Other types of shelter: aged care, residential parks and squats: HSC Legal Studies

What this dot point is asking

The syllabus lists "securing other types of shelter such as: aged care, residential parks and squats" under legal protection and remedies associated with securing shelter in the Shelter option of the Legal Studies Stage 6 Syllabus (2009). You need to know how people secure each type of shelter, what legal protection and remedies apply, and how effective they are. Retirement villages are closely related to aged care and residential parks and are a useful extra example.

These forms of shelter matter because the people who live in them are often older, on low incomes or otherwise vulnerable, and because the law governing them has changed significantly in response to inquiries and media exposure. NESA's feedback has repeatedly rewarded answers that range across different shelter types, including aged care (2020 and 2021) and residential parks (2020), rather than writing only about renting.

The answer

Aged care

How it is secured

An older person is assessed as eligible for Commonwealth-funded aged care, then enters a residential aged care home under a resident agreement with an approved provider. They pay daily fees and, for their room, either a lump sum refundable accommodation deposit (RAD), a daily payment, or a combination, depending on their means.

The problem

The Royal Commission into Aged Care Quality and Safety (final report Care, Dignity and Respect, 1 March 2021) found "substandard care" was widespread, with neglect, poor nutrition, unsafe use of restraints and understaffing, and that the system was designed around providers rather than older people.

The legal response

• Earlier reforms included mandatory care minutes and a requirement for a registered nurse on site 24 hours a day from 1 July 2023.
• The Aged Care Act 2024 (Cth) commenced on 1 November 2025, replacing the Aged Care Act 1997. It is described as rights-based: its Statement of Rights recognises older people's rights to choice, equitable access, safety, dignity and respect, privacy, being heard and connection, and providers must act compatibly with it. It strengthens the powers of the Aged Care Quality and Safety Commission to investigate, sanction providers and handle complaints, and introduces stronger duties on providers.
• It also changed accommodation payments: for people entering care from 1 November 2025, providers must deduct and keep 2 per cent a year of a RAD for up to five years, a change that helps provider finances but reduces the refund residents or their estates receive.
• At home, the new Support at Home program started with the Act.

Evaluation. The new Act is a significant response to the Royal Commission and a clear example of law reform recognising rights. But it came after decades of reports, and its effectiveness depends on enforcement and staffing; residents with dementia or no family support may be unable to assert their rights.

Retirement villages

How it is secured

An older person pays an ingoing contribution to live in a village under a village contract, often a lease or licence; many contracts impose a departure fee (deferred management fee) and share capital gains between resident and operator. Residents also pay recurrent charges for services.

The law

The Retirement Villages Act 1999 (NSW) requires disclosure before entry, a cooling-off period, rules on fees and village budgets, residents' committees, and dispute resolution through NCAT.

Reform

After media investigations in 2017 into retirement village contracts and fees, NSW commissioned an inquiry and amended the law. The main change, in force from 2021, requires operators to pay exit entitlements to registered interest holders within 6 months (Sydney, Newcastle, Wollongong and the Blue Mountains) or 12 months (elsewhere) of the relevant trigger, so former residents are not left waiting years for their money to move into aged care; NCAT can make exit entitlement orders.

Evaluation

Disclosure and exit reforms improve fairness, but contracts remain complex and residents are usually in a weak bargaining position.

Residential parks (land lease communities)

How it is secured

A resident buys a home, often a manufactured home, located on a site in a residential park and signs a site agreement with the operator, paying site fees for the land and facilities. Some residents instead rent both home and site under a residential tenancy agreement, to which the Residential Tenancies Act 2010 applies. Land lease communities are an affordable option for many older and low-income people.

The law

The Residential (Land Lease) Communities Act 2013 (NSW) regulates site agreements, site fees and increases, community rules, repairs and facilities, the sale of homes on site, and termination. A home owner can challenge an excessive site fee increase at NCAT, which received 386 residential communities applications in 2024-25.

Reform

A statutory review made 48 recommendations, and the Residential (Land Lease) Communities Amendment Act 2024 implemented 21 of them. Most changes commenced on 25 September 2024: new fixed-method site fee increases must use a single element (such as a dollar figure, a percentage or CPI) to make increases predictable, and there were changes to entry, alterations and termination notice periods; new rules on utility charges followed in December 2024.

Evaluation

The Act gives home owners real protection, but they are exposed because they own a home that is expensive to move and depend on the operator for the land. Disputes over site fees and redevelopment of parks remain common.

Squats

What squatting is. A squat is occupation of land or a building without the owner's permission. People squat because they are homeless, because properties are left vacant, or as political protest. In the 1970s, residents and squatters in Victoria Street, Potts Point resisted redevelopment with the support of union "green bans", an example of squatting as protest over housing.

Legal position.

• Squatting is unlawful. The owner can sue for trespass and obtain an order for possession, enforced by the Sheriff, and entering inclosed land without lawful excuse is a criminal offence under the Inclosed Lands Protection Act 1901 (NSW). Squatters have no protection under the Residential Tenancies Act because there is no agreement with the owner.
• Adverse possession. Under the Limitation Act 1969 (NSW), an owner must act within 12 years; after that, their title to recover the land is extinguished. A person who has been in open, continuous and exclusive possession for that period, with the intention to possess, can apply for possessory title under the Real Property Act 1900 (NSW).
• McFarland v Gertos [2018] NSWSC 1629. The registered owner of a house in Ashbury died in 1947. After his tenant died in 1998, Bill Gertos, a property developer, found the house empty and dilapidated with its rear door off its hinges, secured and renovated it and rented it out. When he applied to be registered as owner, the owner's descendants challenged him. Justice Darke held that Mr Gertos had been in factual possession with the intention to possess since about 1998, openly and without permission, so he was entitled to be registered.

Evaluation. The law strongly protects owners against squatters, reflecting the value placed on private property; adverse possession rewards productive use of abandoned land and gives certainty. Critics argue the rule can benefit wealthy developers (as in Gertos) more than people who squat out of need, and it does nothing for homeless people who need shelter now. See homelessness.

Do legal measures respond to change?

In one sentence

People securing shelter in aged care, retirement villages and residential parks are now protected by rights-based aged care law (from November 2025), exit entitlement rules (2021) and site fee reforms (2024), each introduced after harm was exposed, while squatters are trespassers who gain title only after 12 years of adverse possession, showing a law that responds to change but usually late.

Try this

Q1. Outline how the Aged Care Act 2024 (Cth) protects residents of aged care. (4 marks)

• What the marker wants. The Statement of Rights, the regulator's powers, provider duties and the commencement date.

Q2. Explain the significance of McFarland v Gertos (2018). (4 marks)

• What the marker wants. The facts, adverse possession and the 12-year rule, and what it shows about property rights.

Q3. Assess the effectiveness of the law in protecting residents of retirement villages and residential parks. (8 marks)

• What the marker wants. The two Acts, the 2021 and 2024 reforms, NCAT's role, the power imbalance, and a judgement.