NSWFT note: this submission is in response to the Reform of the Home Building Act
1989 and has been extracted from an email received by NSWFT on 2 August 2012.
JOHN SAMUEL SHEEHY
SOLICITOR
[LL.B Syd- ACC.SPEC. WILLS & ESTATES]
A.B.N. 36 405 604 803
Ph 4758 8700 Fx 4758 8277
2 August 2012
I am a solicitor with over 30 years’ experience and also am a licensed plumber with over 43 years’ experience.
There are two areas which require clarification in the HBA1. Work done by builders for preparing plans and quantities for prospective HBA work.
The HIA have put out a preliminary agreement called Form s002. I was recently asked by a builder to prepare a
preliminary agreement. I prepared a new precedent agreement as I have reservations about clauses 5 to 7 of the
HIA agreement. My client has copyright in that agreement but he may be agreeable to provide you with a copy.
Here is an extract of my advice to my client‘Due to my interpretation of what is termed “residential building work’ under S3 of the Home Building Act I
suggest that no connection should exist between the proposed building contract and the preliminary agreement
to avoid the consumer requirements when entering into a building contract. I believe that the HIA document
particularly clause 5-7 is open to an argument that their agreement is “work involved in the construction of a
dwelling” and therefore classified as residential building work.
However please note that design of plans etc is not regarded on its own as residential building work.
In essence it appears that the attached agreement does not require a contractor’s licence to perform. Even
though you do the ‘preliminary’ work under your letterhead you could just as easily do this work as a building
consultant, a project manager or any other whether or not they have any building or drafting qualifications.
You can make the necessary adjustment in price for ‘preliminaries’ when you sign the building contract with the
client.’
I believe that this type of work needs to be expressly excluded from the definition of ‘residential building work’
under the act.
2. Relocatable/Manufactured homes.
These homes are either placed in caravan parks or in manufactured home parks.
I enclose a recent agreement drawn by me which effectively indicates the relevant legislation and its relationship
to other legislation. I claim copyright to that agreement.
The agreement arose as my client the buyer wished to acquire a manufactured home located in a caravan park,
from a company which through various entities owns and runs the caravan park and makes the manufactured
home. In addition the company was buying my client’s strata unit as part of the deal. Under legislation the major
portion of the manufactured homes must be made off site and trucked on site. This was not done here as it was a
reconstruction on site of an existing dwelling.
The following points need clarification in legislation• This contract dealt with an existing manufactured home which was demolished and rebuilt on site. In
my view as this so called relocatable home could not be categorised under the road transport legislation
and was entirely rebuilt on site, the home building act should apply. The seller did not agree. You will
note that the cost was $209000, a considerable sum.
•
The Council informed me that they usually don’t look closely at the HBA requirement as the
manufactured homes are not governed by the Building Code of Australia. Is this so?
•
As many vulnerable people are buying these homes I believe that you need to dovetail all the legislation
together and clarify the situation so that the sellers and buyers are aware of the requirements. It appears
that the sellers are not treating the manufactured homes as kit homes or dwellings. What is your view?
Should the law that applies to kit homes also apply equally to manufactured homes/relocatable that are
not roadworthy.
•
The requirements of the LGA and HBA should be synchronised.
Yours faithfully,
John Sheehy
BETWEENXYZa Corporation incorporated in New South Wales and having its registered office at .
(The Seller”)
of the first partAND
AAA of.
(“The Buyer”)
of the second part
RECITALS
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
The seller is the sole owner of the manufactured home, offered for sale to the buyer
as a relocatable home/moveable dwelling and described in Schedule One hereto.(“
the manufactured home”)
The manufactured home is currently placed on a residential site (“The residential
site.”) detailed in Schedule Two, located in a Residential Park governed by the
Residential Parks Act NSW 1998, the Local Government Act 1993 and the Local
Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and
Moveable Dwellings) Regulation 2005
The residential site is not located within a manufactured homes estate and is located
on a long term site which is approved for a caravan park and is known as BBB.
Gosford Council has granted permission for 95 long term resident sites within the
residential site.
Approval to install the manufactured home in the residential park is required under
section 68 of the Local Government Act unless an exemption applies pursuant to
clause 74 of the Local Government (Manufactured Home Estates, Caravan Parks,
Camping Grounds and Moveable Dwellings) Regulation 2005
The buyer will purchase the manufactured home from the seller in accordance with
the terms and conditions herein.
The manufactured home is a moveable dwelling (with or without a flexible annexe)
within the meaning of the Local Government Act 1993 but it is not or is not capable of
being, registered under the Road Transport (Vehicle Registration) Act 1997.
The manufactured home is a dwelling under s3 of the Home Building Act 1989.
The construction of the manufactured home is residential building work as defined
under the Home Building Act 1989.
The requirements of the Local Government Act 1993, The Local Government
(Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable
Dwellings) Regulation 2005 apply to the installation of a manufactured home on the
residential site. .
The seller is licensed to construct the manufactured home under the Home Building
Act 1989, Licence Number ……..
The manufactured home is constructed and occupies the residential site.
THE PARTIES AGREE AS FOLLOWS-
Price
1. The seller hereby agrees to sell and the buyer agrees to purchase the manufactured
home for the sum of $209,950.00 (“The Purchase Price”)
2. The seller does not require payment of a deposit from the buyer, for the manufactured
home.
3. Completion of this agreement will occur within 21 calendar days from the date hereof.
Conditional contract
4.
Notwithstanding anything to the contrary herein, completion of this agreement on the
completion date is conditional upon, and interdependent with simultaneous completion
of the following agreements(a) An agreement, titled Contract for the Sale of Land- 2005 edition, between the
buyer, as vendor and one BBB as purchaser, for the sale and purchase of the
buyer’s real estate at XXX being the whole of the land in Folio Identifier, YYY and
(b) An agreement, titled Residential Site Agreement, between the buyer (as Resident)
and one PO ( as Park Owner) in relation to a residential site agreement in respect
of the buyer’s right to occupy the manufactured home installed on the residential
site noted in Schedule Two hereto.
5. On the completion date -(i) the buyer will pay the purchase price to the seller by bank cheque as directed by the
seller. The seller will reduce the purchase price by $10.00 for each additional bank
cheque, more than one, required by the seller.
(ii) the seller will provide to the buyer all keys and remote controls for the manufactured
home, all manufacturer’s warranties (including workmanship) for the manufactured
home, all warranties and manuals in respect of fixtures, appliances, fittings or plant
installed in the manufactured home by or on behalf of the seller and which are
reasonably obtainable by the seller.
(iii) the seller will provide the buyer with all necessary documents and consents of the
Park Owner allowing the location of the manufactured home on the residential site,
including but not limited to evidence of approval from Gosford City Council pursuant to
section 68 of the Local Government Act.
(iv) the seller will provide any document of title for the manufactured home to the buyer.
(v) The seller will provide copies of all certificates from a structural engineer as to the
structural soundness of the manufactured home and any annex attached to the
manufactured home.
(vi) the parties will adjust any outgoings (including but not limited to site fees and utility
charges) paid in advance by the seller in relation to the manufactured home and any
such adjustment will be added to the purchase price.
6. Should a party not complete on the completion date the other party, if not in default
under the terms hereof, may issue a Notice to Complete on the other party, in which a
period of 7 calendar days after the date of service, at a nominated place and time, is
calculated the time for completion and such time is of the essence. The parties hereby
acknowledge that the said 7 calendar days in the Notice to Complete is a reasonable
time, in which the other party is to complete the Contract pursuant to the notice and the
issuing party is entitled to make such time of the essence for the purposes of this
agreement.
7. The purchaser may rescind this agreement should the manufactured home be damaged
or destroyed whereby to replace the manufactured home or repair damage to it takes
more than 14 working days. A notice of rescission must be served in writing on the
seller.
Warranties
8. The seller warrants and agrees that :a) It is the sole and absolute legal and beneficial owner of the manufactured home and
there is no impediment in the seller transferring legal title and beneficial ownership
in the manufactured home to the buyer.
b) . At the time of completion the seller does not owe any outstanding fees charges rent
or any other impost to the Park Owner in respect of the occupation of the residential
site by the seller.
c) All utility services are connected to the manufactured home.
d) The title to the manufactured home is not encumbered by any other legal, equitable
or security interest at Common Law or under the Personal Properties Securities Act.
2009.
e) The seller is licensed to construct the manufactured home under the Home Building
Act 1989 and will provide the requisite Home Warranty Insurance certificate to the
buyer at completion.
f)
No insurance claim (where the seller is the claimant or recipient of a claim) is
pending in respect of the manufactured home
g) The seller is not subject to insolvency proceedings.
h) The statutory warranties applicable under the Home Building Act apply to the
manufactured home.
i)
The manufactured home was installed on a long term residential site comprising at
least 80 square metres.
j) The residential site boundaries are clearly delineated.
k) The residential site has vehicular access to an access road.
l) The manufactured home is installed no closer than 3 metres from any adjoining
moveable home as required by clause 91 of the Local Government (Manufactured
Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings)
Regulation 2005 regulations?
m) The manufactured home and any associated structure is located more than one
metre from an access road?
n) The manufactured home and any associated structure is located more than two
metres from the boundary of the residential park.
o) The floor plan area of the manufactured home (as defined by clause 139 of the
regulations) is less than two-thirds of the area of the site.
p) The installation of the garage complies with clause 140 of the regulations.
q) The manufactured home is designed to withstand wind gust speed in accordance
with specifications stated in clause 144 of the regulations.
r) The enclosed floor area of the manufactured home is at least 15 m2 as required by
clause 145 of the regulations.
s) The floor areas of the bathroom, toilet, laundry, shower of the manufactured home
comply with clause 146 of the regulations.
t) The ceiling height in each habitable room of the manufactured home and each other
area comply with clause 146 of the regulations.
u) The toilet is located in a room in compliance with clause 148 of the regulations.
v) The natural lighting and ventilation provided in the manufactured home comply with
clause 149 of the regulations.
w) Termite shields are provided in accordance with clause 150 of the regulations.
x) Fire and smoke alarms are provided in accordance with clause 156 of the
regulations.
y) A compliance plate is attached to the manufactured home in compliance with clause
159 of the regulations.
z) The subject site is not liable to flood.
aa) Each major section of the manufactured home ( as defined in the regulations) was
constructed and assembled off the residential site?
bb) The residential park has all the services required under Division 3 Part 3 of the
regulations?
cc) If a rigid annex is attached to the manufactured home, it complies with requirements
under clauses 166-173 of the regulations, as to structural soundness, floor area,
wind speed loads, compliance plate and notice of completion of installation
dd) This clause 8 does not merge on completion.
Insurance
9. The insurance risks in the manufactured home remain with the seller until legal and
beneficial title passes to the buyer at completion.
Indemnity
10. The seller hereby indemnifies and shall keep the buyer indemnified against any claims
made against the buyer is respect of any claims by third parties against the buyer in
respect of the ownership or liabilities attaching to the manufactured home as at the date
of sale. This clause shall not merge on completion.
Miscellaneous
11. (a )Service is effected by pre-paid post on either party at the addresses noted on the
front page of this agreement and is deemed to occur on the second business day
after the date of despatch.
(b) The Schedules and Recitals form part of the terms of this agreement.
(c) If the buyer dies before completion this contract is deemed rescinded from the
buyer’s date of death.
(d) The purchaser is entitled to inspect the manufactured home within 3 days prior to
completion and the seller will assist the buyer in testing all appliances and fixtures.
12. Definitions
“completion date”- is the date which is the latter of the prospective completion dates
calculated in accordance with clauses 3 and 4 hereof or such other date as is agreed in
writing between the parties.
“community map”: has the meaning as defined in Regulation 4 the Local Government
(Manufactured Home Estates, Caravan Parks, Camping Grounds And Moveable Dwellings)
Regulation 2005 – as follows:
(a) in relation to a manufactured home estate-means a scale map that accurately shows the
road reserves, the community amenities and the dwelling sites within the manufactured
home estate, and
(b) in relation to a caravan park or camping ground-means a scale map that accurately
shows:
(i) the access roads, community amenities and community buildings within the caravan
park or camping ground, and
(ii) the number, size, location and dimensions of dwelling sites or camp sites within the
caravan park or camping ground, and
(iii) in relation to a dwelling site or camp site within the caravan park or camping ground,
the particular off-site parking space or spaces (if any) designated for use by the occupier of
the dwelling site or camp site.
“compliance plate” has the meaning as defined in Regulation 4 the Local Government
(Manufactured Home Estates, Caravan Parks, Camping Grounds And Moveable Dwellings)
Regulation 2005 – as follows:
a compliance plate referred to in clause 67 or 159.
“dwelling site”:
(a) in relation to a manufactured home estate-means an area of land within the
manufactured home estate that is designated as a dwelling site by the approval for the
manufactured home estate, and
(b) in relation to a caravan park-means an area of land within the caravan park on which a
moveable dwelling may be installed and that is designated as a dwelling site by the approval
for the caravan park.
“dwelling” has the meaning as defined in section 3 of the Home Building Act NSW 1989,
as follows –a building or portion of a building that is designed, constructed or adapted for
use as a dwelling (such as a detached or semi-detached house, transportable house, terrace
or town house, duplex, villa-home, strata or company title home unit or residential flat).
It includes any swimming pool or spa constructed for use in conjunction with a dwelling and
such additional structures and improvements as are declared by the regulations to form
part of a dwelling.
It does not include buildings or portions of buildings declared by the regulations to be
excluded from this definition.
Home Building Act Regulation 2004
Definition of “dwelling”-certain residential buildings and other structures excluded
Regulation 6 Definition of “dwelling”-certain residential buildings and other structures
excluded.
For the purposes of the definition of “dwelling” in section 3 (1) of the Home Building Act
NSW 1989, the following are declared to be excluded from that definition:
(a) a boarding house, guest house, hostel or lodging house,
(b) all residential parts of a hotel or motel,
(c) any residential part of an educational institution,
(d) accommodation (other than self-contained units) specially designed for the aged, persons
with a disability or children,
(e) any residential part of a health care building that accommodates staff,
(f) a house or unit designed, constructed or adapted for commercial use as tourist, holiday
or overnight accommodation,
(g) any part of a non-residential building that is constructed or adapted for use as a
caretaker’s residence,
(h) a moveable dwelling (with or without a flexible annexe) within the meaning of the Local
Government Act 1993 that is, or is capable of being, registered under the Road Transport
(Vehicle Registration) Act 1997 (such as a caravan or a motor home),
(i) a residential building for the purposes of which development consent can be granted only
because of State Environmental Planning Policy No 15-Rural Landsharing Communities .
“long-term site” has the meaning as defined in Regulation 4 the Local Government
(Manufactured Home Estates, Caravan Parks, Camping Grounds And Moveable Dwellings)
Regulation 2005 – as follows:
a dwelling site that is specified in the approval for a caravan park as being a long-term site.
“major section” has the meaning as defined in Regulation 4 the Local Government
(Manufactured Home Estates, Caravan Parks, Camping Grounds And Moveable Dwellings)
Regulation 2005 – as follows:
a single portion of a manufactured home or relocatable home, being a portion:
(a) that contains a total living space (excluding the living space contained in any associated
structure) of at least 20 cubic metres, and
(b) that comprises all of the major components of that portion of the home, including the
chassis or frame, the external and internal walls, the roof and ceilings, the floors, the
windows and doors, the internal plumbing and wiring, the tiling, the kitchen, bathroom and
laundry fittings (other than stoves, refrigerators, washing machines and other whitegoods)
and the built-in cupboards and cabinets.
“manufactured home” has the meaning as defined in the Dictionary to the Local
Government Act NSW 1993 as followsmeans a self-contained dwelling (that is, a dwelling that includes at least one kitchen,
bathroom, bedroom and living area and that also includes toilet and laundry facilities),
being a dwelling:
(a) that comprises one or more major sections, and
(b) that is not a registrable vehicle within the meaning of the Road Transport (Vehicle
Registration) Act 1997 ,
and includes any associated structures that form part of the dwelling.
“manufactured home estate” means land on which manufactured homes are, or are to be,
erected
“moveable dwelling” has the meaning as defined in the Dictionary to the Local
Government Act NSW 1993 as follows(a) any tent, or any caravan or other van or other portable device (whether on wheels or not),
used for human habitation, or
(b) a manufactured home, or
(c) any conveyance, structure or thing of a class or description prescribed by the regulations
for the purposes of this definition
“relocatable home” has the meaning as defined in Regulation 4 the Local Government
(Manufactured Home Estates, Caravan Parks, Camping Grounds And Moveable Dwellings)
Regulation 2005 – as follows:
(a) a manufactured home, or
(b) any other moveable dwelling (whether or not self-contained) that comprises one or more
major sections, including any associated structure that forms part of the dwelling, but does
not include a tent, caravan or campervan or any moveable dwelling that is capable of being
registered under the Road Transport (Vehicle Registration) Act 1997 .
“residential park” has the meaning defined in section 3 of the Residential Parks Act 1998
as follows-:
(a) a caravan park (that is, land, including a camping ground, on which caravans, or
caravans and other moveable dwellings, have been, are or are to be placed, installed or
erected), or
(b) a manufactured home estate (that is, land on which manufactured homes have been, are
or are to be placed),
whether or not the caravan park or manufactured home estate is the subject of an approval
under the Local Government Act 1993 .
“residential premises” has the meaning defined in section 3 of the Residential Parks Act
1998 as follows-:
(a) any premises or part of premises (including any land occupied with the premises) used or
intended to be used as a place of residence, and
(b) includes a residential site on which a moveable dwelling is situated or intended to be
situated (or both a moveable dwelling and residential site), if the moveable dwelling is used
or intended to be used as a place of residence.
“residential site” has the meaning defined in section 3 of the Residential Parks Act 1998 as
followsa site within a residential park that is used, or is intended to be used, for the installation of
a moveable dwelling.
“the Act”- Means the Local Government Act NSW 1993.
“ the regulations” means the Local Government (Manufactured Home Estates, Caravan
Parks, Camping Grounds And Moveable Dwellings) Regulation 2005
The parties hereto have executed and signed this agreement on the date aforesaid.
SCHEDULE ONE
Manufactured Home- (Recital A)
Description
Timber Stud Aluminium/steel frame.*
Two bedrooms, combined lounge, dining and
kitchen area, bathroom, single garage &
Laundry. Plus inclusions noted in this
schedule.
*Delete that which is not applicable.
Inclusions
Registration/Compliance Plate & Serial
Number
.
Model Number and or marketing
name.
Dimensions and overall area of the
home.
Size of major section.
Area of the long term site
Dimensions of additional area. (eg
Garage and or annex)
Plan.
Unencumbered owner of the home
Vertical drapes Curtains, Blinds, ceiling fans
(2), exterior blinds (2), security screen doors (2),
Carpets.
Light fittings.
Oven.
Cooktop.
Range Hood.
Dishwasher.
Split System air conditioner.
Security Screen Door.
Garage Door with Remote opener.
Clothesline.
Gardens.
(Delete that which is not applicable.)
Not registered or capable of registration under
the Road Transport (Vehicle Registration) Act
1997
Compliance plate No.. ??
(Must be no less than 20 cubic metres)
(Must be at least 80 m2)-
A plan of the home and any attachments (
garage/ garden/annex.) is annexed and marked
‘A’.
Pty Limited
SCHEDULE TWO
Residential Site Details.- (Recital B)
Registered Proprietor of the freehold
land and title particulars.
Proprietor of the residential Park
Manager of the residential park.
Name of the Residential Park and
street address.
Site Number
Site Plan.
Community Map
PO
Folio Identifier
PO.
Site –No.
A plan of site xy in the residential park is
annexed and marked ‘B’
A community map of the development in which
the manufactured home is part is annexed and
marked ‘C’.