Retirement Villages Act 1999


Queensland Crest
Retirement Villages Act 1999
Queensland Retirement Villages Act 1999 Current as at [Not applicable] Indicative reprint note This is an unofficial version of a reprint of this Act that incorporates all proposed amendments to the Act included in the Health and Other Legislation Amendment Bill 2018. This indicative reprint has been prepared for information only— it is not an authorised reprint of the Act . Some enacted but uncommenced amendments included in the Housing Legislation (Building Better Futures) Amendment Act 2017 No. 42 have also been incorporated in this indicative reprint. The point-in-time date for this indicative reprint is the introduction date for the Health and Other Legislation Amendment Bill 2018—13 November 2018. Detailed information about indicative reprints is available on the Information page of the Queensland legislation website.
© State of Queensland 2018 This work is licensed under a Creative Commons Attribution 4.0 International License.
Not authorised —indicative only Queensland Retirement Villages Act 1999 Contents Part 1 Division 1 1 2 Division 2 3 3A Division 3 4 5 6 7 8 9 10 11 11A 12 14 15 16 17 18 18A 18B 19 20 Page Preliminary Introduction Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Objects of Act and relationship with FTI Act Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Relationship with Fair Trading Inspectors Act 2014 . . . . . . . . . . 12 Interpretation and basic concepts Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 What is a retirement village . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 What is retirement village land . . . . . . . . . . . . . . . . . . . . . . . . . . 13 What is a retirement village scheme . . . . . . . . . . . . . . . . . . . . . . 14 Who is a retirement village scheme operator . . . . . . . . . . . . . . . 14 Who is a resident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 What is a residence contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 What is an existing residence contract . . . . . . . . . . . . . . . . . . . . 16 What is freehold property of a resident or former resident . . . . . 16 What is a service agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 What is an ingoing contribution . . . . . . . . . . . . . . . . . . . . . . . . . . 17 What is an exit fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 What is an exit entitlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 What is a capital replacement fund . . . . . . . . . . . . . . . . . . . . . . . 19 What is a capital replacement fund contribution . . . . . . . . . . . . . 19 What is a general services charges fund . . . . . . . . . . . . . . . . . . 19 What is a general services charge . . . . . . . . . . . . . . . . . . . . . . . 19 What is a maintenance reserve fund . . . . . . . . . . . . . . . . . . . . . . 19 What is a maintenance reserve fund contribution . . . . . . . . . . . . 20
Not authorised —indicative only Retirement Villages Act 1999 Contents 21 22 Division 4 23 24 25 26 Part 2 Division 1 27 28 28A 29 34 Division 2 35 Division 3 38 38A 39 Division 4 40 40A 40B 40C 40D 40E 40F 40G 40H 41 41A Division 5 41B What is a retirement village dispute . . . . . . . . . . . . . . . . . . . . . . 20 What is a retirement village issue . . . . . . . . . . . . . . . . . . . . . . . . 20 Operation of Act Application of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Application of Body Corporate and Community Management Act 1997 21 Application of Fair Trading Act 1989 . . . . . . . . . . . . . . . . . . . . . . 21 Certain age restrictions on residence not unlawful . . . . . . . . . . . 21 Retirement village schemes Registration Application for registration of a retirement village scheme . . . . . 22 Registration of retirement village scheme . . . . . . . . . . . . . . . . . . 23 Deregistration of retirement village scheme . . . . . . . . . . . . . . . . 24 Application to QCAT for review . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Offence to operate etc. an unregistered retirement village scheme 25 Retirement village scheme register Retirement village scheme register . . . . . . . . . . . . . . . . . . . . . . . 26 Chief executive may apply for court orders Chief executive may apply for order appointing a manager of a retirement village . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Management and administration of retirement village scheme by manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Additional power of chief executive to seek an order . . . . . . . . . 28 Cancelling registration of retirement village Definition for division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Notice about cancelling registration . . . . . . . . . . . . . . . . . . . . . . 29 Requirement to prepare closure plan . . . . . . . . . . . . . . . . . . . . . 29 Meaning of closure plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Approval of closure plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Revision of approved closure plan . . . . . . . . . . . . . . . . . . . . . . . 33 Requirement to implement approved closure plan . . . . . . . . . . . 34 Discontinuing closure of retirement village scheme . . . . . . . . . . 34 Applying to cancel registration . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Cancelling registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Application to tribunal for review . . . . . . . . . . . . . . . . . . . . . . . . . 35 Change of scheme operator Definitions for division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Page 2
41C 41D 41E 41F 41G 41H 41I 41J Part 3 Division 1 42 Division 2 43 44 45 45A 46 47 Division 3 48 49 50 Division 4 51 52 53 53A 54 55 Division 5 56 57 Retirement Villages Act 1999 Contents Notice about change of scheme operator . . . . . . . . . . . . . . . . . . 36 Requirement to prepare transition plan . . . . . . . . . . . . . . . . . . . . 36 Meaning of transition plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Approval of transition plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Revision of approved transition plan . . . . . . . . . . . . . . . . . . . . . . 38 Requirement to implement approved transition plan . . . . . . . . . . 39 Discontinuing change of scheme operator . . . . . . . . . . . . . . . . . 40 Effect of change of scheme operator . . . . . . . . . . . . . . . . . . . . . 40 Residence contracts Purpose and intention of part Purpose and intention of part . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 General Scheme operator may enter into residence contract only if scheme is registered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Person signing residence contract to be given copy . . . . . . . . . . 42 Form and content of residence contract . . . . . . . . . . . . . . . . . . . 42 Scheme operator to give notice of end of cooling-off period in particular circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Dealing with ingoing contribution . . . . . . . . . . . . . . . . . . . . . . . . . 44 Dealing with instruments assigning property under a residence contract 46 Rescinding residence contracts Residence contract may be rescinded during cooling-off period . 47 Reassignment of property acquired in cooling-off period . . . . . . 47 Scheme operator to compensate assignor if property assigned in cooling-off period is not reassigned . . . . . . . . . . . . . . . . . . . . . . . 48 Terminating right to reside Definition for div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Termination by resident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Termination by scheme operator . . . . . . . . . . . . . . . . . . . . . . . . . 50 How to work out particular exit fee for a residence contract . . . . 51 Resident may ask for estimate statement of resident’s exit entitlement 52 Right to reside in a retirement village terminates automatically on resident’s death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Reselling and valuing resident’s right to reside Interpretation for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Application of div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Page 3 Not authorised —indicative only
Retirement Villages Act 1999 Contents Not authorised —indicative only 58 59 59A 60 63 63A 63B 63C 63D 63E 63F 63G 63H 63I 64 65 66 67 67A 68 69 70 70A 70AB 70AC 70AD Division 5A 70B Division 6 71 72 73 Part 4 74 Page 4 Reinstatement of accommodation unit . . . . . . . . . . . . . . . . . . . . 54 When reinstatement work must be completed . . . . . . . . . . . . . . 55 Renovation work by scheme operator . . . . . . . . . . . . . . . . . . . . . 56 Scheme operator and former resident to agree on resale value of accommodation unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 When former resident’s exit entitlement payable . . . . . . . . . . . . 57 Scheme operator must enter into and complete contract to purchase freehold property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Timing of purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Contract requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Purchase price of freehold property . . . . . . . . . . . . . . . . . . . . . . 62 Contract may require reimbursement of scheme operator’s legal costs 63 No sales commission payable on mandatory buyback . . . . . . . . 64 Exit fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Relative residing in unit under s 70B . . . . . . . . . . . . . . . . . . . . . . 64 Non-application of particular legislation to contract . . . . . . . . . . . 64 Units not sold within 6 months . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Scheme operator to tell resident of all offers for accommodation unit 65 Working out exit entitlements . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Updating agreed resale value every 3 months . . . . . . . . . . . . . . 66 Updating agreed resale value if exit entitlement is payable before right to reside is sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Costs of selling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Limited ground for scheme operator to refuse to accept offer . . . 68 Valuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Valuer’s independence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Submissions to valuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Matters to be considered by valuers . . . . . . . . . . . . . . . . . . . . . . 70 Valuer may require information from scheme operator . . . . . . . . 71 Relative’s right to reside Relative’s right to reside after death or vacation . . . . . . . . . . . . . 72 Enforcing residence contracts Enforcing residence contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Restriction on enforcing residence contract . . . . . . . . . . . . . . . . 74 Limit on scheme operator’s liability for breach of residence contract 74 Other documents relating to retirement village schemes Village comparison documents . . . . . . . . . . . . . . . . . . . . . . . . . . 75
75 76 77 84 85 86 86A Part 5 Division 1 87 88 88A 88AA 88B Division 2 89 Division 3 90 90A 90B 90C 90D 90E Division 4 91 92 93 94 95 96 Division 5 97 98 Retirement Villages Act 1999 Contents Prospective costs documents . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Condition reports at start of residency . . . . . . . . . . . . . . . . . . . . . 77 Condition reports at end of residency . . . . . . . . . . . . . . . . . . . . . 79 Relevant information documents to be given to prospective residents 80 Access to operational documents by residents and prospective residents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Misleading or deceptive conduct . . . . . . . . . . . . . . . . . . . . . . . . . 82 Scheme website . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Operation of schemes for, and management of, retirement villages Operator and employees of village Definitions for div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Persons prohibited from operating a retirement village scheme etc. 84 Investigations about scheme operators etc. . . . . . . . . . . . . . . . . 85 Costs of criminal history report . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Confidentiality of criminal history . . . . . . . . . . . . . . . . . . . . . . . . . 86 Exercise of power of attorney by scheme operator Power of attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Capital improvement Responsibility for capital improvement of retirement village . . . . 87 Responsibility for capital improvement of resident’s accommodation unit 88 Residents jointly responsible for capital improvements requested at residents meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Responsibility of former resident for capital improvement . . . . . . 88 Quotes for capital improvements . . . . . . . . . . . . . . . . . . . . . . . . . 89 Money received for capital improvement . . . . . . . . . . . . . . . . . . . 89 Capital replacement fund Capital replacement fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Amount of capital replacement fund . . . . . . . . . . . . . . . . . . . . . . 92 Capital replacement fund budget . . . . . . . . . . . . . . . . . . . . . . . . 93 Payments into capital replacement fund . . . . . . . . . . . . . . . . . . . 94 Restriction on investing capital replacement fund amounts . . . . 95 Resident liable for replacing certain capital items . . . . . . . . . . . . 95 Maintenance reserve fund Maintenance reserve fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Amount of maintenance reserve fund . . . . . . . . . . . . . . . . . . . . . 97 Page 5 Not authorised —indicative only
Retirement Villages Act 1999 Contents Not authorised —indicative only 99 100 101 Division 6 102 Division 7 102AA 102A 103 104 105 106 107 107A 108 Division 8 109 110 Division 9 111 112 112A 113 113A Division 10 113B 113C 113D 113E 113F 113G 113H 113I 113J Page 6 Maintenance reserve fund budget . . . . . . . . . . . . . . . . . . . . . . . . 98 Payments into maintenance reserve fund . . . . . . . . . . . . . . . . . . 100 Restriction on investing maintenance reserve fund amounts . . . 100 Charges for personal services Charges for personal services for former residents . . . . . . . . . . 100 General services charges fund General services charges fund . . . . . . . . . . . . . . . . . . . . . . . . . . 101 General services charge budget . . . . . . . . . . . . . . . . . . . . . . . . . 101 Working out and paying general services charges for residents . 102 Working out and paying general services charges and maintenance reserve fund contributions for former residents . . . . . . . . . . . . . . 103 General services charges and maintenance reserve fund contributions for unsold right to reside in accommodation units . . . . . . . . . . . . 105 Increasing the total general services charge . . . . . . . . . . . . . . . . 105 Allowable increase in total general services charge . . . . . . . . . . 107 Considering more cost-effective alternative services . . . . . . . . . 107 New services to be approved by majority of residents . . . . . . . . 107 Insurance Definitions for div 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Scheme operator must insure village . . . . . . . . . . . . . . . . . . . . . 109 Financial accounts and statements Scheme operator must keep separate accounts for general services charges fund, capital replacement fund and maintenance reserve fund 110 Quarterly financial statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Explanation of increase in general service charge . . . . . . . . . . . 111 Annual financial statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Classification of expenditure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Redevelopment of retirement villages Definition for division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Requirement to prepare redevelopment plan . . . . . . . . . . . . . . . 114 Meaning of redevelopment plan . . . . . . . . . . . . . . . . . . . . . . . . . 115 Approval of redevelopment plan . . . . . . . . . . . . . . . . . . . . . . . . . 115 Revision of approved redevelopment plan . . . . . . . . . . . . . . . . . 118 Requirement to implement approved redevelopment plan . . . . . 119 Discontinuing running redevelopment of retirement village . . . . . 119 Application to tribunal for review . . . . . . . . . . . . . . . . . . . . . . . . . 119
Part 6 Division 1 114 Division 2 115 116 117 118 119 Division 3 120 121 122 Division 4 123 124 125 Division 5 126 Part 7 Division 1 127 128 129 129A 129B Division 2 130 Division 3 131 132 Division 4 133 Part 8 134 Retirement Villages Act 1999 Contents Statutory charges over retirement village land Preliminary Application of pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Creating a statutory charge, its effect and priority Definition for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Creating a charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Charge extends to new land . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Effect of charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Priority of charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Enforcing a statutory charge Enforcing a charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Orders court may make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Effect of court order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Extinguishing and releasing a statutory charge Extinguishing a charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Scheme operator may ask for release of charge if land stops being retirement village land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Chief executive to release charge . . . . . . . . . . . . . . . . . . . . . . . . 126 Exemption from charges Exemption from charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Residents participation Residents committee Residents committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Residents constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Committee’s function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Minutes of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Residents committee may require scheme operator to attend meeting about budgets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 By-laws Residents may make, change or revoke by-laws . . . . . . . . . . . . 130 Residents meetings Annual meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Other meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Voting Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Rights and obligations of scheme operator, residents and others Purpose and enforceability of part . . . . . . . . . . . . . . . . . . . . . . . . 133 Page 7 Not authorised —indicative only
Not authorised —indicative only Retirement Villages Act 1999 Contents 135 136 Part 9 Division 1 153 154 Division 2 155 156 Division 3 157 158 159 160 161 162 163 164 165 Part 10 Division 2 167 Division 3 169 170 171 171A Division 4 173 Division 5 174 Part 11 Division 2 191 Scheme operator to respect rights of residents . . . . . . . . . . . . . . 133 Residents to respect rights of others . . . . . . . . . . . . . . . . . . . . . . 135 Dispute resolution Preliminary Parties’ rights under this part preserved . . . . . . . . . . . . . . . . . . . 136 Preliminary negotiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Mediators Mediator’s function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Matters that may be mediated . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Mediation of retirement village disputes Notice of retirement village dispute . . . . . . . . . . . . . . . . . . . . . . . 137 Registrar to act on dispute notice . . . . . . . . . . . . . . . . . . . . . . . . 138 Right of representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Conference to be held in private . . . . . . . . . . . . . . . . . . . . . . . . . 138 Parties’ attendance at conference not compellable . . . . . . . . . . . 138 Parties to mediation conference . . . . . . . . . . . . . . . . . . . . . . . . . 139 Mediation agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 No official record of mediation conference . . . . . . . . . . . . . . . . . 139 Withdrawal of dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Applications to tribunal Applications about retirement village disputes Application for reference of dispute . . . . . . . . . . . . . . . . . . . . . . . 140 Applications about other retirement village issues Resident’s right to apply for an order if threatened with removal, deprivation or restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Resident may apply for order if scheme operator contravenes particular provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Former resident may apply for order for payment of exit entitlement 142 Operator may apply for extension of time for payment of exit entitlement or mandatory buyback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Group applications Application to tribunal by group of residents . . . . . . . . . . . . . . . . 143 Representation Who may represent a resident before the tribunal . . . . . . . . . . . 143 Tribunal hearings of retirement village issues Tribunal orders Tribunal orders generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Page 8
192 193 194 195 Part 12 209 210 Part 13 Division 2 215 Part 14 219 220 221 222 223 224 225 227 227AA 227A 228 Part 15 Division 1 229 230 231 232 233 234 235 236 237 Division 2 Retirement Villages Act 1999 Contents Tribunal orders under section 169 . . . . . . . . . . . . . . . . . . . . . . . . 144 Tribunal orders under section 170 . . . . . . . . . . . . . . . . . . . . . . . . 145 Tribunal orders under section 171 . . . . . . . . . . . . . . . . . . . . . . . . 145 Tribunal order under section 171A(1)(a) . . . . . . . . . . . . . . . . . . . 146 The tribunal Tribunal’s function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Tribunal’s jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Other provisions for mediation conferences and tribunal hearings General Exclusion of other jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Miscellaneous Starting offence proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Appointments and authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Evidentiary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Act’s remedies not exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Responsibility for acts or omissions of representatives . . . . . . . . 150 Review of operation of s 63(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . 151 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Requirements about approved forms for residence contracts and other documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Delegation of chief executive’s powers . . . . . . . . . . . . . . . . . . . . 152 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 Transitional and savings provisions Transitional provisions for Act No. 71 of 1999 Existing retirement village schemes . . . . . . . . . . . . . . . . . . . . . . 152 Existing exempt organisations and retirement villages . . . . . . . . 153 Releasing certain existing charges . . . . . . . . . . . . . . . . . . . . . . . 154 Apportionment of balance where separate funds maintained . . . 155 Apportionment of balance where single fund maintained for maintenance and repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Apportionment of balance where single fund maintained for capital replacement and maintenance and repairs . . . . . . . . . . . . . . . . . 156 Existing regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Existing by-laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Retirement Villages Act 1988 references . . . . . . . . . . . . . . . . . . 157 Transitional provisions for Retirement Villages Amendment Act Page 9 Not authorised —indicative only
Not authorised —indicative only Retirement Villages Act 1999 Contents 237A 237B 237C 237D 237E 237F 237G Division 3 237H 237I 237J 237K 237L 237M 237N 237O 237OA 237P Division 4 237Q 237R Part 16 238 Schedule 2006 Exit fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 Notice about inaccuracy in public information document . . . . . . 157 Notice of end of cooling-off period . . . . . . . . . . . . . . . . . . . . . . . . 158 Reinstatement work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Budgets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 General services charges for former residents . . . . . . . . . . . . . . 159 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Transitional provisions for Housing Legislation (Building Better Futures) Amendment Act 2017 Definitions for division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Continued operation of public information documents and particular former provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Approved form of public information documents . . . . . . . . . . . . . 163 Continued operation of former provisions relating to reinstatement work 163 Village comparison documents . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Prescribed period for repayment of exit entitlement . . . . . . . . . . 164 Updating agreed resale value . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Quarterly financial statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Non-application of pt 2, div 5 to existing contracts . . . . . . . . . . . 165 Transitional regulation-making power . . . . . . . . . . . . . . . . . . . . . 165 Transitional provisions for Health and Other Legislation Amendment Act 2018 Timing of mandatory buyback . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Transitional regulation-making power . . . . . . . . . . . . . . . . . . . . . 166 Repeal Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 Page 10
Retirement Villages Act 1999 Retirement Villages Act 1999 Part 1 Preliminary [s 1] An Act to provide for the establishment and operation of retirement villages, and for other purposes Not authorised —indicative only Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Retirement Villages Act 1999 . Editor’s note— Uncommenced amendments to the following provisions have been included in this indicative reprint— sections 13, 18–18B, 20, 27, 28A, 35–38A, 40-41, 44–45, 53, 56, 58-59, 61–69, 70AB–70AD, 74-86A, 93–94, 98–99, 102AA– 102A, 103–108, 111–113, 129B, 167, 170–171A, 191, 195, 221, 225, 227AA, 228 part 2 division 5 part 3 divisions 5 and 7 hdgs, division 10 part 8 part 15 division 3 schedule. See 2017 Act No. 42 ss 88–151. 2 Commencement This Act commences on a day to be fixed by proclamation. Current as at [Not applicable] Page 11
Retirement Villages Act 1999 Part 1 Preliminary [s 3] Division 2 Objects of Act and relationship with FTI Act Not authorised —indicative only 3 Objects (1) The main objects of this Act are— (a) to promote consumer protection and fair trading practices in operating retirement villages and in supplying services to residents by— (i) declaring particular rights and obligations of residents and scheme operators; and (ii) facilitating the disclosure of information to prospective residents of a retirement village to ensure the rights and obligations of the residents and scheme operator may be easily understood; and (b) to encourage the continued growth and viability of the retirement village industry in the State. (2) The following are also objects of this Act— (a) to encourage the adoption of best practice standards by the retirement village industry; (b) to provide a clear regulatory framework to ensure certainty for the retirement village industry in planning for future expansion; (c) to facilitate participation by residents, who want to be involved, in the affairs of retirement villages; (d) to provide for processes for resolving disputes between residents and scheme operators. 3A Relationship with Fair Trading Inspectors Act 2014 (1) The Fair Trading Inspectors Act 2014 (the FTI Act ) enacts common provisions for this Act and particular other Acts about fair trading. Page 12 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 1 Preliminary [s 4] (2) Unless this Act otherwise provides in relation to the FTI Act, the powers that an inspector has under that Act are in addition to and do not limit any powers the inspector may have under this Act. (3) In this section— inspector means a person who holds office under the FTI Act as an inspector for this Act. Note— See also the modifying provision for this Act stated in the FTI Act, section 8. Division 3 Interpretation and basic concepts 4 Definitions The dictionary in the schedule defines particular words used in this Act. 5 What is a retirement village (1) A retirement village is premises where older members of the community or retired persons reside, or are to reside, in independent living units or serviced units, under a retirement village scheme. (2) In this section— premises does not include a site within the meaning of the Manufactured Homes (Residential Parks) Act 2003 . 6 What is retirement village land Land is retirement village land if the land is used, or to be used, for a retirement village and, for land included in a community titles scheme within the meaning of the Body Corporate and Community Management Act 1997 , includes the lots and common property into which the land is subdivided. Current as at [Not applicable] Page 13
Not authorised —indicative only Retirement Villages Act 1999 Part 1 Preliminary [s 7] 7 What is a retirement village scheme A retirement village scheme is a scheme under which a person— (a) enters into a residence contract; and (b) in consideration for paying an ingoing contribution under the residence contract, acquires personally or for someone else, a right to reside in a retirement village, however the right accrues; and (c) on payment of the relevant charge, acquires personally or for someone else, a right to receive 1 or more services in relation to the retirement village. 8 Who is a retirement village scheme operator A person is a retirement village scheme operator if the person, alone or with someone else, controls the scheme’s operation or purports to control the scheme’s operation. 9 Who is a resident A resident of a retirement village is a person who has a right to reside in the retirement village and a right to receive 1 or more services in relation to the retirement village under a residence contract. 10 What is a residence contract (1) A residence contract is 1 or more written contracts, other than an excluded contract, about residence in a retirement village entered into between a person and the scheme operator. (2) A residence contract includes any other contract (an ancillary contract ) between the person and the scheme operator if the ancillary contract is dependent on, or arises out of, the making of the residence contract or another ancillary contract. Page 14 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 1 Preliminary [s 10] (3) Without limiting the interests that a residence contract may be based on, a residence contract may be based on a freehold interest in an accommodation unit. (4) To be a residence contract, a contract must— (a) either— (i) purport to give a person, or give rise to a person having, an exclusive right to reside in an accommodation unit in the retirement village; or (ii) provide for, or give rise to, obligations on a person in relation to the person’s or someone else’s residence in the retirement village; and (b) purport to give a person, or give rise to a person having, a right in common with other residents in the retirement village, to use and enjoy the retirement village’s communal facilities; and (c) contain or incorporate— (i) a service agreement or an agreement to enter into a service agreement that includes a copy of the service agreement; and (ii) if the contract includes an ancillary agreement that is not signed contemporaneously with the contract, an agreement to enter into the ancillary agreement that includes a copy of the ancillary agreement; and (d) restrict the way in which, or the persons to whom— (i) the right to reside in the retirement village may be disposed of during the resident’s lifetime; or (ii) if the contract is based on a freehold interest in an accommodation unit—the resident’s freehold property may be disposed of during the resident’s lifetime. Current as at [Not applicable] Page 15
Not authorised —indicative only Retirement Villages Act 1999 Part 1 Preliminary [s 11] 11 What is an existing residence contract An existing residence contract is a residence contract existing immediately before the commencement of this Act. 11A What is freehold property of a resident or former resident (1) A freehold interest in an accommodation unit is a resident’s freehold property if— (a) the freehold interest is— (i) held by the resident; or (ii) held by another person but not held directly or indirectly by the scheme operator; and Examples for subparagraph (ii)— a freehold interest in an accommodation unit held by— the trustee of a trust in which the resident holds an interest; or a corporation in which the resident holds shares; or the resident’s child or another family member (b) the resident has a right to reside in the accommodation unit. (2) A freehold interest in an accommodation unit is a former resident’s freehold property if— (a) the freehold interest is— (i) held by the former resident; or (ii) held by another person but not held directly or indirectly by the scheme operator; and (b) the former resident had a right to reside in the accommodation unit that has been terminated under this Act. Page 16 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 1 Preliminary [s 12] 12 What is a service agreement (1) A service agreement is an agreement made between a person and a scheme operator under which general services or personal services are to be supplied for or to the person or someone else when the person or other person becomes a resident of a retirement village. (2) A service agreement may be in a residence contract. 14 What is an ingoing contribution (1) An ingoing contribution is the amount payable by a person under a residence contract to secure the person’s, or someone else’s, right to reside in a retirement village, but does not include a recurrent payment for rent, fees or charges. (2) It is immaterial whether— (a) the right to reside in the village is enforceable or not; or (b) the payment alone secures the right, or something else is also required to secure it. 15 What is an exit fee (1) An exit fee is the amount that a resident may be liable to pay to, or credit the account of, a scheme operator under a residence contract arising from— (a) the resident ceasing to reside in the accommodation unit to which the contract relates; or (b) the settlement of the sale of the right to reside in the accommodation unit. (2) The exit fee for a residence contract, including an existing residence contract, that a resident may be liable to pay to, or credit the account of, the scheme operator is to be calculated as at— (a) the day the resident ceases to reside in the accommodation unit to which the residence contract relates; or Current as at [Not applicable] Page 17
Not authorised —indicative only Retirement Villages Act 1999 Part 1 Preliminary [s 16] (b) if a relative of the resident resides in the accommodation unit under section 70B(2)—the sooner of the following days— (i) the day the relative vacates the accommodation unit; (ii) the day that is 3 months after the resident’s right to reside in the accommodation unit under the residence contract is terminated under this Act. Notes— 1 Subsection (2) states the day at which the exit fee for a residence contract is to be worked out, and not the method of working out the exit fee. 2 Section 53A states how to work out the exit fee for a residence contract that is worked out under the contract having regard to the length of time the resident has resided in the unit. (3) Subsection (2) applies despite anything to the contrary in an existing residence contract. (4) In this section, a reference to a resident includes a reference to a person, other than a scheme operator, who enters into a residence contract for the purpose of giving someone else a right to reside in the retirement village. Example for subsection (4)— Mr Smith enters into a residence contract with a scheme operator which gives Mr Smith’s mother the right to reside in the retirement village. For this section, a reference to a resident includes not only Mr Smith’s mother who has a right to reside in the retirement village but also Mr Smith. 16 What is an exit entitlement (1) An exit entitlement is the amount that a scheme operator may be liable to pay to, or credit the account of, a former resident under a residence contract arising from— (a) the resident ceasing to reside in the accommodation unit to which the contract relates; or (b) the settlement of the sale of the right to reside in the accommodation unit. Page 18 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 1 Preliminary [s 17] (2) In this section, a reference to a former resident includes a reference to a person, other than a scheme operator, who enters into a residence contract for the purpose of giving someone else a right to reside in the retirement village. 17 What is a capital replacement fund A capital replacement fund is a fund established under section 91 for replacing the retirement village’s capital items. 18 What is a capital replacement fund contribution A capital replacement fund contribution is a percentage of a resident’s ingoing contribution, decided by the scheme operator and described in the resident’s residence contract as a contribution to the capital replacement fund. 18A What is a general services charges fund A general services charges fund is a fund established under section 102AA for general services. 18B What is a general services charge A general services charge is a charge payable by a resident in a retirement village, of an amount decided by the scheme operator under the resident’s residence contract, for the general services supplied to residents in the village for a financial year. 19 What is a maintenance reserve fund A maintenance reserve fund is a fund established under section 97 for maintaining and repairing the retirement village’s capital items. Current as at [Not applicable] Page 19
Retirement Villages Act 1999 Part 1 Preliminary [s 20] 20 What is a maintenance reserve fund contribution A maintenance reserve fund contribution is an amount payable by a resident to the scheme operator, under the resident’s residence contract, as a contribution to the maintenance reserve fund. Not authorised —indicative only 21 What is a retirement village dispute (1) A retirement village dispute is a dispute between a scheme operator and a resident of a retirement village about the parties’ rights and obligations under the resident’s residence contract or this Act. (2) For subsection (1), a retirement village dispute includes a dispute about compliance by a scheme operator or a resident with this Act, whether or not a particular failure to comply is an offence against this Act. (3) In this section— resident includes a former resident. Note— In some provisions of this Act there is no means of enforcement apparent on the face of the provision but enforcement by the dispute resolution process is available because of this section. 22 What is a retirement village issue A retirement village issue is— (a) a retirement village dispute; or (b) an application for an order under sections 169 to 171 or 173. Division 4 Operation of Act 23 Application of Act This Act applies to— Page 20 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 1 Preliminary [s 24] (a) a retirement village scheme, including a scheme for a retirement village to which the Body Corporate and Community Management Act 1997 applies, the scheme operator and inducements and invitations to enter into the scheme if— (i) the retirement village is, or is to be, situated in the State, irrespective of where the scheme is operated or inducements or invitations to enter into the scheme are given or published; or (ii) the scheme is operated in the State, irrespective of where the retirement village is, or is to be, situated or inducements or invitations to enter into the scheme are given or published; and (b) a residence contract entered into before or after the commencement of this section, unless this Act states otherwise. 24 Application of Body Corporate and Community Management Act 1997 If there is an inconsistency between this Act and the Body Corporate and Community Management Act 1997 in relation to a person’s rights and obligations under a retirement village scheme, this Act prevails to the extent of the inconsistency. 25 Application of Fair Trading Act 1989 This Act does not limit the application of the Fair Trading Act 1989 , including the Australian Consumer Law (Queensland) forming part of that Act, to the acquisition, under a residence contract, of goods or services, within the meaning of that Act. 26 Certain age restrictions on residence not unlawful Despite the Anti-Discrimination Act 1991 , it is not unlawful for a scheme operator to discriminate on the basis of age if the discrimination merely limits residence in a retirement village to older members of the community and retired persons. Current as at [Not applicable] Page 21
Retirement Villages Act 1999 Part 2 Retirement village schemes [s 27] Part 2 Retirement village schemes Not authorised —indicative only Division 1 Registration 27 Application for registration of a retirement village scheme (1) A person may apply to the chief executive to register a retirement village scheme. Note— See part 15 for transitional and savings provisions about existing retirement village schemes. (2) The application must be in the approved form and accompanied by— (a) particulars of the following— (i) the land on which the retirement village’s buildings and facilities are, or are to be, constructed; (ii) the accommodation units and communal facilities the scheme operator undertakes are, or are to be, available for the village when the scheme is registered; (iii) the accommodation units and communal facilities the scheme operator intends to make available for the village after the scheme is registered, depending on the sales activity, finance availability, or market conditions, for the village; (iv) the terms under which persons are, or are to be, invited to enter into the scheme under the residence contracts for the retirement village; (v) other particulars of the scheme prescribed under a regulation; and (b) a copy of the village comparison document for the scheme; and (c) the application fee prescribed under a regulation; and Page 22 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 2 Retirement village schemes [s 28] (d) if, before or when the application is made, the chief executive requires the payment of costs under section 88AA(1)—the amount of the costs required to be paid. (3) A requirement mentioned in subsection (2)(d) is sufficiently made of the applicant if it is made generally of applicants in the approved form or notified on the department’s website. 28 Registration of retirement village scheme (1) The chief executive may register, or refuse to register, a retirement village scheme for which an application for registration has been made. (2) The chief executive’s decision must be made within 60 days of the later of— (a) the day the application is received; or (b) if the particulars with the application do not conform with the requirements of section 27(2) and the chief executive asks for further particulars, the day the particulars are given. (3) The chief executive may register the scheme only if satisfied— (a) the application complies with section 27; and (b) the applicant is not prohibited from operating a retirement village scheme under section 88. (4) If the chief executive registers the scheme, the chief executive must promptly give the applicant a registration certificate, in the approved form, stating the day the scheme was registered. (5) If the chief executive refuses to register the scheme, the chief executive must promptly give the applicant a QCAT information notice for the decision. (6) If the chief executive fails to decide the application in the time required under subsection (2), the chief executive is taken to have refused the application. Current as at [Not applicable] Page 23
Retirement Villages Act 1999 Part 2 Retirement village schemes [s 28A] Note— See section 29 about applying to the tribunal to review a refusal decision made, or taken to have been made, by the chief executive under this section. Not authorised —indicative only 28A Deregistration of retirement village scheme (1) This section applies if the chief executive reasonably believes that either— (a) a scheme operator is implementing an approved closure plan for a retirement village scheme; or (b) a retirement village scheme is no longer operating. (2) The chief executive may, by written notice (a deregistration notice ) given to the scheme operator, deregister the scheme, effective from— (a) if subsection (1)(a) applies—the day that, under the approved closure plan, the scheme will stop operating; or (b) if subsection (1)(b) applies—30 days after the deregistration notice is given to the scheme operator. (3) The chief executive must also give the scheme operator a QCAT information notice for the decision. 29 Application to QCAT for review (1) A person whose application to register a retirement village scheme has been refused, or is taken to have been refused, may apply, as provided under the QCAT Act, to the tribunal for a review of the decision. (2) However, if the chief executive is taken to have refused the application under section 28, the period within which the person may apply to the tribunal for a review of the decision is 88 days after the application to register the scheme was made. (3) The scheme operator may apply, as provided under the QCAT Act, to the tribunal for a review of the chief executive’s decision to deregister a retirement village scheme. Page 24 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 2 Retirement village schemes [s 34] 34 Offence to operate etc. an unregistered retirement village scheme (1) If a retirement village scheme is not registered, the scheme operator or proposed scheme operator must not— (a) operate the scheme; or (b) induce or invite a person to participate in the scheme by— (i) residing in the retirement village to which the scheme relates; or (ii) paying an ingoing contribution; or (iii) doing another act in relation to the scheme; or (c) use a document, or publish an advertisement, to induce or invite a person to participate in the scheme by— (i) residing in the retirement village to which the scheme relates; or (ii) paying an ingoing contribution; or (iii) doing another act in relation to the scheme; or (d) extend an existing retirement village. Maximum penalty—540 penalty units. (2) However, the scheme operator or proposed scheme operator does not contravene subsection (1)(c) if the document or advertisement merely invites expressions of interest in the scheme. (3) In this section— advertisement includes an advertisement made by publishing a statement or claim— (a) in a document, including a newspaper or magazine; or (b) by broadcast, electronic telecommunication, video or film. communication, induce includes attempt to induce. Current as at [Not applicable] Page 25
Retirement Villages Act 1999 Part 2 Retirement village schemes [s 35] Division 2 Retirement village scheme register Not authorised —indicative only 35 Retirement village scheme register (1) The chief executive must keep a register for retirement village schemes. (2) The register must include the following items (the records ) for each registered scheme— (a) copies of the following documents— (i) the registration certificate; (ii) the village comparison document and notices about material changes to information in the village comparison document given under section 74(5); (iii) if former section 36 applies to the scheme operator under section 237I—the public information document and notices about inaccuracies in the public information document given under former section 36; (b) the particulars of the scheme mentioned in section 27(2)(a); (c) the annual financial statements given to the chief executive under section 113(4). (3) The records are to be kept on the register for at least 10 years. (4) A person may, on payment of the fee prescribed under a regulation— (a) inspect the register at a place or places decided by the chief executive; or (b) take extracts from, or obtain a copy of details in, the register. (5) The register may be kept in any form that allows a person to have access to it under subsection (4). (6) In this section— Page 26 Current as at [Not applicable]
former see section 237H. Retirement Villages Act 1999 Part 2 Retirement village schemes [s 38] Not authorised —indicative only Division 3 Chief executive may apply for court orders 38 Chief executive may apply for order appointing a manager of a retirement village (1) The chief executive may apply to the District Court for a management order if the chief executive reasonably believes— (a) the scheme operator has not complied with section 40A(2), 40B(1), 40F(1) or (2), 41C(2), 41D(1), 41H(1) or (2), 113D or 113H(1) or (2); or (b) the order is otherwise necessary to protect the interests of residents of a particular retirement village. (2) In urgent circumstances— (a) the application may be made ex parte; and (b) the management order may be made on an interim basis. (3) If the court makes a management order, it may, at any time, make any ancillary order it considers necessary to support the management order. (4) A manager appointed under a management order must, at the request of the chief executive, report to the chief executive about how the manager has exercised, or will exercise, functions of the scheme operator under the order. Maximum penalty—100 penalty units. (5) If a manager is appointed under a management order to exercise a function of a scheme operator, this Act applies to the exercise of the function as if the manager were the scheme operator. (6) In this section— management order means an order appointing a stated person, as manager of a retirement village, to exercise— Current as at [Not applicable] Page 27
Retirement Villages Act 1999 Part 2 Retirement village schemes [s 38A] (a) all the functions of the scheme operator; or (b) stated functions of the scheme operator; or (c) all the functions, other than stated functions, of the scheme operator. Not authorised —indicative only 38A Management and administration of retirement village scheme by manager (1) An expense incurred by a manager in, or an amount charged by a manager for, exercising functions of a scheme operator must be paid from— (a) the general services charges fund; or (b) another fund from which the scheme operator would have been able to pay the expense if the manager had not been appointed. (2) The State is not liable for— (a) an expense incurred by a manager in exercising functions of a scheme operator; or (b) any liability of a scheme operator if a manager is appointed to exercise functions of the scheme operator. (3) To remove any doubt, it is declared that the exercise of a function of a scheme operator by a manager is not a service for the purpose of section 108. (4) In this section— manager means a manager appointed under section 38. 39 Additional power of chief executive to seek an order (1) This section applies if the chief executive considers, on reasonable grounds, that a person is contravening section 34. (2) The chief executive may apply to the District Court for an order to stop the person from contravening the section. (3) The court may make any order, including an interim order, it considers appropriate. Page 28 Current as at [Not applicable]
Division 4 Retirement Villages Act 1999 Part 2 Retirement village schemes [s 40] Cancelling registration of retirement village Not authorised —indicative only 40 Definition for division In this division— residents meeting notice see section 40B(1)(b). 40A Notice about cancelling registration (1) This section applies if a scheme operator proposes to close a retirement village scheme. (2) The operator must give the chief executive notice about the proposal in the approved form. Maximum penalty—100 penalty units. (3) For subsection (1), a scheme operator proposes to close a retirement village scheme if the scheme operator proposes to— (a) wind down the retirement village scheme; or (b) stop operating the retirement village scheme, including temporarily. 40B Requirement to prepare closure plan (1) The scheme operator must, within 28 days of giving a notice under section 40A(2) (the notice period ) or any extension of the notice period granted under subsection (3), give each resident of the retirement village— (a) a proposed closure plan for the retirement village scheme; and (b) a notice (a residents meeting notice ), in the approved form, that states— (i) if the proposed closure plan is not approved under section 40D(1)(a), within a stated reasonable period that is not less than 21 days after the giving Current as at [Not applicable] Page 29
Not authorised —indicative only Retirement Villages Act 1999 Part 2 Retirement village schemes [s 40C] of the residents meeting notice, the scheme operator may apply to the chief executive for approval of the proposed closure plan under section 40D(1)(b); and (ii) if the chief executive approves the proposed closure plan under section 40D(1)(b), a resident may apply to the tribunal for a review of the decision under section 41A. Maximum penalty—100 penalty units. (2) The scheme operator may, within the notice period, apply to the chief executive for an extension of the notice period. (3) The chief executive may grant the extension if the chief executive is satisfied it is not reasonably practicable for the scheme operator to comply with subsection (1) within the notice period. 40C Meaning of closure plan (1) A closure plan , for a retirement village scheme, is a written plan about closing the retirement village scheme. (2) A closure plan for a retirement village scheme must be in the approved form and state the matters prescribed by regulation. 40D Approval of closure plan (1) A proposed closure plan may be approved— (a) by the residents, by a special resolution at a residents meeting; or (b) on application under subsection (3), by the chief executive. (2) If the proposed closure plan is approved under subsection (1)(a), the scheme operator must give the chief executive a copy of the approved closure plan within 14 days of the vote. (3) The scheme operator may apply to the chief executive for approval of a proposed closure plan if— Page 30 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 2 Retirement village schemes [s 40D] (a) the residents, by special resolution at a residents meeting, vote against the approval of the proposed closure plan; or (b) the proposed closure plan is not approved under subsection (1)(a) within the period stated in the residents meeting notice. (3A) Before deciding the application, the chief executive must— (a) give each resident of the retirement village a written notice stating that— (i) the scheme operator has applied for approval of the proposed closure plan; and (ii) the resident may make submissions to the chief executive about the proposed closure plan in a stated way and by a stated day; and (b) if a resident of the retirement village requests a copy of the proposed closure plan—give a copy of the proposed closure plan to the resident; and (c) have regard to any submissions made to the chief executive by the residents in the stated way and by the stated day. (4) After receiving an application for approval of a proposed closure plan, the chief executive must decide— (a) to approve the plan; or (b) to give the scheme operator a written direction to take action, or particular action, to revise the plan. (4A) The chief executive’s decision must be made within 90 days of the later of— (a) the day the application is received; or (b) if the chief executive reasonably requires further information for the purpose of making the decision and asks the scheme operator for the further information— the day the information is given. Current as at [Not applicable] Page 31
Not authorised —indicative only Retirement Villages Act 1999 Part 2 Retirement village schemes [s 40D] (5) The chief executive may approve the proposed closure plan only if the chief executive is satisfied the plan provides for a clear, orderly and fair process for the closure of the retirement village scheme. (6) If the chief executive approves the proposed closure plan, the chief executive must give— (a) written notice of the decision to the scheme operator; and (b) a QCAT information notice for the decision to each resident. (7) Before giving a direction under subsection (4)(b), the chief executive must— (a) give the operator a written notice stating— (i) that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the proposed closure plan (the proposed action ); and (ii) the particulars of the action to be taken; and (iii) the reasons for the proposed action; and (iv) that the operator may make written submissions to the chief executive about the proposed action before a stated day; and (b) have regard to any written submissions made to the chief executive by the operator before the stated day. (8) If the chief executive gives a direction under subsection (4)(b), the chief executive must also give the operator a QCAT information notice for the decision. (9) If the chief executive fails to decide the application in the time required under subsection (4A), the chief executive is taken to have approved the proposed closure plan. Page 32 Current as at [Not applicable]
Retirement Villages Act 1999 Part 2 Retirement village schemes [s 40E] Not authorised —indicative only 40E Revision of approved closure plan (1) The chief executive may, on the chief executive’s own initiative or on the application of the scheme operator, give the scheme operator a written direction to take action, or particular action, to revise an approved closure plan. (2) The chief executive may approve the revised closure plan only if the chief executive is satisfied the revised closure plan provides for a clear, orderly and fair process for the closure of the retirement village scheme. (3) If the chief executive approves the revised closure plan, the chief executive must give— (a) written notice of the decision to the scheme operator; and (b) a QCAT information notice for the decision to each resident. (4) Before giving a direction under subsection (1) to a scheme operator on the chief executive’s own initiative, the chief executive must— (a) give the operator a written notice stating— (i) that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the approved closure plan (the proposed action ); and (ii) the particulars of the action to be taken; and (iii) the reasons for the proposed action; and (iv) that the operator may make written submissions to the chief executive about the proposed action before a stated day; and (b) have regard to any written submissions made to the chief executive by the operator before the stated day. (5) If the chief executive gives a direction under subsection (1) to a scheme operator on the chief executive’s own initiative, the chief executive must also give the operator a QCAT information notice for the decision. Current as at [Not applicable] Page 33
Not authorised —indicative only Retirement Villages Act 1999 Part 2 Retirement village schemes [s 40F] 40F Requirement to implement approved closure plan (1) A scheme operator must, when closing a retirement village scheme, comply with an approved closure plan for the retirement village scheme. Maximum penalty—100 penalty units. (2) The scheme operator must, at the request of the chief executive, notify the chief executive about how the approved closure plan is being implemented by the scheme operator. Maximum penalty—100 penalty units. 40G Discontinuing closure of retirement village scheme (1) This section applies if— (a) a scheme operator has given a notice to the chief executive under section 40A(2); and (b) the scheme operator decides not to proceed with the closure of the retirement village scheme. (2) The operator must give the chief executive, and each resident of the retirement village, notice (a notice of discontinuation ) of the decision in the approved form. Maximum penalty—100 penalty units. (3) If the operator gives a notice of discontinuation to the chief executive, any approved closure plan, for the closure of the retirement village scheme, is no longer approved. 40H Applying to cancel registration (1) A scheme operator may ask the chief executive to cancel the registration of the retirement village scheme if the operator— (a) stops operating the scheme; or (b) proposes to stop operating the scheme. (2) The request must be written. Page 34 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 2 Retirement village schemes [s 41] 41 Cancelling registration (1) Subsection (2) applies if— (a) the scheme operator asks the chief executive to cancel the registration of the retirement village scheme under section 40H; and (b) if a statutory charge existed over the retirement village land—the chief executive has released the charge; and (c) the chief executive is satisfied— (i) the scheme operator has implemented the approved closure plan for the retirement village scheme; and (ii) cancelling the registration of the retirement village scheme is appropriate. (2) The chief executive may— (a) cancel the registration of the scheme; and (b) record the cancellation in the register. 41A Application to tribunal for review A person who has been given a QCAT information notice under this division may apply, as provided under the QCAT Act, to the tribunal for a review of the decision. Division 5 Change of scheme operator 41B Definitions for division In this division— existing scheme operator see section 41C(1). new scheme operator see section 41C(1). Current as at [Not applicable] Page 35
Not authorised —indicative only Retirement Villages Act 1999 Part 2 Retirement village schemes [s 41C] 41C Notice about change of scheme operator (1) This section applies if a scheme operator (the existing scheme operator ) proposes to transfer control of a retirement village scheme’s operation to another person (the new scheme operator ). (2) The existing scheme operator must give the chief executive notice about the proposal in the approved form. Maximum penalty—100 penalty units. 41D Requirement to prepare transition plan (1) The existing scheme operator must, within 28 days of giving a notice under section 41C(2) (the notice period ) or any extension of the notice period granted under subsection (3), give the chief executive a proposed transition plan for the change of scheme operator. Maximum penalty—100 penalty units. (2) The existing scheme operator may, within the notice period, apply to the chief executive for an extension of the notice period. (3) The chief executive may grant the extension if the chief executive is satisfied it is not reasonably practicable for the existing scheme operator to comply with subsection (1) within the notice period. 41E Meaning of transition plan (1) A transition plan , for a retirement village scheme, is a written plan about transitioning control of the scheme’s operation from the existing scheme operator to the new scheme operator. (2) A transition plan for a retirement village scheme must be in the approved form and state the matters prescribed by regulation. Page 36 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 2 Retirement village schemes [s 41F] 41F Approval of transition plan (1) After receiving the proposed transition plan, the chief executive must decide— (a) to approve the proposed transition plan; or (b) to give the existing scheme operator a written direction to take action, or particular action, to revise the proposed transition plan. (1A) The chief executive’s decision must be made within 90 days of the later of— (a) the day the proposed transition plan is received; or (b) if the chief executive reasonably requires further information for the purpose of making the decision and asks the existing scheme operator or the new scheme operator for the further information—the day the information is given. (2) The chief executive may approve the proposed transition plan only if the chief executive is satisfied the plan provides for a clear, orderly and fair process for transitioning control of the scheme’s operation from the existing scheme operator to the new scheme operator. (3) For the purpose of deciding whether or not to approve the proposed transition plan, the chief executive may— (a) give a copy of the plan to a person whom the chief executive reasonably considers has an interest in the transitioning of the control of the scheme’s operation; and (b) receive and consider submissions from the person about the transitioning of the control of the scheme’s operation. (4) If the chief executive approves the proposed transition plan, the chief executive must give— (a) written notice of the decision to the existing scheme operator and the new scheme operator; and Current as at [Not applicable] Page 37
Not authorised —indicative only Retirement Villages Act 1999 Part 2 Retirement village schemes [s 41G] (b) a QCAT information notice for the decision to each resident. (5) Before giving a direction under subsection (1)(b), the chief executive must— (a) give the operator a written notice stating— (i) that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the proposed transition plan (the proposed action ); and (ii) the particulars of the action to be taken; and (iii) the reasons for the proposed action; and (iv) that the operator may make written submissions to the chief executive about the proposed action before a stated day; and (b) have regard to any written submissions made to the chief executive by the operator before the stated day. (6) If the chief executive gives a direction under subsection (1)(b), the chief executive must also give the operator a QCAT information notice for the decision. (7) If the chief executive fails to decide whether or not to approve the proposed transition plan in the time required under subsection (1A), the chief executive is taken to have approved the proposed transition plan. 41G Revision of approved transition plan (1) The chief executive may, on the chief executive’s own initiative or on the application of the existing scheme operator, give the existing scheme operator a written direction to take action, or particular action, to revise an approved transition plan. (2) The chief executive may approve the revised transition plan only if the chief executive is satisfied the revised transition plan provides for a clear, orderly and fair process for the transitioning of the control of the scheme’s operation from the existing scheme operator to the new scheme operator. Page 38 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 2 Retirement village schemes [s 41H] (3) If the chief executive approves the revised transition plan, the chief executive must give— (a) written notice of the decision to the existing scheme operator and the new scheme operator; and (b) a QCAT information notice for the decision to each resident. (4) Before giving a direction under subsection (1) to the existing scheme operator on the chief executive’s own initiative, the chief executive must— (a) give the operator a written notice stating— (i) that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the approved transition plan (the proposed action ); and (ii) the particulars of the action to be taken; and (iii) the reasons for the proposed action; and (iv) that the operator may make written submissions to the chief executive about the proposed action before a stated day; and (b) have regard to any written submissions made to the chief executive by the operator before the stated day. (5) If the chief executive gives a direction under subsection (1) to the existing scheme operator on the chief executive’s own initiative, the chief executive must also give the operator a QCAT information notice for the decision. 41H Requirement to implement approved transition plan (1) The existing scheme operator and new scheme operator must, when transitioning control of the scheme’s operation from the existing scheme operator to the new scheme operator, comply with an approved transition plan for the retirement village scheme. Maximum penalty—100 penalty units. Current as at [Not applicable] Page 39
Retirement Villages Act 1999 Part 2 Retirement village schemes [s 41I] (2) The existing scheme operator and new scheme operator must, at the request of the chief executive, notify the chief executive about how the approved transition plan is being implemented. Maximum penalty—100 penalty units. Not authorised —indicative only 41I Discontinuing change of scheme operator (1) This section applies if— (a) an existing scheme operator has given a notice to the chief executive under section 41C(2); and (b) the existing scheme operator and the new scheme operator decide not to proceed with the transfer of the control of the retirement village scheme’s operation. (2) The existing scheme operator must give the chief executive notice (a notice of discontinuation ) of the decision in the approved form. Maximum penalty—100 penalty units. (3) If the existing scheme operator gives a notice of discontinuation to the chief executive, any approved transition plan, about the transitioning of the control of the retirement village scheme’s operation from the existing scheme operator to the new scheme operator, is no longer approved. 41J Effect of change of scheme operator (1) This section applies if control of a retirement village scheme’s operation is transfered (the transfer ) from an existing scheme operator to a new scheme operator. (2) Within 14 days after the transfer takes effect, the new scheme operator must give, to each resident of the retirement village, a notice stating— (a) the scheme operator for the retirement village scheme has changed; and (b) the name, address and telephone number of the new scheme operator; and Page 40 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 42] (c) the date the transfer took effect. Maximum penalty—10 penalty units. (3) Without limiting part 3, division 6, on and from the date the transfer takes effect the new scheme operator— (a) is the scheme operator for the retirement village scheme; and (b) obtains the benefits, and is subject to the obligations, of the previous scheme operator in relation to a residence contract associated with the retirement village scheme. Part 3 Residence contracts Division 1 Purpose and intention of part 42 Purpose and intention of part (1) The purpose of this part is to state minimum requirements for residence contracts. (2) However, it is not the intention of this part to prevent a scheme operator agreeing in a residence contract or otherwise to conditions that are more beneficial to a resident or former resident than the provisions of this part. Division 2 General 43 Scheme operator may enter into residence contract only if scheme is registered (1) A scheme operator may enter into a residence contract for the retirement village with someone else only if the scheme is registered under this Act. Maximum penalty—540 penalty units. Current as at [Not applicable] Page 41
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 44] (2) If a scheme operator enters into a residence contract in contravention of subsection (1), the contract is not invalid or unenforceable for that reason only, but may be terminated under section 52. 44 Person signing residence contract to be given copy When a person signs a residence contract with a scheme operator, the operator must immediately give the person a single bound document comprised of— (a) a signed copy of the contract; and (c) if it is intended to enter into another contract, the terms of which are known, that is ancillary to the residence contract—an unsigned copy of the other contract. Maximum penalty—100 penalty units. 45 Form and content of residence contract (1) A scheme operator must ensure each residence contract for the retirement village includes details, including the details prescribed by regulation, about the following— (a) the right to rescind the contract under section 48 before the cooling-off period ends; (b) if the cooling-off period starts on the day the residence contract is signed—the date the cooling-off period ends; (c) if the cooling-off period starts on the day a later event happens or another contract is entered into—the later event or other contract; (d) the ingoing contribution payable under the contract; (e) the exit fee payable under the contract; (f) the resident’s exit entitlement; (g) the services charges; Page 42 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 45] (h) the amounts payable, and when the amounts are payable, by the resident for the maintenance reserve fund for the retirement village; (i) the insurance for the retirement village, and insurance for which the resident is responsible; (j) all conditions precedent to the resident’s right to reside in the retirement village; (k) the resident’s right to resell the right to reside in the accommodation unit; (l) the resident’s entitlement to audited and unaudited financial statements for the village; (m) the dispute resolution process established under this Act; (n) the statutory charge, if relevant to the resident’s title to, or interest in, the accommodation unit; (o) the resident’s and scheme operator’s rights to terminate the contract; (p) the funds the scheme operator is required to keep; (q) the retirement village facilities; (r) the retirement village land; (s) whether the resident and the scheme operator are to share any capital gain or capital loss after the resident’s right to reside in the unit is terminated and, if so, how it is to be shared; (t) another matter prescribed by regulation. (2) A regulation may prescribe a term that must be included in a residence contract (a required term ) or that must not be included in a residence contract (a prohibited term ). (3) A scheme operator must not enter into a residence contract that— (a) is not in the approved form; or Current as at [Not applicable] Page 43
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 45A] Note— See section 227AA(2). (b) does not include details required under subsection (1); or (c) does not include a required term; or (d) includes a prohibited term. Maximum penalty—100 penalty units. (4) A provision of a residence contract is of no effect to the extent it— (a) includes a prohibited term; or (b) purports to restrict or exclude the operation of a provision of this Act; or (c) is otherwise inconsistent with this Act. 45A Scheme operator to give notice of end of cooling-off period in particular circumstances (1) This section applies if the cooling-off period for a residence contract starts on the day a later event happens or another contract is entered into. (2) The scheme operator must, as soon as practicable after the later event happens or the other contract is entered into, give the resident written notice of— (a) the date the later event happens or the other contract is entered into; and (b) the date the cooling-off period ends. Maximum penalty—100 penalty units. 46 Dealing with ingoing contribution (1) A person who receives an amount as an ingoing contribution under a residence contract must give it to one of the following persons (the trustee ) to hold in trust— Page 44 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 46] (a) the public trustee; (b) the scheme operator’s lawyer; (c) a real estate agent; (d) any authorised trustee corporation under the Corporations Act, section 9. Maximum penalty—100 penalty units. (2) If the trustee receives an amount under subsection (1), the trustee’s receipt for the amount is a sufficient discharge for the person for the amount paid. (3) The trustee must hold the amount in trust until the latest of— (a) the day the conditions precedent, if any, to the creation of the right to reside to which the amount relates are fulfilled; or (b) the day the cooling-off period ends; or (c) if the ingoing contribution relates to an accommodation unit that has not previously been occupied—the day the resident’s accommodation unit is suitable for habitation and the resident is entitled to vacant possession of the unit. Maximum penalty—100 penalty units. (4) At the end of the later day, the trustee must pay the amount to the person lawfully entitled to it. Maximum penalty—100 penalty units. (5) For subsection (3)(c), without limiting when an accommodation unit is not suitable for habitation, an accommodation unit is not suitable for habitation if— (a) reticulated water is not connected to the unit; or (b) all sanitary installations are not installed or are not operational in the unit. (6) Despite subsection (1), if a person receives an amount as an ingoing contribution under a residence contract after the end Current as at [Not applicable] Page 45
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 47] of the latest day mentioned in subsection (3), the person may— (a) if the person is lawfully entitled to the amount—keep the amount; or (b) otherwise—pay the amount directly to the person lawfully entitled to it. (7) If there is a dispute between a resident and a scheme operator about who is lawfully entitled to the amount, the dispute is a retirement village dispute. (8) If a retirement village dispute arises under subsection (7), the scheme operator must give the trustee written notice of the dispute immediately it arises. Maximum penalty—100 penalty units. (9) If the trustee is given a notice under subsection (8), the trustee must hold the amount in trust until the dispute is resolved— (a) as provided for under this Act; or (b) by agreement, by deed, between the parties. Maximum penalty—100 penalty units. (10) However, if the contract is rescinded in the cooling-off period, the trustee must immediately pay the amount to the person by whom it was paid under the contract. Maximum penalty—100 penalty units. (11) If a person (the payer ) who is required to pay an amount to someone (the payee ) under this section does not pay the amount, the payee may recover it, as a debt payable by the payer to the payee. 47 Dealing with instruments assigning property under a residence contract (1) This section applies if the person (the assignor ) who enters into a residence contract to secure the person’s, or someone else’s, right to reside in a retirement village assigns property Page 46 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 48] under the residence contract before the cooling-off period ends. (2) The scheme operator must ensure the assignment instrument is held in escrow by the public trustee or the scheme operator’s lawyer (the authorised person ). Maximum penalty—100 penalty units. (3) If the residence contract is rescinded in the cooling-off period, the authorised person must release the assignment instrument to the assignor. Maximum penalty—100 penalty units. (4) If the residence contract is not rescinded in the cooling-off period, the authorised person must, at the end of the cooling-off period, release the assignment instrument to the assignee, or someone else at the assignee’s written direction. Maximum penalty—100 penalty units. (5) In this section— assignee means the person in whose favour property is assigned under an assignment instrument. Division 3 Rescinding residence contracts 48 Residence contract may be rescinded during cooling-off period A person who, personally or for someone else, enters into a residence contract to secure the person’s, or other person’s, right to reside in a retirement village may, by written notice given to the scheme operator, rescind the contract before the cooling-off period ends. 49 Reassignment of property acquired in cooling-off period (1) This section applies if the assignee under an assignment instrument mentioned in section 47 acquires the property the subject of the assignment within the cooling-off period. Current as at [Not applicable] Page 47
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 50] (2) As soon as possible after the assignee becomes aware the residence contract has been rescinded, the assignee must reassign the property to— (a) the person from whom the assignee acquired it (the assignor ); or (b) someone else, at the assignor’s written direction. Maximum penalty—100 penalty units. (3) The assignee must reassign the property free of all interests, mortgages and other charges to which it has become subject since the assignee acquired it. Maximum penalty—100 penalty units. (4) The assignee is responsible for the costs, expenses and duties relating to the reassignment under this section. 50 Scheme operator to compensate assignor if property assigned in cooling-off period is not reassigned (1) This section applies if section 49 requires an assignee to reassign property on rescission of a residence contract but the assignee— (a) has disposed of the property; or (b) is unable, when the contract is rescinded, to discharge any interests, mortgages and other charges to which the property has become subject since the assignee acquired it. (2) The scheme operator for the retirement village to which the contract relates must pay compensation to— (a) the assignor; or (b) someone else, at the assignor’s written direction. (3) The amount of compensation payable— (a) is, after discounting for any GST payable on any supply relating to the payment of the compensation, the amount equalling the value attributed to the assigned property under the residence contract; and Page 48 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 51] (b) may be recovered as a debt payable by the scheme operator to the assignor, or other person mentioned in subsection (2)(b), in a court having jurisdiction for the recovery of the amount claimed. (4) If there are 2 or more scheme operators for the retirement village, the scheme operators are jointly and severally liable to pay the compensation. Division 4 Terminating right to reside 51 Definition for div 4 In this division— resident includes a person who, for someone else, enters into a residence contract to secure the other person’s right to reside in a retirement village. 52 Termination by resident (1) A resident may terminate the resident’s right to reside in a retirement village by 1 month’s written notice given to the scheme operator. (2) Also, a resident may terminate the resident’s right to reside in a retirement village by written notice given to the scheme operator if the retirement village scheme is not registered. (3) A notice under subsection (2) must— (a) be given within 14 days after the resident becomes aware the retirement village scheme is not registered; and (b) state the day, no earlier than the day on which notice is given, on which the termination takes effect. (4) If a resident terminates the resident’s right to reside in a retirement village under subsection (2), the scheme operator must refund the full amount of the resident’s ingoing contribution to the resident within 30 days of the termination. Current as at [Not applicable] Page 49
Retirement Villages Act 1999 Part 3 Residence contracts [s 53] Maximum penalty—540 penalty units. (5) A resident may recover an amount owing under subsection (4) as a debt owed by the scheme operator. Not authorised —indicative only 53 Termination by scheme operator (1) A scheme operator may terminate a resident’s right to reside in the retirement village by giving the written notice required by this section to the resident. (2) If the resident’s right to reside in the retirement village is to be terminated on either of the following grounds, the scheme operator must give the resident 14 days notice— (a) the resident has intentionally or recklessly— (i) injured a person while the person is in the retirement village; or (ii) seriously damaged the resident’s accommodation unit; or (iii) seriously damaged property of another person in the retirement village; (b) the resident is likely, intentionally or recklessly, to do something mentioned in paragraph (a)(i) to (iii). (3) The scheme operator must give the resident 2 months notice if the resident’s right to reside in the retirement village is to be terminated on any of the following grounds— (a) the resident has committed a material breach of the contract; (b) the scheme operator reasonably believes the resident has abandoned the resident’s right to reside in the retirement village; (c) the scheme operator and a person who has assessed the resident’s care needs under the Aged Care Act 1997 (Cwlth), section 22.4 reasonably believe the resident’s type of accommodation is now unsuitable for the resident; Page 50 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 53A] Example of accommodation that is now unsuitable for the resident— The resident resides in an independent living unit and now needs help with personal care not normally provided by the scheme operator. (d) the operator is implementing an approved closure plan. (4) The notice must state— (a) the grounds on which the right to reside is being terminated; and (b) the day by which the resident must vacate the retirement village. (5) If the scheme operator does not know the resident’s current address, the scheme operator may give the notice by publishing it in— (a) a newspaper circulating throughout the State; and (b) a newspaper circulating throughout Australia. (6) The scheme operator must not include the grounds for the termination in the newspaper notice. Maximum penalty for subsection (6)—50 penalty units. 53A How to work out particular exit fee for a residence contract (1) This section applies to an exit fee for a residence contract that is worked out under the contract having regard to the length of time the resident has resided in the accommodation unit to which the contract relates. Example— This section applies if the exit fee is 5% of the ingoing contribution payable under the contract after 1 year’s residence in the unit and 6% of the ingoing contribution payable under the contract after 2 years residence in the unit. (2) If the contract was entered into before the commencement of this section, the exit fee must be worked out on a daily basis Current as at [Not applicable] Page 51
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 54] unless the contract provides a way of working out the exit fee that is not on a daily basis. Example of how to work out the exit fee for a residence contract on a daily basis— If— (a) the exit fee is 5% of the ingoing contribution payable under the contract after 1 year’s residence in the unit and 6% of the ingoing contribution payable under the contract after 2 years residence in the unit; and (b) the resident resides in the unit for 1 year and 14 days, but not during a leap year; the exit fee is 5% of the ingoing contribution payable under the contract for the first year of residence plus 14 / 365 of 1% of the ingoing contribution payable under the contract for the 14 days of the second year of residence. (3) If the contract is entered into after the commencement of this section, the exit fee must be worked out on a daily basis. 54 Resident may ask for estimate statement of resident’s exit entitlement (1) This section applies if a resident gives a scheme operator a written notice— (a) stating the resident is considering terminating the resident’s right to reside in the retirement village under section 52; and (b) asking the operator to give the resident a written estimate of the resident’s exit entitlement as at the date of the notice. (2) The scheme operator must comply with the request within 14 days after it is given. Maximum penalty—40 penalty units. (3) However, the scheme operator does not contravene subsection (2) if the scheme operator has given the resident an estimate under that subsection within the 6 months immediately preceding the resident’s request. Page 52 Current as at [Not applicable]
Retirement Villages Act 1999 Part 3 Residence contracts [s 55] 55 Right to reside in a retirement village terminates automatically on resident’s death A right to reside in an accommodation unit in a retirement village held by a resident terminates on the death of the resident. Not authorised —indicative only Division 5 Reselling and valuing resident’s right to reside 56 Interpretation for div 5 (1) In this division— reinstatement work means replacements or repairs that are reasonably necessary to reinstate a former resident’s accommodation unit to the condition required under section 58(1). termination date means— (a) the date a resident’s right to reside under a residence contract, including an existing residence contract, in an accommodation unit in a retirement village is terminated under this Act; or (b) if a relative of the resident has a right to reside in the accommodation unit under section 70B(2)—the date the relative advises the scheme operator, under section 70B(5)(d), that the relative wants to enter into a residence contract for the accommodation unit. (2) In this division, if a person holds a freehold interest in an accommodation unit, a reference to the former resident includes a reference to the holder of the freehold interest, unless, in relation to a particular matter, the residence contract in relation to that particular matter provides otherwise. 57 Application of div 5 (1) This division applies if a resident’s right to reside under a residence contract, including an existing residence contract, in Current as at [Not applicable] Page 53
Retirement Villages Act 1999 Part 3 Residence contracts [s 58] an accommodation unit in a retirement village is terminated under this Act. (2) This division applies despite anything to the contrary in an existing residence contract. Not authorised —indicative only 58 Reinstatement of accommodation unit (1) When ceasing occupation of the accommodation unit at the end of the residency, the former resident must leave it in the same condition as it was in when the former resident started occupation of it, apart from— (a) fair wear and tear; and (b) renovations and other changes to the condition of the unit carried out with the agreement of the resident and the scheme operator. (2) If the former resident does not comply with subsection (1), the scheme operator may carry out reinstatement work and claim the cost of the work from the former resident. (3) If a relative of the former resident has a right under section 70B(5) to enter into a residence contract for the accommodation unit with the scheme operator and advises the scheme operator, under section 70B(5)(d), that the relative wants to enter into the residence contract— (a) the scheme operator may claim the cost of reinstatement work from the relative under subsection (2) as if the relative were the former resident; and (b) the scheme operator must ensure the reinstatement work is done with as little inconvenience to the relative as is reasonably possible. (4) This section does not apply— (a) to a current residence contract within the meaning of section 237H; or Note— See section 237K. Page 54 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 59] (b) if the former resident’s right to reside in the retirement village was terminated under section 53(3)(d). (5) In this section— fair wear and tear includes a reasonable amount of wear and tear associated with the use of items commonly used in a retirement village. 59 When reinstatement work must be completed (1) This section applies to reinstatement work that— (a) the former resident and the scheme operator agree will be carried out by the operator; or (b) a relative of the former resident mentioned in section 58(3) and the scheme operator agree will be carried out by the operator; or (c) the scheme operator carries out under section 58(2); or (d) the tribunal orders to be carried out by the operator. (2) For reinstatement work mentioned in subsection (1)(a) to (c), the scheme operator must ensure the work is completed by— (a) if the scheme operator and the former resident or relative agree on a time—the agreed time; or (b) if paragraph (a) does not apply and the scheme operator also carries out renovation work under section 59A— the later of the following times— (i) 90 days after the vacation date; (ii) the time by which the renovation work must be completed under section 59A; or (c) otherwise—90 days after the vacation date. (3) For reinstatement work mentioned in subsection (1)(d), the scheme operator must ensure the reinstatement work is completed within the period fixed by the tribunal. (4) This section does not apply— Current as at [Not applicable] Page 55
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 59A] (a) to a current residence contract within the meaning of section 237H; or Note— See section 237K. (b) if the former resident’s right to reside in the retirement village was terminated under section 53(3)(d). (5) In this section— vacation date , of an accommodation unit in a retirement village, means— (a) for a former resident whose relative has a right to reside in the accommodation unit under section 70B(2)—the date the relative’s right to reside in the accommodation unit under that subsection ends; or (b) otherwise—the date the former resident vacates the accommodation unit. 59A Renovation work by scheme operator (1) This section applies if the scheme operator proposes to carry out renovation work in or affecting the former resident’s accommodation unit. (2) Before starting the renovation work, the operator must agree with the former resident on a date by which the renovation work will be finished. (3) A dispute about the date by which the renovation work will be finished is a retirement village dispute. (4) The operator must ensure the renovation work is completed by the agreed date. Note— See section 171 about failure to comply with this subsection. (5) The cost of the renovation work must be paid by— (a) if the residence contract provides that the former resident and the scheme operator are to share any capital gain on the sale of the former resident’s interest Page 56 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 60] in the unit—the former resident and the scheme operator in the same proportion the capital gain is to be shared; or (b) otherwise—the operator. (6) This section does not apply to a current residence contract within the meaning of section 237H. Note— See section 237K. (7) In this section— agreed date , for completing renovation work, includes the date ordered by the tribunal in its decision on a retirement village dispute mentioned in subsection (3). renovation work means replacements or repairs other than reinstatement work. 60 Scheme operator and former resident to agree on resale value of accommodation unit (1) Within 30 days after the termination date, the former resident and the scheme operator are to negotiate in good faith and, if possible, agree in writing on the resale value of the right to reside in the accommodation unit. (2) If the former resident and the scheme operator can not agree on the resale value of the accommodation unit, the scheme operator is to obtain a valuation of the right to reside in the unit from a valuer within a further 14 days. (3) A valuation obtained under subsection (2) is taken to be the agreed resale value of the right to reside in the accommodation unit. 63 When former resident’s exit entitlement payable (1) The scheme operator must pay the exit entitlement of the former resident to the person entitled to receive it on or before the earliest of the following days— Current as at [Not applicable] Page 57
Retirement Villages Act 1999 Part 3 Residence contracts [s 63] Not authorised —indicative only (a) the day it must be paid under the former resident’s residence contract; (b) the day that is 14 days after the settlement day; (c) the day that is 18 months after the termination date or any later day fixed by the tribunal by an order under section 171A; (d) if the former resident’s right to reside in the retirement village was terminated under section 53(3)(d)—14 days after an agreed resale value of the right to reside is determined in accordance with section 60. Maximum penalty—540 penalty units. (2) The scheme operator may pay the exit entitlement at any time on or after the termination date and before the time payment is required under subsection (1) if the operator and the former resident agree on the resale value of the right to reside. (3) To remove any doubt, it is declared that, for subsection (2), the operator and the former resident are taken to have agreed on the resale value of the right to reside if there is an agreed resale value under section 60(3), 67(4) or 67A(4). (4) If the former resident has died, a requirement under subsection (1) to pay the exit entitlement by a particular day (the due day ) is taken to be a requirement to pay the exit entitlement by the later of— (a) the due day; or (b) the day that is 14 days after the operator is shown the probate of the former resident’s will or letters of administration of the former resident’s estate. (5) At the same time as an exit entitlement is paid under this section, the scheme operator must give the former resident a written statement showing how the exit entitlement was worked out and the particulars of any of the following that are payable by the former resident— (a) any exit fee; (b) any accrued general services charges; Page 58 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 63A] (c) any outstanding services charges and fund contributions; (d) any expenses relating to the resale of the right to reside in the accommodation unit; (e) any other payments provided for in the contract. Maximum penalty—100 penalty units. (6) In this section— settlement day means the day on which the sale of the right to reside, to a new resident or the scheme operator, is settled. 63A Scheme operator must enter into and complete contract to purchase freehold property (1) This section applies if the former resident’s residence contract is based on a freehold interest in an accommodation unit. (2) The scheme operator must enter into a contract under this section to purchase the former resident’s freehold property, and complete the purchase under this section, unless— (a) the freehold property is sold to a person other than the scheme operator before the day the scheme operator is required to complete the purchase; or (b) the scheme operator has a reasonable excuse. Maximum penalty—540 penalty units. Note— See also section 63H(2) for when a requirement to enter into a contract under this section does not apply. (3) The scheme operator must enter into the contract and complete the purchase within the time required under section 63B. (4) The contract must comply with section 63C. (5) The purchase price for the freehold property under the contract must be its value as agreed or decided under section 63D. Current as at [Not applicable] Page 59
Retirement Villages Act 1999 Part 3 Residence contracts [s 63A] Not authorised —indicative only (6) Without limiting subsection (2)(b), the scheme operator is taken to have a reasonable excuse for not entering into a contract to purchase the former resident’s freehold property, or completing the purchase, under this section (a required action ) during any of the following periods— (a) a period during which the scheme operator can not take the required action, despite taking all reasonable steps, because of an act or omission of the former resident; Example— The scheme operator cannot complete the purchase because the former resident has not made necessary arrangements for the release of a mortgage over the freehold property. (b) if the former resident enters into a private contract—the period from the day the former resident enters into the contract to the day that is 60 days after the scheme operator receives written notice from the former resident, or another party to the contract, that the contract has ended; (c) if the scheme operator or former resident makes an application to the tribunal under part 10 about a dispute relating to a contract under this section—the period from the day the application is made to the earliest day, after the application is finally dealt with, by which it would be reasonable for the scheme operator to take the required action. (7) A dispute relating to a contract under this section is a retirement village dispute. Examples of matters that may be the subject of a dispute relating to a contract under this section— the terms to be included in the contract the purchase price under section 63D the settlement date for the contract the payment of an amount of legal expenses incurred by the scheme operator (8) If a court convicts the scheme operator of an offence against subsection (2), the court may make an order requiring the Page 60 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 63B] scheme operator to take stated steps to enter into a contract under this section to purchase the former resident’s freehold property or complete the purchase under this section. Note— See also section 191 for orders the tribunal may make to resolve a retirement village dispute under this section. (9) If the court makes an order under subsection (8) stating a time by which scheme operator must enter into a contract or complete a purchase, subsection (3) applies as if a reference to the time required under section 63B were a reference to the time stated in the order. (10) This section applies subject to section 63H. (11) In this section— private contract means a contract for the sale of the former resident’s freehold property to someone other than the scheme operator. 63B Timing of purchase (1) This section states the requirements for section 63A(3). (2) The scheme operator must enter into the contract in sufficient time for the purchase to be completed under subsection (3). (3) The scheme operator must complete the purchase under the contract by the latest of the following days— (a) the day that is 18 months after the termination date; (b) if the former resident has died—the day that is 14 days after the operator is shown the probate of the former resident’s will or letters of administration of the former resident’s estate; (c) the day fixed by the tribunal by an order under section 171A. Current as at [Not applicable] Page 61
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 63C] 63C Contract requirements (1) This section states the requirements for the contract for section 63A(4). (2) A regulation may prescribe a term that must be included in the contract (a required term ) or that must not be included in the contract (a prohibited term ). (3) The contract must— (a) be in the approved form; and (b) include each required term; and (c) not include a prohibited term; and (d) comply with any other requirements prescribed by regulation; and (e) otherwise be in the terms, consistent with this Act, that are— (i) agreed by the scheme operator and former resident; or (ii) decided by the tribunal in a resolution of a retirement village dispute. 63D Purchase price of freehold property (1) This section states how the purchase price for the former resident’s freehold property is decided for section 63A(5). (2) Each of the valuation and resale provisions applies, with any necessary changes, as if— (a) a reference in the provision to the resale value, valuation or sale of the former resident’s right to reside in the accommodation unit were a reference to the resale value, valuation or sale of the freehold property; and (b) a reference in the provision to paying an exit entitlement to the former resident under section 63 were a reference to entering into a contract under section 63A. Page 62 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 63E] (3) Before entering into a contract under section 63A, if the scheme operator and the former resident have not agreed on the resale value of the freehold property within the previous 3 months, the operator must obtain a valuation of the freehold property from a valuer. (4) A valuation obtained under subsection (3) is taken to be the agreed resale value of the freehold property. (5) Unless the scheme operator and the former resident otherwise agree, the purchase price of the freehold property under the contract must be the amount of the most recent agreed resale value of the freehold property under section 60, section 67 or subsection (4). (6) In this section— valuation and resale provisions means sections 60, 64, 65, 67 and 68 to 70AD. 63E Contract may require reimbursement of scheme operator’s legal costs (1) This section applies in relation to an amount of legal expenses reasonably incurred by a scheme operator in entering into a contract under section 63A to purchase a former resident’s freehold property and completing the purchase. (2) The contract may include a term requiring the former resident to pay all or a stated part of the amount to the scheme operator on or after completion of the purchase (a reimbursement requirement ). (3) If the tribunal is dealing with a retirement village dispute about the inclusion of a reimbursement requirement in a contract under section 63A, the tribunal must order that the contract include a reimbursement requirement, in the terms the tribunal considers just, unless the tribunal considers it would be unjust to do so. Current as at [Not applicable] Page 63
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 63F] 63F No sales commission payable on mandatory buyback Despite anything in a residence contract, no sales commission is payable on the sale of the resident’s freehold property to the scheme operator under section 63A. 63G Exit fee If a scheme operator is required to complete a purchase of a former resident’s freehold property under section 63A, the former resident is not liable to pay an exit fee to the scheme operator until the completion of the purchase. 63H Relative residing in unit under s 70B (1) This section applies if a resident’s right to reside in an accommodation unit is terminated and a relative of the former resident continues residing in the accommodation unit under section 70B. (2) If the scheme operator enters into a residence contract for the accommodation unit with the relative, section 63A does not apply to the scheme operator in relation to the former resident’s freehold property. (3) Otherwise, a reference to the termination date in section 63B(3)(a), or in a valuation and resale provision applied by section 63D, is taken to be a reference to the last day that the relative resides in the unit under section 70B. 63I Non-application of particular legislation to contract The following provisions do not apply in relation to a contract under section 63A— (a) the Body Corporate and Community Management Act 1997, chapter 5, parts 1 and 3; (b) the Property Occupations Act 2014, part 7, divisions 5 to 7. Page 64 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 64] 64 Units not sold within 6 months (1) This section applies if— (a) a former resident’s right to reside in a particular accommodation unit is not sold within 6 months after the termination date; and (b) the former resident has not been paid an exit entitlement under section 63. (2) The former resident may engage a real estate agent to effect the sale of the right to reside in the accommodation unit. (3) This section does not apply if the former resident’s right to reside in the retirement village was terminated under section 53(3)(d). 65 Scheme operator to tell resident of all offers for accommodation unit (1) This section applies if a former resident has not been paid an exit entitlement under section 63. (2) The scheme operator must promptly give to the former resident details of each offer to purchase the former resident’s right to reside. Maximum penalty—40 penalty units. (3) Also, if the former resident asks, the scheme operator must give information about the following to the former resident as soon as practicable after the end of each month for which the right to reside remains unsold— (a) all sales inquiries relating to the right to reside; (b) what steps the operator is taking to promote the sale of the right to reside; (c) the following particulars of all other rights to reside in accommodation units for sale in the village— (i) the number of rights for sale; (ii) the size of the units; Current as at [Not applicable] Page 65
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 66] (iii) the selling prices of the rights; (iv) how long the rights have been for sale. Maximum penalty for subsection (3)—40 penalty units. (4) This section does not apply if the former resident’s right to reside in the retirement village was terminated under section 53(3)(d). 66 Working out exit entitlements (1) If a scheme operator accepts an offer for a right to reside less than the agreed value for the right, the former resident’s exit entitlement is to be worked out as if the right to reside was sold at the agreed value. (2) If a former resident accepts an offer for a right to reside less than the agreed value, the former resident’s exit entitlement is to be worked out on the amount of the offer. (3) If a former resident’s right to reside in the retirement village was terminated under section 53(3)(d), the former resident’s exit entitlement is to be worked out as if the right to reside was sold at the agreed resale value. 67 Updating agreed resale value every 3 months (1) This section applies if— (a) a former resident’s right to reside in a particular accommodation unit— (i) is not sold within 3 months after the termination date; or (ii) was terminated under section 53(3)(d); and (b) the former resident has not been paid an exit entitlement under section 63. (2) The former resident and the scheme operator are to reconsider the resale value of the right to reside at least every 3 months and, if possible, agree in writing on a new resale value, which may be the same value. Page 66 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 67A] (3) If the former resident and the scheme operator can not agree on the resale value of the accommodation unit, the operator is to obtain a valuation of the right to reside in the unit from a valuer within a further 14 days. (4) A valuation obtained under subsection (3) is taken to be the agreed resale value of the right to reside in the accommodation unit. (5) However, subsection (4) does not apply if— (a) the former resident’s right to reside in the accommodation unit was terminated under section 53(3)(d); and (b) the valuation obtained under subsection (3) is less than the previous agreed resale value of the right to reside in the accommodation unit determined in accordance with this section or section 60. 67A Updating agreed resale value if exit entitlement is payable before right to reside is sold (1) This section applies if— (a) a scheme operator is required under section 63(1)(c) to pay an exit entitlement before a former resident’s right to reside in a particular accommodation unit is sold; and (b) the operator and the former resident have not otherwise agreed on the value of the right to reside for the purpose of calculating the amount of the exit entitlement. (2) The operator must obtain a valuation of the right to reside from a valuer before, but not more than 14 days before, the day the operator is required to pay the exit entitlement. (4) A valuation obtained under subsection (2) is taken to be the agreed resale value of the right to reside. 68 Costs of selling (1) The costs of the sale of a right to reside in a particular accommodation unit, including the costs mentioned in Current as at [Not applicable] Page 67
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 69] sections 60(2) and 67(3), are to be shared by the former resident and the scheme operator in the same proportion as they are to share the gross ingoing contribution on the sale of the right to reside, as provided for in the residence contract. (2) However, if the former resident engages a real estate agent to sell the right to reside, the former resident must pay the real estate agent’s costs of the sale, if any, and commission. (3) Except as provided by subsections (1) and (2), a scheme operator must not charge a former resident a fee, charge or commission, however described, for selling the resident’s right to reside in the resident’s accommodation unit. Maximum penalty—40 penalty units. (4) However, subsection (3) does not apply to an operator under an existing residence contract. (5) This section does not apply if the former resident’s right to reside in the retirement village was terminated under section 53(3)(d). 69 Limited ground for scheme operator to refuse to accept offer A scheme operator may refuse to accept an offer to purchase a right to reside in an accommodation unit if— (a) the operator reasonably believes— (i) the prospective resident is not within the age limits for residents stated in the village comparison document; or (ii) the type of unit to which the right to reside relates is unsuitable for the prospective resident; or Example for subparagraph (ii)— The accommodation is an independent living unit and the prospective resident needs help with personal care not normally provided by the scheme operator. (b) the right to reside was terminated under section 53(3)(d). Page 68 Current as at [Not applicable]
Not authorised —indicative only Retirement Villages Act 1999 Part 3 Residence contracts [s 70] 70 Valuer (1) For this division, the valuer of the resale value of the right to reside in the unit must be a person who— (a) is a registered valuer; and (b) is agreed on by the scheme operator and the former resident. (2) If the scheme operator and the former resident can not agree on the valuer— (a) the scheme operator or the former resident must immediately tell the chief executive by written notice; and (b) the valuer is to be a registered valuer decided by the chief executive within 14 days after the chief executive receives the notice mentioned in paragraph (a). (3) In this section— registered valuer means a valuer registered under the Valuers Registration Act 1992 . 70A Valuer’s independence In a valuation given under this division, a valuer must state any connection to, or agreement with, the scheme operator that may call into question the independence of the valuation. 70AB Submissions to valuer (1) This section applies if a valuer is required, under this division or a residence contract, to value the resale value of a resident’s, or a former resident’s, right to reside in an accommodation unit in a retirement village. (2) The valuer must advise the scheme operator and resident or former resident (each a party ) that the parties may give the valuer a submission about the valuation of the resale value by a stated date decided by the valuer (the submission date ). Current as at [Not applicable]