents committee and they, in turn, raise the issue with the operator. Still nothing happens. The residents committee can then utilise the dispute resolution policy in the contract to try and resolve the issue. If the matter cannot be resolved the residents committee can apply to the South Australian Civil and Administrative Tribunal to have the matter heard and adjudicated. This course of action is only available for disputes between residents and operators. More information on this course of action can be found in the article “Retirement Village Disputes“.
Disputes between residents
Peter still has existing legal rights. His legal rights are not abrogated because he is a resident in a retirement village where the residence rules and Code of Conduct set the standard of behaviour for residents and the operator. Depending on the nature of the breach there may be legislation available which will assist a resident.
In the yappy dog scenario Peter can rely on the Dog and Cat Management Act 1995. Under Section 45A(5) of that Act a person is guilty of an offence if his or her dog creates a noise, barking or otherwise, which persistently occurs and unreasonably interferes with the peace, comfort or convenience of a person. The local council has the authority to administer and enforce the provisions of the Act.
Peter may elect to advise the local council of the problems with Colin’s dog. Before doing so Peter should keep a comprehensive record of the dates and times of the barking. This record will be very useful for the council’s investigating officer. If Colin is found to be guilty of an offence he will be liable for a substantial fine. If the matter proceeds to a court hearing the court can make orders to destroy or detain the dog.
Alternatively, Peter could commence an action in the Magistrates Court seeking damages or an injunction. The constant barking could constitute a nuisance and the Court is able to make orders to prevent the nuisance from continuing. The Court may order Colin to find a new home for his dog or take such other action necessary to eliminate the nuisance.
If commencing an action in the Magistrates Court Peter needs to be aware that there will inevitably be delays in allowing the defendant, in this case Colin, to file a defence. If a defence is filed the Court will encourage the parties to settle the matter without having to schedule a hearing. If the matter cannot be resolved between the parties it could be several months before the hearing date. To intervene in a nuisance case, the Court would have to conclude, after receiving evidence, that Yappy posed a substantial and unreasonable nuisance that interfered with Peter’s beneficial use and enjoyment of his property – in other words, his comfort, convenience and other sensibilities.
What’s the best solution?
The simplest solution is for the retirement village operator to step in and ensure that all residents comply with the residence rules. In most cases this is what happens. It is in the interests of the operator to have a happy and harmonious village. Residents that are unhappy with the operator’s management of the village will want to terminate their contracts and the operator will have numerous vacant units that need to be “sold” to ensure the long-term viability of the village. Word will also spread about the mismanagement of the village and the operator will find it increasingly difficult to find new residents.
A resident has legal rights in relation to a persistent breach of the resident rules that can be exercised where the operator fails to enforce them. Legal advice should be obtained to determine the best course of action given the circumstances of the breach.
For further information please contact Jason Meyer on 8362 6400 or email Jason Meyer. Join our mailing list to receive updates and advice on current issues.