(1) In this Act— accounts of a retirement village means the accounts referred to in Division 6 of Part 7.annual management meeting means the meeting referred to in section 72A.approved annual budget means a budget taken to be an approved annual budget under section 116.association andassociation property have the same meanings as they have in the. Community Land Management Act 2021 capital maintenance means works carried out for the purpose of repairing or maintaining an item of capital and includes works prescribed by the regulations as being capital maintenance, but does not include works that are prescribed by the regulations as not being capital maintenance.capital replacement means works carried out for the purpose of replacing an item of capital, but does not include capital maintenance.capital works fund means a fund established under section 99.close associate of an operator of a retirement village means—
(a) if the operator is a natural person—
(i) the spouse, de facto partner, parent, child or sibling of the operator, or (ii) the parent, child or sibling by marriage of the operator, or (iii) a body corporate of which the operator (or the operator’s spouse, de facto partner, parent, child or sibling, or the operator’s parent, child or sibling by marriage) is a director or secretary, and (b) if the operator is a body corporate—
(i) a director or secretary of the body corporate or of a related body corporate (within the meaning of the of the Commonwealth), or Corporations Act 2001 (ii) the spouse, de facto partner, parent, child or sibling (or the parent, child or sibling by marriage) of such a director or secretary, or (iii) a related body corporate, and (c) in either case—an agent or employee of the operator. Note— “De facto partner” is defined in section 21C of the . Interpretation Act 1987 community land scheme means a scheme (other than a strata scheme) within the meaning of the. Community Land Management Act 2021 company title scheme means a scheme under which a group of adjoining or adjacent premises (including residential premises) is owned or leased by a corporation each of whose shareholders has, by virtue of his or her shares, an exclusive right (under a lease or otherwise) to occupy one or more of the residential premises.condition report means a report referred to in section 38.Consumer Price Index means the Consumer Price Index (All Groups) for Sydney as published by the Australian Statistician.de facto relationship has the same meaning as it has in the. Property (Relationships) Act 1984 departure fee —see section 156.development anddevelopment consent have the same meanings as they have in the. Environmental Planning and Assessment Act 1979 disclosure statement means a statement referred to in section 18 (3A).exercise a function includes perform a duty.financial year of a retirement village is the period determined under section 91.former occupant of a retirement village means a resident, or a former resident, of the village—
(a) who has permanently vacated any residential premises in the village, and (b) whose residence contract has been terminated (unless the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the residential premises concerned), and (c) who continues to have rights or liabilities under a village contract relating to the village, and includes, except in Part 10AA, the executor or administrator of the estate of such a person. function includes a power, authority or duty.general inquiry document means a document referred to in section 18 (2).general services means services provided, or made available, by or on behalf of the operator, to all residents of a retirement village, and includes such services as may be prescribed by the regulations for the purposes of this definition.Note— Examples of general services are management and administration services and gardening and general maintenance. holding deposit means money paid to the operator of a retirement village in consideration for not offering particular residential premises in the village to any other person pending a prospective resident’s entering into a residence contract with the operator.ingoing contribution —see section 6.investigator means an investigator appointed under the. Fair Trading Act 1987 item of capital means—
(a) any building or structure in a retirement village, and (b) any plant, machinery or equipment used in the operation of the village, and (c) any part of the infrastructure of the village, and (d) any other item prescribed by the regulations, but does not include any item excluded from this definition by the regulations. licensed conveyancer means the holder of a licence in force under the. Conveyancers Licensing Act 2003 operator of a retirement village means the person who manages or controls the retirement village, and includes—
(a) a person (other than a resident or other person referred to in subsection (2)) who owns land in the village, and (b) any other person or class of persons prescribed by the regulations for the purposes of this definition, but does not include—
(c) the relevant association of a community land scheme or the owners corporation of a strata scheme, or (d) the managing agent of such a scheme, or (e) any person or class of persons excluded from this definition by the regulations. optional services means optional services made available, by or on behalf of the operator, to individual residents of a retirement village, and includes such services as may be prescribed by the regulations for the purposes of this definition.Note— Examples of optional services are the provision of meals, laundry services and the cleaning of the residents’ residential premises. proposed annual budget means a proposed annual budget referred to in section 112.prospective resident of a retirement village means a person who indicates (or on whose behalf it is indicated) to the operator of the village that he or she is (or might be) interested in becoming a resident of the village.proxy of a resident of a retirement village means a person appointed by the resident for the purpose of voting on the resident’s behalf at meetings of residents.recurrent charge means any amount (including rent) payable under a village contract, on a recurrent basis, by a resident of a retirement village.Note— Levies payable under a community land scheme or strata scheme are not recurrent charges (because they are not payable under a village contract).Register means—
(a) in relation to land under the —the Register kept under that Act, and Real Property Act 1900 (b) in relation to any other land—the General Register of Deeds kept under the . Conveyancing Act 1919 relative of a person means—
(a) the person’s grandparent, parent, sibling or child, and (b) the person’s grandparent, parent, sibling or child by marriage, and (c) the person’s step-grandparent, step-parent, step-brother, step-sister or step-child, and (d) the person’s aunts and uncles. rescission notice means a notice under section 32 or 33.residence contract means a contract that gives rise to a residence right.residence right of a person means the person’s right to occupy residential premises in a retirement village, being a right arising from a contract—
(a) under which the person purchased the residential premises, or (b) under which the person purchased shares entitling the person to occupy the residential premises, or (c) in the form of a lease, licence, arrangement or agreement of any kind, other than a residential tenancy agreement in the form prescribed under the — Residential Tenancies Act 2010
(i) that is entered into under Division 5 of Part 10, or (ii) that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement, or (d) in the form of any other contract of a kind prescribed by the regulations, or any other right of a kind prescribed by the regulations. Note— See also subsection (2). resident of a retirement village means a retired person who has a residence right in respect of residential premises in the village and includes the following persons (each of whom is taken also to have a residence right in respect of the residential premises concerned)—
(a) the spouse of the retired person, if the spouse occupies the residential premises with the retired person, (b) if the retired person is in a de facto relationship—the other party to that relationship, if the other party occupies the residential premises with the retired person, (c) any person or class of persons prescribed by the regulations for the purpose of this definition, (d) in Parts 6, 7 and 8 and Division 5 of Part 10—a former occupant of the retirement village. residential aged care facility means any residential accommodation for retired people that includes—
(a) meals and cleaning services, and (b) personal care or nursing care, or both, and (c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care. residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence.residential tenancy agreement has the same meaning as it has in the. Residential Tenancies Act 2010 Residents Committee means a committee established under section 70.retired person means a person who has reached the age of 55 years or has retired from full-time employment.retirement village —see section 5.Secretary means—
(a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Customer Service. service contract means a contract under which a resident of a retirement village is provided with general services or optional services in the village.special resolution means a resolution described in Part 3 of Schedule 1.strata scheme has the same meaning as it has in the. Strata Schemes Management Act 2015 tenant means a person who has the right to occupy residential premises under a residential tenancy agreement in the form prescribed under the— Residential Tenancies Act 2010
(a) that is entered into under Division 5 of Part 10, or (b) that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement. Note— A tenant is not a resident .Tribunal means the Civil and Administrative Tribunal.village contract means—
(a) a residence contract, or (b) a service contract, or (c) a contract under which a resident of a retirement village obtains the right to use a garage or parking space, or a storage room, in the village, or (d) any other contract of a kind prescribed by the regulations for the purpose of this definition. Note— A residence contract, a service contract and any other village contract may be contained in a single document. village rules means the rules made and in force from time to time under Division 1 of Part 6.Note— The contains definitions and other provisions that affect the interpretation and application of this Act. Interpretation Act 1987 (2) For the purposes of the definition of residence right in subsection (1), it does not matter that the person who obtains the right—
(a) is a corporation, if the premises concerned are intended for use as a residence by a natural person, or (b) obtains it for the purpose of allowing another person to live in the residential premises (instead of the person who obtained the right), and in those cases, a retired person who lives in the premises with the consent of the corporation or of the person (as the case may be) is taken to have the residence right. Note— Subsection (2) would apply in the case, for example, of a person who buys a strata-titled unit in a retirement village for the person’s parent to live in.
(1) A person who manages or controls a complex containing residential premises must not knowingly represent that the complex is a retirement village unless the complex is a retirement village within the meaning of this Act. Maximum penalty—50 penalty units. (2) The operator of a retirement village must not make a representation to a prospective resident knowing that it is inconsistent with the information contained in the disclosure statement provided to the prospective resident. Maximum penalty—50 penalty units. (3) The operator of a retirement village must not knowingly represent to a prospective resident that a particular service or facility is provided to or available at the village or to the residents, or is associated with the village, unless the service or facility is so provided or made available or associated. Maximum penalty—50 penalty units.
(1) The operator of a retirement village must provide a person with a general inquiry document within 14 days after becoming aware that the person is a prospective resident or is acting on behalf of a prospective resident. (2) A general inquiry document is to give a basic explanation of the residential premises, services and facilities that are available within a retirement village, and must—
(a) be in the form prescribed by the regulations, and (b) contain the information prescribed by the regulations. (3) The operator of a retirement village must provide a disclosure statement to a prospective resident, or person acting on behalf of a prospective resident, who—
(a) requests a copy, or (b) expresses an interest in particular premises within the retirement village, within 14 days after the request is received or the expression of interest is made. Maximum penalty—20 penalty units.
(1) The operator of a retirement village must have available at the village or at a place of business in New South Wales, for inspection at all reasonable times by a resident or prospective resident or a person acting on behalf of a resident or prospective resident, copies of the following—
(a) a site plan for the village, (b) plans showing the location, floor plan and significant dimensions of residential premises available in the village, (c) the proposed annual budgets (if any) and the approved annual budgets for—
(i) each of the last 3 financial years of the village, and (ii) the current financial year, and (iii) the next financial year (if budgets in respect of that year are available), (d) the accounts for the village, audited if so required under Division 6 of Part 7, for the last 3 financial years (excluding, during the first 4 months of a financial year, the immediately preceding financial year if the accounts for that year are not available), (e) examples of all village contracts that an incoming resident may be required to enter into, (f) the trust deed for any trust fund into which money paid by the residents is deposited, (g) the village rules, (g1) the asset management plan for the village referred to in section 101A, (h) the terms of the development consent, if any, for the village, but only if—
(i) construction of the village is not complete, or (ii) it is a condition of the development consent that a particular service or facility be provided for the life of the village, (i) if there is a capital works fund established for the village—statements of the balance in the fund as at the end of—
(i) each of the last 3 financial years of the village, and (ii) the most recent quarter, (j) if the operator is required to provide the residents with quarterly accounts—the most recent quarterly accounts of the income and expenditure of the village, (k) such other documents relating to the village, and to retirement villages generally, as the regulations may prescribe. Maximum penalty—50 penalty units. Note— Section 197 prohibits an operator of a retirement village from charging for the provision of these documents.
(1) (2) The operator of a retirement village must ensure that any money paid to the operator—
(a) as a holding deposit, or (b) as a deposit under a village contract, is held in trust in accordance with this section. Maximum penalty—50 penalty units. (3) The money may be held—
(a) in an Australian legal practitioner’s trust account, or (b) in the trust account of a person licensed as a real estate agent under the , or Property and Stock Agents Act 2002 (c) in a licensed conveyancer’s trust account, or (d) by a trustee company (within the meaning of the ), or Trustee Companies Act 1964 (e) in such other manner as the regulations may prescribe.
(1) The operator of a retirement village must not permit a prospective resident of the village to occupy residential premises in the village before the prospective resident enters into at least one of the following contracts with the operator in writing—
(a) a residence contract, (b) a service contract. Maximum penalty—50 penalty units. Note— A residence contract, a service contract and any other village contract may be contained in a single document.
(1) The operator of a retirement village must, in accordance with this section, notify the Registrar-General in writing that the land comprising the retirement village (or land that is part of the retirement village) is used as a retirement village. Maximum penalty—100 penalty units. (2) Any such notice is to be provided—
(a) in the case of land that, immediately before the commencement of this section, was used as a retirement village—within 3 months after the commencement of this section, or (b) in any other case—before entering into a residence contract with respect to residential premises on that land. (3) Nothing in this section requires the operator of a retirement village to notify the Registrar-General before entering into a residence contract regarding residential premises on land that is already the subject of a recording under this section. (4) Form of notice for recording The notice referred to in subsection (1) must be—
(a) in the form approved by the Registrar-General, and (b) in the case of a notice relating to land under the —accompanied by the fee prescribed under that Act, and Real Property Act 1900 (c) in the case of a notice relating to land not under the —accompanied by the fee prescribed under the Real Property Act 1900 . Conveyancing Act 1919
(1) An operator of a retirement village must not restrict any person’s right to seek independent advice before entering into a village contract with the operator. Maximum penalty—10 penalty units.
(1) A purported variation of a village contract, and a purported termination of a village contract and entry into a new village contract by the same parties in relation to the same residential premises, is of no effect (and the contract continues as in force before the purported variation or termination) unless the resident who is a party to the contract obtains a written certificate in accordance with this section. (1A) An operator must not purport—
(a) to vary a village contract, or (b) to terminate a village contract and enter into a new village contract in relation to the same residential premises, unless the resident who is a party to the contract has obtained a certificate in accordance with this section. Maximum penalty—100 penalty units.
(1) The reasonable costs of obtaining a certificate required by section 29 are payable by the operator of the retirement village as if the operator, and not the resident, were the client of the Australian legal practitioner concerned.
(1) Legal and other expenses incurred by the operator of a retirement village in connection with the preparation of a village contract are payable by the operator and the resident concerned in equal shares (except as provided by section 30). (2) The operator must provide the resident with a copy of any account presented to the operator in respect of those expenses and the resident is not required to make any such payment until the operator has done so.
(1) A rescission notice in relation to a residence contract is taken also to apply to the service contract and any other village contract entered into by the resident concerned, and each of those contracts is taken to be void. (2) As soon as is reasonably practicable (and no later than one month) after a rescission notice that applies to a residence contract takes effect—
(a) the rescinding party is to be repaid all money paid by or on behalf of the party under the residence contract, and (b) if the residence contract related to residential premises that are subject to a community land scheme, company title scheme or strata scheme and was rescinded under section 33, the rescinding party must—
(i) execute such instruments as may be necessary to enable re-registration of the shares (in the case of premises that are subject to a company title scheme) or title (in any other case) in the name of the operator under the rescinded contract, and (ii) deliver up to the operator the relevant share documents. (3) The Tribunal may do either or both of the following—
(a) on the application of the rescinding party—order the other party to the contract to comply with subsection (2) (a), (b) on the application of the operator—order the rescinding party to comply with subsection (2) (b).
(1) The operator of a retirement village must not permit a prospective resident of the village to occupy residential premises in the village unless the operator prepares, and gives to the prospective resident, a report relating to the condition of the premises at the commencement of the prospective resident’s occupation of the premises (a condition report ).(2) A condition report must take the form prescribed by, and must be completed in accordance with, the regulations.
(1) A resident of a retirement village may—
(a) add, remove or alter any fixtures or fittings on or within the resident’s residential premises, or (b) make renovations to the resident’s residential premises, but only with the written consent of the operator of the retirement village. (2) The consent of the operator may be subject to such reasonable conditions as the operator may include in, or attach to, the written consent. (3) Without limiting subsection (2), the operator may consent to any addition, removal or alteration of fixtures or fittings, or to any renovations, referred to in subsection (1) subject to the condition that, on the termination of the resident’s village contract, the premises will be returned to the same condition as they were in immediately before the consent was given.
(1) The regulations may prescribe a standard form of village contract. (2) The regulations may provide for—
(a) more than one standard form of village contract, or (b) the addition of clauses to, or the omission or variation of clauses contained in, the standard form or forms, for use in relation to different classes of village contracts (including different classes of residence contracts) or different classes of residential premises. (3) A village contract for which a standard form is prescribed, and that is entered into after the day on which the form is prescribed, is void to the extent to which it is not in or to the effect of the standard form.
(1) A resident of a retirement village may terminate a village contract to which the resident is a party—
(a) by permanently vacating the residential premises within the village, or (b) in the case of a contract other than a residence contract—by notice in writing to the operator of the retirement village indicating an intention to terminate the contract, before the end of the settling-in period.
(1) If a village contract is terminated in accordance with this Division, the former occupant is only liable to pay—
(a) fair market rent for the period (if any) that the former occupant occupied the residential premises under the contract, and (b) in the case of a village contract that is a residence contract, the cost of any repairs for damage to the residential premises in excess of fair wear and tear, and (c) a reasonable administration fee, and (d) such other amount as may be prescribed by the regulations.
(1) Except as provided by subsection (2), a refund or payment under this Division is to be made within 14 days after the termination of the village contract or within such other period as the Tribunal may order. (2) A payment referred to in section 44C (a) or (b) that is to be made to a former occupant who was a registered interest holder is to be made within the period after the termination that is the same period as that required for a payment under section 180 (2) to a former occupant following the sale of premises.
(1) The operator of a retirement village must propose an amendment to the village rules if—
(a) a minimum of 5 residents, or 10% of the residents, (whichever is the greater) of the village (or, if the village has fewer than 10 occupied residential premises, residents from a majority of the occupied residential premises), or (b) the Residents Committee of the village, requests the operator in writing to do so. (2) The operator may propose an amendment to the village rules even if there has been no request under subsection (1). (3) A proposed amendment is not to be made unless the residents of the village, by a special resolution, consent to the amendment.
(1) If the operator of a retirement village considers that an amendment to the village rules to which the residents have consented under section 51 will impose a cost on the operator additional to that allowed for in the approved annual budget, the operator must seek the residents’ consent to an amendment to the approved annual budget. Note— Division 5 of Part 7 provides for proposed and approved annual budgets. Section 117 allows an operator to seek the residents’ consent to an amendment to the approved annual budget if unforeseen requirements for expenditure arise. (2) Section 115 does not apply to or in respect of a consent sought under this section.
(1) A person to whom this section applies must not—
(a) be an operator of a retirement village, or (b) be involved in the promotion or sale of residence rights in a retirement village, or (c) be in any way (whether directly or indirectly) concerned, or take part, in the management or control of a retirement village. Maximum penalty—100 penalty units.
(1) The operator of a retirement village must ensure that the village generally is reasonably safe. (2) In particular, the operator must—
(a) ensure that an emergency plan is prepared for the retirement village, and (b) ensure that the emergency plan is maintained so that it remains effective, and (b1) take reasonable steps to ensure that all residents and staff are familiar with the emergency plan, and (c) undertake a safety inspection at least once each calendar year, and make a safety inspection report on the findings of any such inspection, and (d) ensure that residents are—
(i) notified in writing when a safety inspection is undertaken, and (ii) given access to the safety inspection report if they request it, and (e) take such other action as the regulations may require to ensure that the village generally is reasonably safe.
(1) The operator of a retirement village must ensure that—
(a) an evacuation exercise for residents is carried out at least once each calendar year, and (b) key safety information is clearly displayed in communal areas within the retirement village, and (c) key safety information is provided to residents in relation to their residential premises within the retirement village. Maximum penalty—200 penalty units (in the case of a corporation) or 100 penalty units (in any other case). Note— Section 189B enables the Secretary to issue guidelines to assist operators in complying with their obligations under this section. The Tribunal may take guidelines into account in determining whether there has been compliance with this section.
(1) The residents of a retirement village may, by a special resolution, request the operator of the village to provide or arrange for a village emergency system of a specified kind in the village. (2) If such a request is made, the residents are taken to have consented to the inclusion, in the proposed annual budget relating to the financial year next following the date of the resolution, of the cost of providing or arranging for the village emergency system concerned.
(1) The operator of a retirement village must propose a variation in the services and facilities provided at the village if—
(a) a minimum of 5 residents, or 10% of the residents, (whichever is the greater) of the village (or, if the village has fewer than 10 occupied residential premises, residents from a majority of the occupied residential premises), or (b) the Residents Committee of the village, requests the operator in writing to do so. (2) The operator may propose a variation in the services and facilities provided at the village even if there has been no request under subsection (1). (3) The services and facilities provided at the village are not to be varied as proposed unless the residents of the village, by a special resolution, consent to the variation. If consent is given, the operator may vary the service or facility in accordance with the consent as soon as is practicable (unless the resolution provides that the variation is to take effect on a specified later date). (4) An operator who receives a request under subsection (1) must call a meeting of the residents of the village, to be held no later than 28 days after the receipt of the request, for the purpose of considering a special resolution concerning the proposed variation.
(1) The operator of a retirement village must not require a resident or prospective resident of the village to give the operator a power of attorney in favour of the operator, a close associate of the operator or a person nominated by the operator. Maximum penalty—100 penalty units.
(1) The operator of a retirement village and any person authorised by the operator must not, while a person has residence rights in relation to residential premises in the village, enter those residential premises except as permitted by this section. Maximum penalty—20 penalty units.
(1) The operator of a retirement village, if requested in writing by a resident, must—
(a) meet with the resident at least once each calendar year to explain the resident’s current village contract information, and (b) provide a written summary at the meeting of the explanation of the resident’s current village contract information. Note— Section 189B enables the Secretary to issue guidelines to assist operators in complying with their obligations under this section. The Tribunal may take guidelines into account in determining whether there has been compliance with this section. Maximum penalty—50 penalty units (in the case of a corporation) or 20 penalty units (in any other case). (2) The operator is not required to explain under subsection (1) (a) any information forming part of the resident’s current village contract information if the written request for the meeting indicates that the resident has waived an explanation of the information. Note— However, the operator must still include the information in the written summary provided under subsection (1) (b). (3) A resident may, in the written request for the meeting or by a further notice in writing given to the operator, nominate one or more persons to represent the resident at the meeting or to attend the meeting with the resident. (4) The operator must ensure that—
(a) the resident or a nominated representative of the resident is provided with a written reply to a request for a meeting, and (b) if the resident is entitled to a meeting, the meeting is held within 30 days of the request for the meeting being received by the operator. (5) An operator commits an offence if the operator contravenes subsection (4) (b). Maximum penalty—50 penalty units (in the case of a corporation) or 20 penalty units (in any other case).
(1) A Residents Committee may, with the consent of the residents of a retirement village, be established in the village for the purposes of this Act. (2) A Residents Committee is to be elected by the residents. (3) Only one Residents Committee may be established in a village, and only a resident of the village may be a member of the Committee.
(1) The operator of a retirement village must hold, in each financial year of the retirement village, an annual management meeting of the residents of the retirement village in accordance with this section. Maximum penalty—20 penalty units. (2) The annual management meeting must be held not more than 4 months after the end of each financial year. (3) The annual management meeting must be chaired by—
(a) the operator of the retirement village, or (b) a representative of the operator of the retirement village who is authorised to answer questions put at the meeting in accordance with this section. (4) The operator must notify the residents of the retirement village at least 14 days before the annual management meeting of—
(a) the time of the meeting, and (b) the place at which the residents may attend the meeting in person, and (c) if the residents may attend the meeting by electronic means—details of how the residents can attend and participate in the meeting using the means, and (d) the agenda for the meeting. Maximum penalty—20 penalty units.
(1) The residents of a retirement village have the right to meet for the purpose of considering and voting on—
(a) any matter in respect of which the consent of the residents is required under this Act, and (b) any other matter affecting the management and operation of the village, and (c) any matter prescribed by the regulations.
(1) A resident of a retirement village is not obliged to attend, or vote at, any meeting of the residents of the village. (2) A person (other than a duly-appointed proxy of a resident) who is not a resident of the village (including a person who occupies residential premises in the village otherwise than under a residence right) must not attend, or remain at, a meeting of the residents unless the residents at the meeting consent to the person’s presence at the meeting.
(1) A resident of a retirement village may, from time to time, appoint a person as the proxy of the resident. (2) Any such appointment is to be made in the form and manner prescribed by the regulations.
(1) Despite any other provision of this Act, an administrator appointed under this Division may, with the consent of the Secretary—
(a) amend or revoke an approved annual budget, or (b) vary the recurrent charges payable by the residents of the retirement village, or (c) vary the services offered by the retirement village.
(1) If an approved annual budget provides for the setting aside of any part of the recurrent charges for the purpose of funding capital maintenance in a period that extends beyond the end of the financial year to which the budget relates, the operator of the retirement village must establish and maintain a capital works fund. (2) However, this section does not require that a separate fund be established in respect of each financial year. (3) A capital works fund must be held in an account with an authorised deposit-taking institution or as otherwise prescribed by the regulations.
(1) The operator of a retirement village must cause the retirement village to be insured (and remain insured) in accordance with this section. Maximum penalty—100 penalty units. (2) The village must have insurance that—
(a) covers the following—
(i) damage, (ii) costs incidental to the reinstatement or replacement of insured buildings, (iii) public liability, and (b) provides for the reinstatement of property to its condition when new.
(1) A village contract may provide that any recurrent charges payable under it—
(a) are to be varied at specified intervals (or on specified dates) according to a fixed formula (for example, in proportion to variations in the Consumer Price Index), or (b) may be varied otherwise than according to a fixed formula.
(1) This section applies to the variation of recurrent charges payable under a village contract if—
(a) the contract provides that recurrent charges are to be varied otherwise than in accordance with a fixed formula, and (b) the variation does not exceed the prescribed CPI variation. (2)
(1) This section applies to a variation of recurrent charges payable under a village contract if—
(a) the contract provides that recurrent charges are to be varied otherwise than in accordance with a fixed formula, and (b) the variation exceeds the prescribed CPI variation. Note— A provision to the effect that recurrent charges may be varied by “up to” a certain percentage is an example of such a provision. (1A) (1B) The operator of a retirement village must give the resident concerned notice in accordance with this section at least 60 days before any proposed variation. (2) The notice must—
(a) specify the amount of the proposed recurrent charges, and (b) specify the date from which it is intended that the proposed recurrent charges are to be payable, and (c) contain a brief explanation of the reasons for the proposed variation exceeding the prescribed CPI variation or the prescribed rate or amount (if any), and (c1) include details of any action taken to minimise the proposed variation in recurrent charges, and (d) state that the variation will not take effect unless the residents concerned consent to the variation or the Tribunal orders that it take effect, and (e) contain such other information as may be prescribed by the regulations.
(1) A variation does not take effect under section 106 unless—
(a) the residents whose recurrent charges will be affected by the variation consent to the variation, or (b) the Tribunal orders under section 108 that the variation take effect. (2) The residents concerned must, within 30 days after receiving a notice under section 106—
(a) meet, consider and vote on the proposed variation, and (b) advise the operator that they consent, or do not consent (as the case may be) to the variation.
(1) An operator of a retirement village may apply to the Tribunal for (and the Tribunal may make) an order in respect of a proposed variation of recurrent charges if—
(a) the consent of the residents of the retirement village is required before the proposed variation can take effect, and (b) the residents do not consent to the proposed variation under section 107.
(1) At least 60 days before the commencement of each financial year of a retirement village, or such other time as may be prescribed by the regulations, the operator of the village must supply each resident of the village with a proposed annual budget itemising the way in which the operator proposes to expend the money to be received by way of recurrent charges from the residents of the village during the financial year. Maximum penalty—100 penalty units. (2) A person who is the operator of more than one retirement village may provide a consolidated budget in relation to any 2 or more of the villages concerned, but, when providing the budget to the residents and former occupants of a particular village, must include a separate budget for that village. (3) The regulations may make provision for or with respect to—
(a) matters that must be dealt with in a proposed annual budget, and (b) matters that must not be financed by way of recurrent charges, and (c) the form that the budget is to take. (4) The budget is to be accompanied by a notice—
(a) stating that the operator of the village is required to obtain the consent of the residents before expending the money as itemised in the budget, and (b) stating further that, if the residents do not give their consent, the operator may expend the money in accordance with an order of the Tribunal, and (c) briefly explaining the reasons for any changes in expenditure from the previous financial year, and (d) stating that if any change in expenditure arises from a variation in the services or facilities provided at the village by the operator, consent to that variation must be by way of a special resolution of the residents, and (e) containing such other information as may be prescribed.
(1) The operator of a retirement village must (whether by way of a notice referred to in section 112 or otherwise) seek the consent of the residents of the village to the expenditure itemised in the proposed annual budget. Maximum penalty—100 penalty units. (2) The operator must provide such information in relation to the proposed expenditure as the Residents Committee (or, if there is no Residents Committee elected for the village, any resident) reasonably requests for the purpose of deciding whether consent should be given to the budget. (3) Without limiting subsection (2), it is reasonable for the Residents Committee or a resident to request to see quotations for any work proposed to be carried out or for any service or facility proposed to be provided.
(1) If the residents of a retirement village refuse consent to the expenditure itemised in the proposed annual budget, the operator or a resident may apply to the Tribunal for an order in respect of the expenditure proposed for the financial year concerned. (2) If an application is made under this section, the Tribunal may do one or more of the following—
(a) make interim orders allowing expenditure on all items in the proposed annual budget other than those specified under section 114 (4) (c), (b) give procedural directions to the parties to facilitate agreement between the parties concerning the proposed expenditure (including directions to prepare new costings for services and to meet and discuss disputed matters), (c) make recommendations to the parties about the proposed expenditure (including recommendations about the cost and type of the services to be provided), (d) order that the expenditure is to be as itemised in the proposed annual budget, (e) order that there is to be no expenditure, or reduced or increased expenditure, on any particular item in the proposed annual budget, (f) order that there is to be expenditure in a specified amount on an item that does not appear in the proposed annual budget, (g) order that the expenditure is to be as specified in the order, (h) determine liability for expenses (if any) incurred from the commencement of the financial year to which the proposed annual budget relates until the date on which an order under paragraph (d), (e), (f) or (g) is made, (i) make any other order prescribed by the regulations for the purpose of this section.
(1) A proposed annual budget is taken to be an approved annual budget if—
(a) the residents of a retirement village consent to expenditure in accordance with the proposed annual budget, or (b) the Tribunal orders that the expenditure of the operator is to be as itemised in the proposed annual budget.
(1) The operator of a retirement village may seek the consent of the residents to amend an approved annual budget except if—
(a) the budget is taken to be an approved annual budget because of section 116 (1) (b), or (b) the budget is a proposed annual budget modified in accordance with an order of the Tribunal as referred to in section 116 (2).
Note— Section 189B enables the Secretary to issue guidelines to assist operators in complying with their obligations under this Subdivision. The Tribunal may take guidelines into account in determining whether there has been compliance with this Subdivision.
(1) The operator of a retirement village must seek the consent of the residents of the village to the appointment of a person who is a qualified auditor as the auditor of the accounts of the village in the following way—
(a) the appointment consent may be sought together with the consent for a proposed annual budget (or an amended annual budget) or separately, (b) the operator must give each resident a written notice (a consent request notice ) stating the following—
(i) the name of the person proposed for appointment, (ii) the qualifications of the person, (iii) the address of the person, (iv) the proposed period of appointment, (c) if audit fees are to be paid by the residents, the fees must be included in the consent request notice and itemised in the proposed annual budget (if any), (d) the consent request notice may be included in the notice required by section 112 (4) if the appointment consent is sought together with the consent for a proposed annual budget (or an amended annual budget), (e) if the appointment consent is sought together with the consent for a proposed annual budget (or an amended annual budget), the appointment consent must be sought by means of a separate vote to the consent for the budget. (2) The consent must be sought each calendar year unless consent is given for a longer period of appointment (not exceeding 3 years).
(1) An operator of a retirement village who does not agree to the appointment as an auditor of an alternative person proposed under section 118C by the residents of the village may apply to the Tribunal to resolve the dispute over who should be appointed as the auditor.
(1) Within 4 months, or such other period as may be prescribed by the regulations, after the end of a financial year of a retirement village, the operator of the village must provide the residents of the village with copies of the audited accounts for that financial year in accordance with this section. Maximum penalty—50 penalty units. (2) The audited accounts must include (but are not limited to)—
(a) the following particulars—
(i) details of the income and expenditure of the village during the financial year, including income and expenditure of the capital works fund (if any), (ii) details of the balance of the capital works fund (if any), (iii) details of amounts received for insurance claims made in respect of any matter referred to in section 100 (2) (a) (i) or (ii) relating to the village during the financial year, (iv) details of any interests, mortgages and other charges affecting the property of, or forming part of, the village (other than property or premises owned by residents of the village) as at the end of the financial year, and (b) a statement that—
(i) specifies whether or not money payable by the village operator to former residents during the financial year concerned was paid in full and on time, and, (ii) specifies, if any money so payable has not been paid, the amount concerned, details of the delay and the reasons for the delay, and (iii) contains the matters required to be included by subsection (3), and (iv) gives details of any matters that may prevent the village operator from meeting those liabilities, and (c) such other matters as may be prescribed by the regulations.
(1) Despite section 118A, the operator of a retirement village is not required to have the accounts of the retirement village audited if—
(a) the total of the recurrent charges collected in respect of the village in the financial year to which the accounts relate does not exceed $50,000 or such other amount as may be prescribed by the regulations, and (b) the residents have consented to the operator not having the accounts of the village audited and that consent is in force.
(1) Any surplus in the annual accounts of a retirement village is to be carried forward to the accounts for the next financial year unless—
(a) the residents of the village consent to a proposal for the expenditure of the whole or any part of the surplus, or (b) the residents of the village consent to a proposal that the operator distribute the whole or any part of the surplus (the distributable amount ) to the existing residents of the village as follows—
(i) by allocating a per-premises amount to each existing residential premises in the village, (ii) by distributing the per-premises amount allocated to each existing residential premises equally between the existing residents of the premises.
(1) A deficit is to be made good by the operator of the retirement village.
(1) A resident of a retirement village may apply directly to the Tribunal for an order in relation to any village contract (being a contract to which the resident is a party) that the resident considers to be harsh, oppressive, unconscionable or unjust.
(1) A residence right arising from a contract relating to residential premises in respect of which the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) terminates on whichever occurs first—
(a) the completion of the sale of the premises, or (b) if an exit entitlement order is made by the Secretary in relation to the premises under section 182AC—the date on which the operator pays the resident the amount required under the order.
(1) If residential premises in a retirement village are, otherwise than as a result of a breach of a village contract, destroyed or rendered wholly or partly uninhabitable or cease to be lawfully usable for the purpose of a residence or are appropriated or acquired by any authority by compulsory process, the resident or the operator of the village may give immediate notice of termination to the other party to the residence contract relating to the premises concerned (unless the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the premises). Note— The operator and the resident may choose not to terminate the contract. However, recurrent charges payable in respect of the premises abate according to the degree to which the premises are uninhabitable—see section 111. (2) A notice of termination under this section may specify any date as the date on which the resident is to vacate the residential premises.
(1) The operator of a retirement village or a resident of the village may apply to the Tribunal for an order terminating the residence contract of the resident if the operator or resident concerned is of the opinion that residential premises occupied by the resident are unsuitable for occupation by that resident because of his or her physical or mental incapacity. (2) The Tribunal may, on application under this section, make an order terminating the residence contract, but only if—
(a) it is of the opinion that the residential premises occupied by the resident are unsuitable for occupation by the resident because of the resident’s physical or mental incapacity, and (b) having considered the circumstances of the case, it is of the opinion that it is otherwise appropriate to make an order terminating the residence contract.
(1) A resident of a retirement village who is temporarily absent from the village for a period of at least 28 days is not liable to pay, in respect of the remainder of that period of absence, recurrent charges for optional services.
(1) Any departure fee is payable to the operator of the retirement village.
(1) This section does not apply to or in respect of a former occupant who is, or was, a registered interest holder in respect of his or her residential premises. (2) A former occupant of a retirement village must, allowing for any renovations or alterations to fixtures or fittings made with the consent of the operator under section 41A, leave his or her residential premises as nearly as possible in the same condition (fair wear and tear excepted) as the premises were in at the beginning of the residence contract.
(1) A resident of a retirement village may—
(a) set the sale price of his or her residential premises in the village, and (b) appoint a selling agent of the resident’s choice (who may be the operator of the village if the operator is eligible to be appointed). Note— In accordance with the , the selling agent must be licensed as a real estate agent under that Act. Matters such as the form of the agency agreement (which must be in writing), the termination of the selling agent’s appointment and the payment of commission are dealt with under that Act. Property and Stock Agents Act 2002 (2) If the operator is appointed under subsection (1), the resident may also (but is not obliged to) allow the operator to set the sale price of the premises.
(1) A resident of a retirement village who sells residential premises in the village and the operator of the village are to share the costs of the sale in the same proportion (if any) as they are to share any capital gains on the sale in accordance with a village contract.
(1) A resident of residential premises in a retirement village may let (or, in the case of a resident referred to in section 7 (1) (c), sublet) the premises under a residential tenancy agreement in accordance with this Division. Note— As a consequence of section 8 (d), a resident or former occupant may retain possession of residential premises (ie they are not required to hand over the keys to the operator) in order to enable the premises to be let or sublet. (2) Any residential tenancy agreement under this Division—
(a) must be in the form prescribed under the , and Residential Tenancies Act 2010 (b) must not be for a term that, together with any option to renew, exceeds 3 years. Note— A residential tenancy agreement under this Division is subject to the . The tenant is not a Residential Tenancies Act 2010 resident of the retirement village.
(1) On application under section 174, the Tribunal is to determine whether the operator’s decision not to consent to the residential tenancy agreement concerned is reasonable in the circumstances, having regard to—
(a) whether the residential premises concerned are suitable for occupation by the proposed tenant or subtenant, having regard to his or her physical and mental capacity, and (b) any other factor that the Tribunal considers relevant.
Note— This section deals with payments to such former occupants of residential premises following the sale of the premises. The sale of premises includes—
(a) in the case where the former occupant was the registered proprietor of land, the owner of a lot in a strata scheme or the proprietor of a lot in a community land scheme and as such had a residence right in respect of residential premises—the sale of that land or interest in that land, and (b) in the case where the former occupant was the owner of shares in a company title scheme that gave rise to a residence right in respect of residential premises— the sale of that residence right (see section 4 (3)), and (c) in the case where the former occupant’s residence contract was in the form of a registered long term lease that included a provision that entitled the former occupant to at least 50% of any capital gain—the sale of that residence right (see section 150). (1) This section applies to a former occupant of residential premises in a retirement village who is, or was, a registered interest holder in respect of the premises. (1A) However, this section does not apply to a former occupant of residential premises in a retirement village who is, or was, a registered interest holder in respect of the premises if the Secretary makes an exit entitlement order for the former occupant under section 182AC.
(1) This section applies to a former occupant of residential premises in a retirement village who is not, or was not, a registered interest holder in respect of the residential premises concerned. (2) The date on which the operator of a retirement village must make any refund of the former occupant’s ingoing contribution that is required, under a village contract, to be made is—
(a) the date that is 14 days after the date on which the operator receives full payment under the residence contract of an incoming resident of the premises, or (b) the date that is 14 days after the date on which the operator enters into a residential tenancy agreement with an incoming tenant of the premises, or (c) the date that is 14 days after the date on which a person takes up residence in the premises with the consent of the operator, or (d) if the Tribunal terminated the residence contract—the date that is one month after the date of the termination, or (e) if the former occupant delivered up vacant possession of the premises to the operator after receiving notice of the operator’s intention to apply to the Tribunal for an order terminating the residence contract—the date that is one month after the date on which vacant possession was delivered, or (f) the date that is 6 months after the date on which the former occupant otherwise delivered up vacant possession of the premises to the operator, whichever date occurs first, or such earlier date as the operator and the former occupant may agree (unless the contract between the operator and the former occupant provides for earlier payment). Maximum penalty—50 penalty units. (3) Any other payment that is required, under a village contract, to be made to the former occupant, being an amount that is dependent on the amount of the ingoing contribution of the incoming resident of the premises, is to be paid to the former occupant within 14 days after the earlier of—
(a) the payment, under a village contract, of any money to the operator, by that incoming resident, or (b) the incoming resident’s taking up residence in the premises. Note— A contract may provide that the resident, when he or she permanently vacates his or her residential premises in the village, is to receive a refund of a fixed amount of the resident’s ingoing contribution plus a share of any capital gains (that is, any greater amount of ingoing contribution payable by the incoming resident compared with the ingoing contribution paid by the former occupant). The refund of the ingoing contribution must be paid by the time specified in subsection (2), while the share of capital gains (if any) must be paid by the time specified in subsection (3).
(1) This section applies to a former occupant of residential premises in a retirement village who—
(a) is, or was, a registered interest holder in respect of the premises, and (b) has not been paid any part of the former occupant’s exit entitlement by way of an accommodation payment under section 182AG. (2) However, this section applies to a former occupant who has been paid any part of the former occupant’s exit entitlement by way of an accommodation payment under section 182AG only if the former occupant’s residential premises have not sold within 2 years after the date on which the former occupant first entered the aged care facility to which the payment relates. (3) A former occupant may, if the residential premises are not sold within the prescribed period, apply to the Secretary for an order directing the operator of the retirement village to pay the exit entitlement to the former occupant (an exit entitlement order ).
(1) The Secretary may make an exit entitlement order for a former occupant of residential premises who applies to the Secretary under section 182AB. (2) However, the Secretary must not make an exit entitlement order if the Secretary is satisfied by the operator to whom the application relates that the operator has not unreasonably delayed the sale of the residential premises.
(1) The Secretary may, on application by an operator of a retirement village, approve a period longer than the period prescribed for the purposes of paragraph (a) of the definition of prescribed period in section 182AB(9).(2) An application is to be made in a form approved by the Secretary.
(1) This section applies to a former occupant of residential premises in a retirement village who is, or was, a registered interest holder in respect of the premises if—
(a) the former occupant has entered an aged care facility after permanently vacating the premises, or proposes to enter an aged care facility, and (b) the former occupant has not received a part of the prescribed component of the former occupant’s exit entitlement, and (c) the premises have not been sold.
(1) An operator of a retirement village who is requested to make an accommodation payment on behalf of a former occupant under section 182AF must make the accommodation payment to the approved provider of the aged care facility in which the former occupant resides or proposes to reside. (2) The operator must make the first accommodation payment—
(a) for a former occupant who proposes to enter an aged care facility—at least 28 days before the date on which the former occupant proposes to enter the aged care facility, or (b) for a former occupant who has entered an aged care facility—within 28 days after the former occupant’s request under section 182AF.
(1) A former occupant and an operator of a retirement village who cannot agree on an estimate of the value of the former occupant’s residential premises for the purposes of Division 2 must have the value determined by an independent valuer under this section. (2) The independent valuer—
(a) must have appropriate experience or expertise, and (b) must not have a pecuniary or other interest that could be reasonably regarded as capable of affecting the independent valuer’s ability to determine the value of the residential premises in good faith.
(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence. (2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.
(1) The Secretary may authorise publication of a notice warning persons of particular risks involved in dealing with a specified operator of a retirement village or with a person who appears to be the operator of a retirement village. (2) For example, a notice may relate to the risks involved in dealing with an operator or person who has a history of unconscionable conduct in the operator’s or person’s dealings with consumers.
(1) An investigator may exercise the powers conferred by this section for the purposes of—
(a) ascertaining whether the provisions of this Act or the regulations are being complied with or have been contravened, or (b) investigating a complaint made under this Act, or (c) obtaining evidence, documents or information in relation to a matter that constitutes or may constitute a contravention of this Act or the regulations.
(1) The residents of a retirement village are not liable to pay any costs incurred by the operator (or that the operator expects to incur) in obtaining legal advice, or undertaking legal proceedings, in relation to the village unless—
(a) the costs appear in the approved annual budget, or (b) in the case of legal advice obtained—section 31 applies.
(1) The provisions of this Act and the regulations have effect despite any stipulation to the contrary in any agreement, contract or arrangement, and no agreement, contract or arrangement, whether oral or wholly or partly in writing, and whether made or entered into before or after the commencement of this section, operates to annul, vary or exclude any of the provisions of this Act or the regulations.
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(1) During the prescribed period, the Minister may, by order published in the Gazette, exempt any of the following from a specified provision of this Act or the regulations—
(a) a retirement village or a class of retirement villages, (b) a resident of a retirement village or a class of residents, (c) an operator of a retirement village or a class of operators, (d) the Secretary. Note— Power to make an order includes power to amend or repeal the order—see section 43(2) of the . Interpretation Act 1987 (2) An exemption granted under this section is subject to any conditions specified in the order.
(Section 9)
(Section 207)