Post on 21-May-2018
VicParks Bulletin Board Length of Annual agreement Posted By: (REMOVED)
Hi all, How is everyone dealing with the new Annual agreement. The fact that it is 10 pages long and needs to be printed off every year of renewal. For us that means 48 Annuals, seems to be an awful lot of paper for something that most people don't take much notice of, except when something goes wrong! I would welcome any suggestions of how to go about minimising this process, but still fulfilling our obligations.
Regards (REMOVED)
“Bloody Annuals……….” They think they own the place
They do what they like
Their visitors cause me grief
They don’t pay enough for the privilege
They are slow payers
Always chasing them for money……
They don’t have any legal rights
“It’s my way or the highway….”
What is the real problem? The Annuals?….or our unprofessional business
management ?
“Annuals have no legal rights…” Australian Consumer Law - 1 Jan 2011
Tribunal can determine unfair contract provisions
Tribunal can determine unconscionable conduct
Tribunal can make certain orders
Tribunal can impose penalties - Damages
But we’ve never had to worry about their rights…….
Competition & Consumer Act 2010 (Cmlth)
Aust Consumer Law & Fair Trading Act (Victoria) 2012
Consumer can commence proceedings…
CAV can commence proceedings….
ACCC can commence proceedings…..
Case Study Pelican Shores Holiday Park - 2004
Gave an Annual 2 years Notice of Eviction
Occupied site for 28 + years
Annual contended the issue of a municipal building permit 25 years PRIOR – 2 owners previously, amounted to an “occupancy right”
Park relied on 4 previous signed Annual Agreements to prove Annual distinct and severable agreement with a start/end date
Outcome Listed in the Supreme Court of Victoria
8 months of sleepless nights
Death threats, Vandalism, P & E Damaged
Wife hated me, Kids hated me
We won…..relying on the terms of the Annual Agreements…with a settlement
I Won…… I felt like a Winner!!! Cost $60K in legal fees
Cost $40K to buy the Annual Out as part of the settlement
Cost to the Park business - $100,000 for a $3K Annual Site Return
A more recent matter? Tomasevic –v- Simmscorp (VCAT 2011)
Listed in Residential Tenancies List
Parties did not have industry advocacy
Listed in WRONG LEGAL JURISDICTION
Tomasevic argued he was a “permanent”
Respondent argued he was an Annual because he paid Annual Fees……
No Annual Holiday Agreement in place
VCAT Held In the absence of any formal agreements, a common
law lease held to apply to the site occupied by Tomasevic.
Lease gives exclusive rights to the occupier to the exclusion of all others…..including the park operator
Park could not evict him for a period of 12 months
Hadn’t paid fees to the park since 2010.
Tomasevic v Simmscorp Issued Proceedings in VCAT in 2015/2016
Three separate VCAT hearings…..
Appealed to Supreme Court on 2 occasions from VCAT
Escalated into Criminal Proceedings
Further Appeals to Supreme Court of Appeal
GONE….After 6 years!!!!!
How to protect your business You MUST provide to every Annual - 4 specific
documents EVERY year – VicParks Annual Holiday Agreement
Disclosure Document
Annuals Agreement
Park Rules
Schedule
Templates
Range of Templates available on the VicParks Website
Part 4, Part4A, Annuals, Model Rules etc
Download and compile
Insert your park details on Word docs but do not change, edit or add your own clauses to the PDF’s
VicParks will support you in any dispute where you have used the VicParks documents without alteration & the VicParks documentation is at the centre of the dispute.
Change the documents, you are on your own!
Disclosure Document Outlines essential terms and conditions
Summarises Annual Agreement
Summarises Park Rules
Answers Frequently Asked Questions
Highlights “the small print”
Includes Schedule covering Electricity Fees, Visitors, Insurance, Selling on Site, etc
Annual Agreement Use the recognised industry agreement
Implies standard industry practise in any dispute
Use VicParks Agreement – expect VicParks Support in a dispute
Edit or Amend at YOUR OWN PERIL
If you use your own agreement or operate without an agreement – you WILL NOT be supported by VicParks.
Good luck………for the future!
Park Rules s185 Residential Tenancies Act –whether annuals,
tourist or residential park
Provide copy of your Park Rules
Negates “ignorance” excuse
Use for Minor Breaches
Model Rules on VicParks website
Schedule Sets out your Fees and Charges
Lists the names of registered principals
Lists the names of all additional guests
List car registration numbers
Contact / Next of Kin Details
Consider EFTPos / Direct Debit authority
Annuals Agreements Issue all 4 documents every year
Issue with sufficient notice – minimum 60 days prior to expiration
Send two copies – one for the client, one for you to be signed by the parties and returned to the park ready for your to invoice.
Never refer to the Agreement as a RENEWAL
Each Year Annuals Agreements must be distinct and
severable to give legal effect with a START and END date.
Depending on your formatting, the only document that you may need to change from year to year is the Schedule – your FEES!!
Print & Post the whole document in duplicate not just the invoice as a “Renewal”
Consider Email & setting up as a Form Letter in RMS
Where can I get the templates? Check the VicParks Website – Annuals
Download the Annuals Agreement
Edit the Disclosure Document to suit your park
Edit the Schedule to suit your park
Make sure your Park Rules are current and relevant. (See model rules on website)
And the most asked question to VicParks staff every day?
My Annuals are in arrears. What do I do?
Take Payments Periodically in Advance
Have a Direct Debit Authorisation in place
Act quickly if in arrears…..
The Remedy
Enforce the BREACH & TERMINATION provisions in the VicParks Annual Holiday Agreement.
Terminate the Agreement
Charge nightly Tourist Site Fees
Treat as a commercial debt; or
Treat As Abandoned Property…..make sure you use the Australian Consumer Law not Residential Tenancies
Termination Notice
NEVER, EVER File Notice to
Vacate in VCAT Residential List–
Wrong Jurisdiction (Tomasevic v Simmscorp)
So, if it’s still too hard…..
Ask yourself why are you are in business….?
Then if it’s still too hard….
Consider a career change & get out of our industry…….
A Parky that gets it…..!! Annual Agreement
Posted By: (REMOVED)
Hi (REMOVED), The cost of 10 pages of documentation and administration time is pittance compared to what can result in a legal confrontation. I have over 90 annuals and will never take short cuts. Better safe than sorry. The fact that some people do not read it does not phase me. It is their choice. When "the mud hits the fan" I know I am covered. Highly suggest you spend the time and effort for peace of mind.