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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Retirement Villages Bill 2016
A BILL FOR
An Act to regulate retirement villages and the rights of residents of such
villages; to make related amendments to the
Residential
Tenancies Act 1995
; to repeal the
Retirement
Villages Act 1987
; and for other purposes.
Contents
8Registrar's power to require
information
9Registrar's obligation to preserve
confidentiality
Division 2—Registration of retirement
village schemes
13Notification of information
required for register
Division 3—Authorised
officers
14Appointment of authorised
officers
15Identification of authorised
officers
16General powers of authorised
officers
17Power to require information etc
18Offence to hinder etc
authorised officers
Division 1—Creation and exercise of
residents' rights
21Information to be provided
before residence contract entered into
23Rights in relation to contract
etc
27Payment of capital fund contributions deducted
from exit entitlement
28Arrangements if resident is absent or
leaves
29Arrangements if
resident leaves to enter residential aged care facility
30Certain taxes, costs and charges must not be
charged to residents
31Convening meetings of
residents
33Offences relating to meetings
34Consultation with new operator
35Consultation about village
redevelopment
Division 4—Residents'
committees
37Mandatory consultation with residents'
committee in relation to annual budget
39Harsh or unconscionable residence
rules
40Documents to be supplied to
residents
41Information about managers
to be supplied to residents
Division 6—Termination of residents'
rights
42Termination of residents' rights
Division 7—Resolution of
disputes
Part 4—Administrators,
receivers and managers
45Application for order appointing
administrator
46No
application without consent
47Terms and conditions of
appointment
50Administrator may vary residence
contract
53No
personal liability of administrator, receiver or receiver and
manager
54Endorsement of certificates
of title
55Lease of land in retirement
village
56Termination of retirement
village scheme on application to Supreme Court
57Voluntary termination of retirement village
scheme
58Certain persons not to be involved in the
administration of a retirement village
59Non-compliance may be excused by the
Tribunal
62Representations relating to
retirement villages
Schedule 1—Proceedings before the
Tribunal
2Application to vary or set aside
order
3Presentation of cases before
Tribunal
4Costs on referral of question of
law
Schedule 2—Related amendments,
repeal and transitional provisions
Part 2—Amendment of Residential
Tenancies Act 1995
2Amendment of section
3—Interpretation
3Amendment of section 5—Application of
Act
4Repeal of Retirement Villages
Act 1987
Part 4—Transitional
provisions
11Surplus or deficit of accounts
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Retirement Villages
Act 2016.
This Act will come into operation on a day to be fixed by
proclamation.
The objects of this Act are—
(a) to provide a regulatory framework for the operation of retirement
villages in South Australia under which a balance is achieved between the rights
and responsibilities of—
(i) residents of retirement villages; and
(ii) operators of retirement villages;
(b) to encourage best practice management standards among the operators of
retirement villages;
(c) to ensure that there is proper disclosure of information to
prospective residents of retirement villages;
(d) to regulate the making, content, operation and termination of
residence contracts;
(e) to ensure that residents are properly consulted about matters
affecting their residence in the retirement village;
(f) to provide for dispute resolution processes.
(1) In this Act, unless the contrary intention appears—
annual meeting of residents means the meeting required to be
convened in accordance with
section 31(1)(b)
;
authorised officer means a person appointed to be an
authorised officer under
Part 2
;
bailiff means a bailiff appointed under the
South
Australian Civil and Administrative Tribunal Act 2013
;
business day means any day except a Saturday, Sunday or
public holiday;
capital fund means a contingency, sinking or other reserve
fund or account established for the purposes of capital replacement or
improvements, long-term maintenance or other similar items in respect of a
retirement village;
community retirement village means a retirement village
divided into separate residences and common property by a community plan under
the
Community
Titles Act 1996
or a strata plan under the
Strata
Titles Act 1988
;
Deputy President means a Deputy President of the Tribunal
appointed under the
South
Australian Civil and Administrative Tribunal Act 2013
;
disclosure statement—see
section 20
;
dispute resolution policy—see
section 43
;
domestic partner means a person who is a domestic partner
within the meaning of the
Family
Relationships Act 1975
, whether declared as such under that Act or not;
eligible person means a person who has attained the age of
55 years and retired from full-time employment;
exit entitlement means the amount of money that is, under a
residence contract, payable by the operator of a retirement village on a person
ceasing to reside in the retirement village or when certain conditions specified
in the contract are fulfilled and includes an exit entitlement payable in
circumstances referred to in
section 26(2)(b)
;
exit fee means the amount of money that is, under a residence
contract, payable by a resident of a retirement village on the resident ceasing
to reside in the retirement village or on the sale of the resident's right to
reside at the retirement village;
Note—
This would include, for example, any deferred management fees,
refurbishment costs and remarketing costs.
ingoing contribution means a payment (however described) made
by or on behalf of a person in consideration for, or in contemplation of, the
person becoming a resident in a retirement village (but does not include a
recurrent charge, an exit fee, a special levy or any other payment excluded by
the regulations from the ambit of this definition);
operator of a retirement village means the person by whom or
on whose behalf the retirement village scheme is administered;
period of occupation—a resident's period of occupation
of a residence in a retirement village is the period—
(a) commencing on the day on which the resident enters into occupation of
the residence in the retirement village; and
(b) concluding on the day on which the resident ceases to reside in the
residence in the retirement village;
Note—
See also
subsection (2)
.
premises condition report—see
section 22
;
President means the President of the Tribunal appointed under
the
South
Australian Civil and Administrative Tribunal Act 2013
;
recurrent charge means a fee, charge or other amount (as
specified in the residence contract) payable by a resident to the operator of a
retirement village on a recurrent basis;
register—see
section 12
;
related body corporate has the same meaning as in the
Corporations Act 2001 of the Commonwealth;
remarketing policy—see
section 21
;
residence means premises or a part of premises designed for
separate occupation as a place of residence;
residence contract means a contract under which a person
enters into occupation of a residence in a retirement village in accordance with
a retirement village scheme;
residence rules means the rules with which residents of a
retirement village are expected by the operator to comply;
resident of a retirement village means a person who has
entered into occupation of a residence in accordance with the scheme and
(subject to the terms of a residence contract) includes a spouse or domestic
partner of such a person who—
(a) is residing with that person; or
(b) was residing with that person at the time of his or her
death;
retirement village means a complex of residences or a number
of separate complexes of residences (including appurtenant land) occupied or
intended for occupation under a retirement village scheme but does not include a
complex excluded from the ambit of this definition by the regulations;
retirement village scheme or scheme means a
scheme established for eligible persons and their spouses or domestic partners,
or predominantly for eligible persons and their spouses or domestic partners,
under which—
(a) residences are occupied pursuant to a lease or licence; or
(b) a right to occupation of residences is conferred by ownership of
shares; or
(c) residences are purchased from the operator subject to a right or
option of repurchase; or
(d) residences are purchased by prospective residents on conditions
restricting their subsequent disposal,
but does not include a scheme under which no resident or prospective
resident of a residence pays an ingoing contribution in consideration for, or in
contemplation of, admission as a resident under the scheme;
senior manager, in relation to a retirement village, means
any person to whom the village manager reports or who is responsible for
directing the activities of the village manager (but does not include a person
appointed as a receiver and manager of a body corporate);
special levy—see
section 20(2)(b)
;
special resolution means a resolution passed at a meeting of
residents of a retirement village in the following circumstances:
(a) at least 15 business days written notice of the meeting, containing a
statement of the proposed special resolution, must have been given to all
residents;
(b) the resolution must have been passed by a majority of not less than
three-quarters of the number of residents who were entitled to vote at the
meeting (either in person or by way of an absentee vote exercised in accordance
with this Act);
spouse—a person is the spouse of another if they are
legally married;
Tribunal means the South Australian Civil and Administrative
Tribunal established under the
South
Australian Civil and Administrative Tribunal Act 2013
;
village land owner, in relation to a retirement village,
means the owner of the land used for the retirement village but does not include
an owner who is a resident of the retirement village;
village manager, in relation to a retirement village, means
the person responsible for the day to day management of that retirement village
but does not include a person appointed as a receiver and manager of a body
corporate.
Note—
This could be the operator or a person employed or engaged by the operator
to manage the retirement village.
(2) For the purposes of
this Act—
(a) a person
enters into occupation of a residence in a retirement village on
the day on which the person's right of occupation arises (whether or not the
person chooses to exercise the right on that day);
(b) a resident's settling-in period is—
(i) the period—
• the day on which the resident enters into occupation of the
residence in the retirement village; or
• the day on which the resident signs the residence
contract,
whichever is later; and
(B) concluding 90 days after the day referred to in
subsubparagraph (A)
; or
(ii) such longer period as may be specified in the resident's residence
contract;
(c) a person will be taken to cease to reside in a residence
in a retirement village—
(i) when the person (or someone else on behalf of the person) delivers up
vacant possession of the residence to the operator; or
(ii) when the executor or administrator of the person's estate delivers up
vacant possession of the residence to the operator following the person's death;
or
(iii) if—
(A) the operator decides to terminate the person's right of occupation
under
Part 3
; and
(B) the Tribunal confirms the operator's decision to terminate the right
of occupation,
at the end of the period fixed by the Tribunal within which the person must
vacate the residence;
(d) a person will be taken to have delivered up vacant
possession of a residence in a retirement village if—
(i) the residence is no longer occupied; and
(ii) all personal property has been removed from the residence (other than
property that remains the property of the operator of the retirement village or
that is to remain in the residence by agreement with the operator).
(1) Subject to this section—
(a) this Act applies to retirement villages established either before or
after the commencement of this Act; and
(b) this Act binds the Crown in right of this State and (so far as the
legislative power of the State permits) the Crown in any other capacity, but not
so as to impose criminal liability on the Crown.
(2) The Minister
may, by notice in the Gazette, confer exemptions from this Act or specified
provisions of this Act—
(a) on specified religious or charitable organisations or religious or
charitable organisations of a specified class; or
(b) in relation to specified retirement villages or retirement villages of
a specified class.
(3) An exemption under
subsection (2)
may be conditional or unconditional.
(4) A person who contravenes or fails to comply with a condition of an
exemption is guilty of an offence.
Maximum penalty: $10 000.
Note—
This Act does not apply in relation to aged care facilities under the
Aged Care Act 1997 of the Commonwealth.
(1) There will be a Registrar for the purposes of this Act.
(2) The Minister will appoint a Public Service employee to be the
Registrar.
(3) The Minister may assign a Public Service employee to act as the
Registrar—
(a) during a vacancy in the office of Registrar; or
(b) when the Registrar is absent from, or unable to discharge, official
duties.
(1) The Registrar's functions are—
(a) to gather and maintain current information about retirement villages
and retirement village schemes in South Australia in a manner consistent with
the Registrar's obligations of confidentiality; and
(b) to advise the Minister on the administration and operation of this
Act; and
(c) to perform any other function assigned to the Registrar under this Act
or by the Minister.
(2) The Registrar may, at any time, and must, at the request of the
Minister, report to the Minister on any issue concerning retirement
villages.
8—Registrar's
power to require information
(1) A person must, if required to do so by written notice given by the
Registrar—
(a) give the Registrar, within a time and in a manner stated in the notice
(which must be reasonable), information in the person's possession that the
Registrar reasonably requires for the performance of the Registrar's functions
under this Act; and
(b) verify the information by statutory declaration.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) A person cannot be compelled to give information under this section if
the information might tend to incriminate the person of an offence.
9—Registrar's
obligation to preserve confidentiality
(1) The Registrar
must preserve the confidentiality of information gained in the course of the
performance of the Registrar's functions under this Act that—
(a) could affect the competitive position of the operator of a retirement
village or some other person; or
(b) is commercially sensitive for some other reason.
(2)
Subsection (1)
does not apply to the disclosure of information between—
(a) persons engaged in the administration of this Act; or
(b) the Registrar and the Tribunal for the purposes of resolving a dispute
under this Act.
(3) Information classified by the Registrar as confidential is not liable
to disclosure under the
Freedom
of Information Act 1991
.
(1) The Registrar may delegate a power or function vested in or conferred
on the Registrar by or under this Act—
(a) to a particular person or body; or
(b) to the person for the time being holding or acting in a particular
office or position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act in a matter;
and
(c) is revocable at will by the delegator.
(1) The Registrar must, on or before 30 September in every year,
forward to the Minister a report on his or her work and operations for the
preceding financial year.
(2) The Minister must, within 12 sitting days after receiving a
report under this section, have copies of the report laid before both Houses of
Parliament.
Division 2—Registration
of retirement village schemes
(1) The Registrar must maintain a register containing the following
information:
(a) in respect of each retirement village—
(i) the name and business address of the operator of the village;
and
(ii) the name and address of the village; and
(iii) the references for the certificates of title of the land used for
the village; and
(iv) the name, address and contact details of the village land owner;
and
(v) the name, address and contact details of the village
manager;
(vi) the name, address and contact details of any senior
manager;
(b) any other information that the Registrar considers
appropriate.
(2) The register is to be available for inspection, without fee, during
ordinary office hours at a public office, or public offices, determined by the
Minister.
(3) The Minister must ensure that copies of material on the register can
be purchased for a reasonable fee at the public office, or public offices, at
which the register is kept available for inspection.
13—Notification
of information required for register
(1) The operator of
a retirement village established after the commencement of this section must,
within 28 days after the first person enters into occupation of his or her
residence in accordance with the scheme, give the Registrar—
(a) the name and business address of the operator; and
(b) the name and address of the village; and
(c) the references for the certificates of title of the land used for the
village; and
(d) the name, address and contact details of the village land owner;
and
(e) the name, address and contact details of the village manager;
and
(f) the name, address and contact details of any senior manager;
and
(g) any other information that the Registrar considers
appropriate.
Maximum penalty: $2 500.
Expiation fee: $210.
(2) The operator of a retirement village must, within 28 days of any
change in the information given under
subsection (1)
(including a change by virtue of the sale of an interest in the land
within the village, or the name of the operator or business address), give the
Registrar notice of details of the change.
Maximum penalty: $2 500.
Expiation fee: $210.
(3) Any information required under this section must be given in a manner
and form determined by the Registrar.
Division 3—Authorised
officers
14—Appointment
of authorised officers
(1) The Minister may appoint suitable persons to be authorised officers
for the purposes of this Act.
(2) An appointment may be made subject to conditions specified in the
instrument of appointment.
(3) The Minister may, at any time, revoke an appointment of an authorised
officer or vary or revoke a condition of appointment or impose a further
condition of appointment.
15—Identification
of authorised officers
(1) An authorised officer must be issued with an identity card by the
Minister.
(2) If the powers of the authorised officer have been limited by
conditions, the identity card issued to the officer must contain a statement of
those conditions.
(3) An authorised officer must, at the request of a person in relation to
whom the officer intends to exercise powers under this Act, produce for the
inspection of the person his or her identity card.
16—General
powers of authorised officers
(1) An authorised
officer may (subject to any conditions of the officer's appointment) exercise
the following powers for the purposes of the administration or enforcement of
this Act:
(a) subject to
subsection (2)
—enter and inspect at any reasonable time premises, a place or a
vehicle that the authorised officer believes on reasonable grounds are used for
purposes connected to the management of or carrying on of the business of a
retirement village and use such force as may be reasonably necessary to gain
entry;
(b) require a person to produce documents in the person's possession or
control for inspection;
(c) require a person who has been issued a document under this Act, or who
is required to keep records under this Act, to produce the document or records
for inspection;
(d) inspect, take copies of or extracts from, or make notes from, any
documents or records produced and, for that purpose, take temporary possession
of any such documents or records;
(e) take possession of any documents or records produced (if the
authorised officer considers it necessary to do so for the purpose of obtaining
evidence or protecting evidence from destruction);
(f) take such photographs, films and audio, video and other recordings as
the authorised officer considers necessary;
(g) require any person in the premises, place or vehicle to answer
questions or otherwise furnish information in relation to the carrying on of the
business of a retirement village or a contravention of a provision of this
Act;
(h) require a person who the officer reasonably suspects has committed, is
committing or is about to commit, an offence against this Act to state the
person's full name and usual place of residence and to produce evidence of the
person's identity;
(i) require the owner or occupier (including a resident) of the premises,
place or vehicle to provide the authorised officer with such assistance and
facilities as is or are reasonably necessary to enable the authorised officer to
exercise the functions of an authorised officer under this Act.
(2) An authorised
officer cannot exercise the power conferred by
subsection (1)(a)
to enter a part of premises used for residential purposes
except—
(a) with the consent of the owner or occupier of the premises;
or
(b) on the authority of a warrant issued by a justice.
(3) A justice must not issue a warrant under
subsection (2)
unless satisfied, by information given on oath, that the warrant is
reasonably required in the circumstances.
(4) In the exercise of powers under this Act, an authorised officer may be
assisted by such persons as the officer considers necessary in the
circumstances.
(5) An application for a warrant under this section cannot be made to a
justice who is a resident of the retirement village in respect of which the
warrant is to be executed.
17—Power
to require information etc
If an authorised officer believes on reasonable grounds that a person is
capable of giving information, producing documents or answering questions in
relation to a matter that constitutes, or may constitute, an offence under this
Act or the regulations, the authorised officer may, by written notice given to
the person, require the person—
(a) to provide an authorised officer with any such information in writing
within the time and in the manner specified in the notice; or
(b) to produce to an authorised officer, in accordance with the notice,
any such documents; or
(c) to appear before an authorised officer at a time and place specified
in the notice and answer any such questions, either orally or in writing, and
produce any such documents.
18—Offence
to hinder etc authorised officers
(1) A person who—
(a) hinders or obstructs an authorised officer, or a person assisting an
authorised officer, in the exercise of powers under this Act; or
(b) uses abusive, threatening or insulting language to an authorised
officer or a person assisting an authorised officer; or
(c) subject to
subsection (2)
—refuses or fails to comply with a requirement of an authorised
officer under this Act; or
(d) provides information or answers questions in purported compliance with
a requirement made or question asked by an authorised officer under this Act
knowing the information or answer to be false or misleading in a material
particular; or
(e) falsely represents, by words or conduct, that he or she is an
authorised officer,
is guilty of an offence.
Maximum penalty: $10 000.
(2) A person may refuse
to comply with a requirement of an authorised officer to provide information if
the information might tend to incriminate the person of an offence.
(3) A person who assaults an authorised officer, or a person assisting an
authorised officer, in the exercise of powers under this Act, is guilty of an
offence.
Maximum penalty: $20 000 or imprisonment for 2 years.
Division 1—Creation
and exercise of residents' rights
(1) A residence contract must be in writing and comply with this section
and the requirements (if any) prescribed by the regulations.
(2) The residence
contract must include the following information:
(a) details about the residence in respect of which the person is entering
the contract;
(b) the name and contact details of the operator of the retirement village
(and the manner in which the resident will be notified if the operator
changes);
(c) details about the resident's rights and obligations created by or
under the contract, including—
(i) the right to cool-off (that is, to rescind the contract and not
proceed with becoming a resident in the retirement village); and
(ii) the right to occupation of the residence; and
(iii) recurrent charges for which the resident is liable; and
(iv) additional services and facilities available to residents of the
retirement village and the costs of those services and facilities; and
(v) the right to terminate the right of occupation of the residence and to
receive an exit entitlement; and
(vi) the operator's dispute resolution policy;
(d) any other information prescribed by the regulations.
(3) A residence contract will be taken to include a warranty on the part
of the operator of the correctness of the information contained in the documents
provided under
section 21
(subject to any written alteration made by the operator with the consent
of the resident on or before the signing of the contract by the operator), and
that warranty prevails over any inconsistent contractual term unless the
resident elects to rely on the contractual term (and then the contractual term
will prevail to the extent of any inconsistency).
(1) A disclosure statement must be in writing and comply with this section
and the requirements (if any) prescribed by the regulations.
(2) The disclosure
statement must provide information about the financial arrangements relating to
residents of the retirement village including—
(a) information about—
(i) all fees and charges that the person would be responsible for under
the residence contract (whether as an ingoing contribution, as a recurrent or
other fee or charge payable by a resident or as an exit fee) including a
description of each fee or charge and the amount of the fee or charge or manner
in which the fee or charge will be calculated; and
(ii) what the operator does with the fees and charges; and
(iii) any utilities, services or facilities provided or available to
residents of the village (such as electricity, telephone or Internet provided by
a third party) that the operator has an interest in or would obtain any fee or
reward in relation to; and
(iv) the manner in which the resident's exit entitlement will be
calculated and the effect of
section 29
; and
(v) the insurance arrangements that are in place in relation to the
village; and
(b) a statement
advising that a resident may be required to pay a fee, charge or other amount to
the operator to enable the operator to recover an unforseen expense of the
retirement village (a special levy); and
(c) a statement advising that—
(i) the disclosure statement is not a replacement for the residence
contract but is intended only as a summary of certain information contained in
the contract; and
(ii) the prospective resident must ensure that they understand the terms
of the residence contract; and
(iii) it is recommended that the prospective resident seeks legal and
financial advice about the residence contract; and
(d) any other information or statement prescribed by the
regulations.
21—Information
to be provided before residence contract entered into
The operator of a retirement village must, at least 10 business days before
a person enters into a residence contract, give the person a copy of each of the
following documents:
(a) the residence contract;
(b) the disclosure statement;
(c) if the contract relates to a retirement village already
established—the financial statements presented at the last annual meeting
of residents of the village, including a written statement of any subsequent
change in the affairs of the village and the operator that may significantly
affect the resident's decision to enter the village;
(d) the residence rules;
(e) the policy of the operator to be applied for the remarketing of
residences (the remarketing policy);
(f) any code of conduct to be observed by the operator or
residents;
(g) any other document prescribed by the regulations.
(1) A premises condition report must be in writing and comply with this
section and the requirements (if any) prescribed by the regulations.
(2) The operator of a retirement village must, not more than 10 business
days after a person enters into occupation of a residence in a retirement
village, complete a premises condition report providing detailed information
about—
(a) the condition of the fixtures, fittings and furnishings (an
item) provided in the residence; and
(b) who will be responsible for repairing or replacing an item;
and
(c) how the cost of repairing or replacing an item is to be funded;
and
(d) any other information prescribed by the regulations.
(3) The premises condition report must be signed by, or on behalf of, the
operator and by the person.
23—Rights
in relation to contract etc
(1) An operator of
a retirement village must not, without the approval of the
Minister—
(a) make a representation to a prospective resident that is inconsistent
with information given to the prospective resident under this Division;
or
(b) give information to a prospective resident under this Division that is
inconsistent with a representation made by the operator to the prospective
resident.
(2) For the purposes of
subsection (1)
, a representation made by an employee or agent of an operator will be
taken to be a representation of the operator unless the operator proves that the
person was not acting in the course of his or her employment or
agency.
(3) Subject to
subsection (4)
, a prospective resident is entitled to rescind the residence contract (to
cool-off) at any time within the period of 10 business days
after the day on which the prospective resident signed the contract.
(4) If the prospective
resident—
(a) enters into occupation of the residence before the end of the period
referred to in
subsection (3)
; and
(b) signs a written waiver acknowledging that the operator has informed
them of the entitlement to cool-off and they have chosen to waive that
entitlement,
the prospective resident will be taken to have waived the entitlement to
cool-off.
(5) A contract is rescinded under this section by written notice to the
operator.
(6) A residence contract may be enforced against the operator for the time
being of the retirement village.
(1) If a provision of this Division is not observed, the operator is
guilty of an offence.
Maximum penalty: $35 000.
(2) A person must not knowingly make a statement that is false or
misleading in a material particular (whether by reason of the inclusion or
omission of a particular) in information provided to a prospective resident
under this Division.
Maximum penalty: $35 000.
(1) Subject to
subsection (2)
, an ingoing contribution must be held in trust (in an ADI account or in a
form of investment in which trustees are authorised by statute to invest trust
money) until the person by or on whose behalf the ingoing contribution was paid
enters into occupation of the residence.
Maximum penalty: $35 000.
(2) The Minister
may, on the application of an operator, grant an exemption from
subsection (1)
if satisfied of the operator's capacity and willingness to provide
residences in accordance with a contract entered into between the operator and a
prospective resident.
(3) An exemption may be conditional or unconditional and if an operator
contravenes or fails to comply with a condition of an exemption, the operator
will be guilty of an offence.
Maximum penalty: $10 000.
(1) This section applies despite the terms of a residence contract (but
subject to any order of the Tribunal under
subsection (7)
).
(2) If a residence
contract provides for payment of an exit entitlement when certain conditions
specified in the contract are fulfilled, the resident (or a person claiming
under the resident) may recover the amount payable as a debt from the operator,
for the time being, of the retirement village when—
(a) the specified
conditions are fulfilled; or
(b) a period of 18
months has elapsed since the resident—
(i) ceased to reside in the retirement village; or
(ii) gave the operator a notice in accordance with
subsection (3)
(being a notice that has not since been withdrawn in accordance with
subsection (4)(b)
); or
(c) the operator agrees to pay the exit entitlement to the
resident,
whichever occurs first.
(3) A resident gives an
operator notice in accordance with this subsection if—
(a) the resident gives the operator a notice, in writing and in accordance
with any other prescribed requirements, advising the operator that the
resident—
(i) intends to cease to reside in the residence in the retirement village;
but
(ii) wishes to remain in occupation of the residence until the exit
entitlement becomes payable in accordance with
subsection (2)
; and
(b) a period of 10 business days has elapsed since the notice was given to
the operator.
(4) A resident who
gives an operator notice in accordance with
subsection (3)
—
(a) is, by giving such notice, taken to have agreed to comply with the
prescribed requirements for the period during which the resident remains in
occupation of the residence pursuant to the notice (and those requirements will,
for the purposes of this Act, be taken to be terms of the residence contract
during that period); and
(b) may withdraw the
notice at any time with the agreement of the operator.
(5) If—
(a) an amount becomes payable to a person in accordance with
subsection (2)(b)
; and
(b) that amount should,
in accordance with the residence contract, be calculated based on the
consideration paid on sale of a right to reside in the retirement village;
and
(c) the sale referred to in
paragraph (b)
has not yet occurred,
the following provisions apply:
(d) the person to whom the exit entitlement is payable may, by written
notice given to the operator of the retirement village, elect not to receive the
payment at that time but to wait until the exit entitlement becomes payable in
accordance with
subsection (2)(a)
;
(e) if the person does not so elect—the amount payable must be
calculated in the manner provided in the residence contract but as if the
consideration paid on sale of the relevant right to reside in the retirement
village was the current market value of that right.
(6) For the avoidance of doubt, if a resident receives a payment in
accordance with
subsection (2)(b)
, that payment is taken to be the exit entitlement for the purposes of the
contract (and is not subject to any adjustment when the conditions specified in
the contract for payment of the exit entitlement later occur).
(7) The Tribunal may,
on the application of the operator of the retirement village made within the
period of 18 months referred to in
subsection (2)(b)
, extend that period if satisfied that special circumstances
exist.
(8) The Tribunal may, when making an order under
subsection (7)
, make any consequential or ancillary orders it thinks fit.
(9) The rights of a
resident to payment of an exit entitlement are a charge on land in the
retirement village other than—
(a) a residence owned by a resident; or
(b) common property in a community retirement village.
(10) Despite the
Real
Property Act 1886
, the charge referred to above ranks in priority to any other mortgage,
charge or encumbrance over the land to which the charge relates.
(11) The charge referred to above can only be enforced—
(a) with the approval of the Supreme Court; and
(b) subject to any conditions to which the Supreme Court's approval is
subject.
(12) If the Supreme Court approves the enforcement of the charge it may,
subject to the conditions stipulated by the Court, be enforced in the same way
as a mortgage registered under the
Real
Property Act 1886
.
(13) If an operator
fails to pay the whole or any part of an exit entitlement within
10 business days after the resident becomes entitled to recover the amount
as a debt in accordance with this section, the operator is guilty of an
offence.
Maximum penalty: $5000.
Expiation fee: $315
(14) If a resident of a retirement village disagrees with the operator's
determination of the market value of the right to reside in a residence made for
the purposes of determining an exit entitlement, the resident may require the
operator to obtain an independent valuation in accordance with any requirements
prescribed by the regulations (and in such a case the operator may recover half
of the costs of obtaining the valuation from the resident as a debt or by
subsequently deducting those costs from the resident's exit
entitlement).
(15) A reference in this section to a resident
includes—
(a) any person who has entered into a residence contract (whether or not
the person has entered into occupation of the residence); and
(b) any person who has entered into a residence contract but has not
entered into occupation of the residence as a result of a failure of the
operator to comply with a term or condition in the residence contract,
and such a person will, for the purposes of this section, be taken to have
ceased to reside in the residence on the day on which the person gave written
notice to the operator that he or she did not intend to enter into occupation of
the residence and wished to terminate the residence contract.
27—Payment
of capital fund contributions deducted from exit
entitlement
(1) If an amount is
deducted from an exit entitlement as a contribution to a capital fund, the
operator of the retirement village must pay that amount into the relevant fund
or account—
(a) within 10 business
days after making the deduction; or
(b) if
subsection (2)
applies—in accordance with
subsection (2)
.
Maximum penalty: $5 000.
(2) If an exit
entitlement is paid to a resident in accordance with
section 26(2)(b)
, the operator may, instead of paying an amount deducted from it into a
fund or account within 10 business days (in accordance with
subsection (1)(a)
), pay the amount into the relevant fund or account—
(a) if the operator determines that the residence will not be subject to
another residence contract—at any time before the end of the financial
year in which the exit entitlement was paid; or
(b) in any other case—at any time before another person enters into
occupation of the residence,
provided that the operator must keep a record of the outstanding payments,
and identify them in any relevant financial statements prepared for the purposes
of this Act (while those payments remain outstanding).
28—Arrangements
if resident is absent or leaves
(1) If a resident is absent from a retirement village for a continuous
period of at least 28 days, the resident is not liable to pay, in respect
of a period of absence after those 28 days, any amount in respect of any
personal service that the retirement village (or the operator) ceases to provide
to the resident because of his or her absence from the retirement
village.
(2) If a resident
ceases to reside in a retirement village—
(a) the resident ceases to be liable to pay any amount (other than an
amount that has already accrued) in respect of any personal service that the
retirement village (or the operator) formerly provided to the resident;
and
(b) the operator
must assume responsibility for the payment of any recurrent charges in respect
of the residence formerly occupied by the resident, or otherwise payable by the
resident in connection with the retirement village (other than with respect to
any amount attributable to a charge that has already accrued).
(a) an operator must assume responsibility for recurrent charges on
account of a resident ceasing to reside in a retirement village; and
(b) the resident is entitled to the payment of an exit
entitlement,
then the operator is entitled, subject to
subsection (4)
, to recover from the resident an amount equal to the amount paid by the
operator for recurrent charges that would otherwise have been payable by the
resident over the prescribed period.
(4) An amount
recoverable under
subsection (3)
—
(a) cannot exceed the amount of the exit entitlement payable to the
resident (and if it would exceed that amount, the amount recoverable under
subsection (3)
must be reduced so as to equal the amount of the exit entitlement payable
to the resident); and
(b) cannot be recovered until the exit entitlement is due to be paid to
the resident (and may then be recovered as a deduction from the exit entitlement
payable to the resident).
(5) For the
purposes of
subsection (3)
, the prescribed period, in relation to a resident who has
ceased to reside in a retirement village, is—
(a) unless
paragraph (b)
applies—the period of 6 months from the day on which the resident
ceased to reside in the retirement village; or
(b) if the Tribunal
has, on the application of the operator, determined that the prescribed period
for the purposes of that subsection should in the circumstances of the
particular case be longer than 6 months—the period determined by
the Tribunal,
subject to the qualification that the prescribed period will in any event
come to an end when the residence occupied by the resident before he or she left
the retirement village is resold or relicensed, or otherwise taken over or
occupied by another resident.
(6) The Tribunal should not make a determination extending the prescribed
period under
subsection (5)
unless the Tribunal is satisfied that in the circumstances of the
particular case it would be harsh and unreasonable to limit the prescribed
period to 6 months.
(7) If—
(a) a resident is liable to pay an amount in respect of any other charges
that may accrue after he or she has ceased to reside in a retirement village;
and
(b) the resident is entitled to the payment of an exit
entitlement,
then the operator is not entitled to recover the amount until the exit
entitlement is due to be paid to the resident (and the amount may then be
recovered as a deduction from the exit entitlement payable to the
resident).
(8) If an operator does not make 1 or more payments for which the operator
must assume responsibility under
subsection (2)(b)
at the same time as the resident would have been required to make the
payments if he or she had remained in the retirement village, the
operator—
(a) must keep a record of the outstanding payments, and identify them in
any relevant financial statements prepared for the purposes of this Act (while
those payments remain outstanding); and
(b) must make the outstanding payments before any other person enters into
occupation of the residence; and
(c) must not attempt to recover the outstanding payments by increasing the
recurrent charges payable by other residents.
Maximum penalty: $5 000.
(9) In this section—
personal service means a service provided to a resident
individually (rather than to residents generally).
29—Arrangements
if resident leaves to enter residential aged care facility
(1) A resident of a
retirement village—
(a) who has been approved under the Aged Care Act 1997 of the
Commonwealth to enter into residential care at an aged care facility provided by
an approved provider under that Act; and
(b) who, in order to do so, chooses to pay a refundable accommodation
deposit under that Act; and
(c) who does not have ready access to funds to make the payment, or whose
personal finances would be seriously affected by any such payment; and
(d) who will be entitled, on conditions specified in the residence
contract being fulfilled or otherwise in accordance with
section 26
, to payment of an exit entitlement,
may, within 60 days after being so approved for entry into the facility or
ceasing to reside in the village (whichever is the later), apply to the operator
for payments to be made to the aged care facility on behalf of the resident
under this section.
(2) The operator may require a resident to provide evidence of a kind
prescribed by regulation with an application under
subsection (1)
.
(3) The operator
must, within 30 days after receiving an application properly made under this
section, commence making payments to the aged care facility for the daily
accommodation payment applicable to the resident's care at the aged care
facility.
(4) The operator must continue to make the payments referred to in
subsection (3)
until—
(a) the total amount of the payments made by the operator on behalf of the
resident under this section equals 85% of the operator's reasonable estimate of
the amount of the resident's exit entitlement; or
(b) the resident becomes entitled to be paid the resident's exit
entitlement,
whichever occurs first.
(5) If an operator
fails to pay an amount as required under this section, the operator is guilty of
an offence.
Maximum penalty: $5 000.
Expiation fee: $315.
(6) An operator may recover all amounts paid on behalf of a resident under
this section by deducting the total of such amounts from the resident's exit
entitlement.
30—Certain
taxes, costs and charges must not be charged to residents
(1) Subject to
subsection (2)
, land tax payable in respect of any of the land comprising a retirement
village is not recoverable by the taxpayer directly or indirectly from the
residents of the village.
(2)
Subsection (1)
does not prevent a taxpayer from recovering directly from the resident of
a residence land tax payable in respect of that residence and its appurtenant
land if the residence is not being occupied by the resident as his or her
principal place of residence.
(3) Subject to this Act, the operator of a retirement village must assume
responsibility for—
(a) costs relating to the depreciation, amortisation or writing-off of
assets of the retirement village; and
(b) costs incurred by the operator in obtaining legal advice or
undertaking legal proceedings relating to the retirement village; and
(c) fines or other penalties incurred by the operator; and
(d) fees, charges or other monetary amounts payable by the operator in
respect of newly constructed residences in a retirement village that are not yet
subject to a residence contract,
and must not attempt to recover these amounts by increasing the recurrent
charges payable by residents.
(4) Despite any provision of a residence contract or other agreement, a
resident or prospective resident is not liable to pay recurrent or other charges
relating to a residence in a retirement village (other than an ingoing
contribution) in respect of a period before he or she entered into occupation of
the residence.
31—Convening
meetings of residents
(1) The operator of
a retirement village—
(a) may convene a meeting of the residents at any time; and
(b) must convene
such a meeting on an annual basis.
(2) The annual meeting must be held not more than 4 months after the end
of the financial year that applies in relation to the retirement
village.
(3) The annual meeting must be chaired by a representative of the operator
who is authorised to speak on behalf of the operator and to give responses to
questions put at the meeting in accordance with the requirements of this
section.
(4) A meeting of residents may also be convened by a residents'
committee.
(5) A meeting will
be convened by sending to each resident, at least 10 business days before the
day of the meeting, a written notice setting out—
(a) the time and place of the meeting; and
(b) the business to be transacted at the meeting.
(6) A notice for an
annual meeting (whether or not given in compliance with
subsection (5)
) must be accompanied by—
(a) the following
information relating to the retirement village:
(i) an audited statement of accounts in respect of the previous financial
year showing—
(A) the income received from residents, and expenditure of that income,
for the financial year; and
(B) if, during the financial year, there was any income received into, or
expenditure from, a capital fund—such income or expenditure;
(ii) a statement of estimates of income from residents, and expenditure of
that income, for the current financial year;
(iii) a statement of
estimates of income (from any source), and expenditure, for the current
financial year in respect of any capital fund;
(iv) a list of the expenditure items covered, or proposed to be covered,
by the recurrent charges for the current financial year, including a description
of each general category of item (to a reasonable degree of particularity) and
the amount of expenditure for each such category;
(v) if the expenditure for the current financial year includes any
management expenditure—
(A) a description of each item to which the expenditure relates;
and
(B) if the expenditure is apportioned between more than 1 retirement
village or other businesses—the manner in which such apportionment is
calculated;
(vi) any other information required by the regulations; and
(b) an invitation
to residents to submit—
(i) written questions to the operator at least 5 business days before the
date of the meeting; and
(ii) other questions at the meeting.
(7) The operator must ensure—
(a) that information provided under
subsection (6)(a)
complies with any standard or principle prescribed by the regulations;
and
(b) that a resident is afforded, on request, a reasonable opportunity to
inspect, depending on how the operator prepares its accounts—
(i) an audited balance sheet (with appropriate notes) for the retirement
village; or
(ii) an audited balance sheet (with appropriate notes) for the
operator,
as at the end of the previous financial year.
(8) In the case of a community retirement village, a meeting convened
under this section may be held in conjunction with a meeting of the community
corporation or the strata corporation.
(9) The operator of a retirement village must, for the purposes of this
section, establish a financial year that is to apply (on a yearly basis) in
relation to the retirement village.
(10) An audit required under this section must be conducted in accordance
with any requirements prescribed by the regulations.
(11) In this section—
management expenditure means expenditure by a retirement
village towards management fees or administrative costs and includes any
expenditure of a kind prescribed by the regulations for the purposes of this
definition.
(1) This section applies to a meeting convened under
section 31
.
(2) The operator must ensure that—
(a) residents have a reasonable opportunity to put questions to the
operator or its representative at a meeting of residents convened by the
operator; and
(b) questions submitted in writing under
section 31(6)(b)
, or asked at a meeting, are answered—
(i) if
possible—in reasonable detail at the relevant meeting; or
(ii) to the extent that compliance with
subparagraph (i)
is not possible—within 10 business days after the meeting by the
presentation of detailed written answers.
(3) The convener of a meeting must cause accurate minutes to be kept of
proceedings at the meeting.
(4) The minutes of a meeting must, within 10 business days after the
meeting—
(a) in the case of an annual meeting—be provided, in writing, to
each resident; or
(b) in any other case—be made available for inspection by residents
in a manner that is easily accessible by residents.
(5) If a question asked by a resident is answered at a meeting and the
resident requests the answer to be provided in writing, the operator must ensure
that a detailed written answer is provided to the resident within 10 business
days after the meeting.
(6) Nothing in this section requires an operator, or the representative of
an operator, to answer an unreasonable question.
(7) Recurrent charges cannot be increased beyond a level shown to be
reasonable in view of the accounts for the previous year, and the estimates for
the current financial year, as explained at a meeting of residents.
(8) A special levy may not be imposed on residents of a retirement village
unless authorised by special resolution passed at a meeting of
residents.
(9) Subject to
subsection (11)
—
(a) each resident present at a meeting of residents has 1 vote on any
question arising for decision at the meeting; and
(b) a resident may exercise an absentee vote on a question arising for
decision at the meeting by giving the operator written notice of the proposed
vote at least 24 hours before the time of the meeting.
(10) A decision at a meeting is to be determined by a simple majority of
the votes cast by the residents voting at the meeting (in person or by absentee
vote).
(11) If 2 or more
residents are in occupation of the same residence in a retirement village only 1
of them may exercise a vote at a meeting of the residents and if more than 1
purport to vote, the person presiding at the meeting may determine which vote is
to be recognised.
33—Offences
relating to meetings
(1) An operator who fails to comply with
section 31(6)
is guilty of an offence.
Maximum penalty: $10 000.
Expiation fee: $315.
(2) If—
(a) any other requirement of
section 31
; or
(b) any requirement of
section 32
,
applying to the operator of a retirement village is not complied with, the
operator is guilty of an offence.
Maximum penalty: $10 000.
Expiation fee: $315.
34—Consultation
with new operator
(1) It will be a
term of every agreement that will result in a change in the operator of a
retirement village (including a change by virtue of the sale of an interest in
the land within the village) that, before the change is effected, the person who
is to be the new operator will convene a meeting of residents under this section
at which the person (or his or her representative) will—
(a) present a report on any changes that are proposed for the retirement
village (including any proposal to change a charge, fee or levy payable by
residents), and his or her plans for the future management and operation of the
retirement village; and
(b) answer any reasonable question put by a resident.
(2) A meeting will be convened by sending to each resident, at least 10
business days before the date of the meeting, a written notice setting
out—
(a) the time and place of the meeting; and
(b) the reason for the meeting.
(3) If a change in an operator of a retirement village is effected by an
agreement without compliance with the term referred to in
subsection (1)
, the person who is the new operator is guilty of an offence.
Maximum penalty: $10 000.
35—Consultation
about village redevelopment
(1) It will be a
term of every residence contract that, before any redevelopment of a retirement
village is commenced, the operator will convene a meeting of residents under
this section at which the operator will—
(a) present a plan of, and report on, the proposed redevelopment;
and
(b) answer any reasonable question put by a resident.
(2) A meeting will
be convened by sending to each resident, at least 10 business days before the
date of the meeting, a written notice setting out—
(a) the time and place of the meeting; and
(b) the reason for the meeting.
(3) Redevelopment cannot take place unless the operator has given due
consideration to a resident's rights arising from his or her residence contract
and, if relevant, reasonable arrangements have been put in place with respect to
the provision of alternative accommodation.
(4) If redevelopment that would have a significant effect on a resident's
rights arising from his or her residence contract occurs without compliance with
the term referred to in
subsection (1)
, the operator is guilty of an offence.
Maximum penalty: $10 000.
Division 4—Residents'
committees
(1) The residents of a retirement village may elect a residents'
committee.
(2) The function of a
residents' committee is to consult with the operator of the retirement village,
or a representative of the operator, in relation to matters of interest to
residents and to represent the interests of the residents.
(3) Only 1 residents' committee may be established in a retirement village
and only a resident of the retirement village may be a member of such a
committee.
(4) If more than 1 body or committee (regardless of its name) purports to
be the residents' committee in a particular retirement village, the operator or
a resident of the village may apply to the Tribunal for (and the Tribunal may
make) an order determining which body or committee (if any) is the residents'
committee for the village.
(5) Each member of a residents' committee will hold office for 1 year from
election but is eligible for re-election.
(6) A member may be removed from office by a special resolution at a
meeting of the residents.
(7) The members of a
residents' committee must ensure that the operator is provided with sufficient
information about the membership of the committee and the manner in which the
operator may contact members of the committee (or a representative or
representatives of the committee).
(8) If
subsection (7)
is not complied with, each member of the residents' committee is guilty of
an offence.
Maximum penalty: $1 500.
Expiation fee: $105.
(9) Subject to the regulations, a residents' committee
may—
(a) determine its own procedure; and
(b) appoint sub-committees and determine their procedures.
(a) discourage or prevent the appointment of a committee under this
section; or
(b) obstruct a committee in the performance of its functions.
Maximum penalty: $2 500.
(11) If a residents'
committee reasonably requests a meeting with the operator by written notice
setting out the time, place and business agenda of the meeting, the operator
must attend the meeting (or ensure that a representative of the operator
authorised to speak on behalf of the operator attends the meeting).
Maximum penalty: $2 500.
(12) If an operator
reasonably requests a meeting with the members of a residents' committee (or a
representative or representatives of a residents' committee) by written notice
setting out the time, place and business agenda of the meeting, the members of
the residents' committee (or a representative or representatives of the
residents' committee) must attend the meeting.
(13) If a contravention
of
subsection (12)
occurs, each member of the residents' committee who is in default is
guilty of an offence.
Maximum penalty: $2 500.
(14) A member of a residents' committee incurs no civil liability for an
act or omission in good faith in the exercise of functions under this
section.
(15) The regulations may make provision for or with respect to the
election, functions and procedure of residents' committees and sub-committees
including, without limitation—
(a) imposing requirements in relation to the holding of meetings of
residents under
Division 3
for purposes relating to a residents' committee; and
(b) prescribing model rules that may be adopted by a residents' committee;
and
(c) imposing requirements in relation to record keeping, audit or other
matters relating to a residents' committee.
37—Mandatory
consultation with residents' committee in relation to annual
budget
(1) Subject to
subsection (2)
, if—
(a) there is a residents' committee in relation to a retirement village;
and
(b) the committee has provided the operator with the information referred
to in
section 36(7)
,
the operator must, before any annual meeting is held, convene at least 2
meetings with the members of the residents' committee to discuss the matters set
out in
section 31(6)(a)
.
(2) However, the
meetings, or either 1 of the meetings, required by
subsection (1)
need not be convened if the residents' committee has advised the operator,
in writing, that it does not require the meetings or meeting (as the case may
be) to be held.
(3) A meeting required under this section will be convened by sending to
each member of the residents' committee, at least 10 business days before the
date of the meeting, a written notice setting out the time, place and business
agenda of the meeting.
(4) A meeting under this section must be chaired by the operator or by a
representative of the operator who is authorised to speak on behalf of the
operator and to give responses to questions put at the meeting in accordance
with the requirements of this section.
(5) The operator must ensure that—
(a) members of the residents' committee have a reasonable opportunity to
put questions to the operator or its representative at a meeting under this
section; and
(b) questions asked at a meeting under this section are
answered—
(i) if
possible—in reasonable detail at the relevant meeting; or
(ii) to the extent that compliance with
subparagraph (i)
is not possible—before the holding of the annual meeting, either at
a subsequent meeting under this section or by the presentation of detailed
written answers.
(6) Nothing in this section requires an operator, or the representative of
an operator, to answer an unreasonable question.
(7) If an annual meeting is held without compliance by the operator with
this section, the operator is guilty of an offence.
Maximum penalty: $10 000.
(1) An operator
must, on the request of a resident or residents' committee, provide an interim
financial report that incorporates 1 or more of the following, as requested by
the resident or residents' committee:
(a) a statement of income received from residents, and expenditure of that
income, for the relevant accounting period;
(b) a statement of estimates of income from residents, and expenditure of
that income, for the balance of the financial year;
(c) a statement of
income (from any source), and expenditure, for the relevant accounting period in
respect of a capital fund;
(d) a statement of estimates of income (from any source), and expenditure,
for the balance of the financial year in respect of a fund or account referred
to in
paragraph (c)
;
(e) other information as required by the regulations.
(2) The operator
must, if requested to do so by the resident or residents' committee, include as
part of an interim financial report provided under
subsection (1)
copies of invoices substantiating expenditure for the relevant accounting
period.
(3) The relevant accounting period that applies with respect
to a request under
subsection (1)
is the period from the beginning of the financial year in which the
request is made to the end of the last completed quarter for that financial year
(as determined at the time of the making of the request).
(4) The operator
must ensure that information provided under
subsection (1)
complies with any standard or principle prescribed by the
regulations.
(5) An interim
financial report must be provided within 15 business days after the request is
made.
(6) If a contravention
of
subsection (1)
,
(2)
,
(4)
or
(5)
occurs, the operator is guilty of an offence.
Maximum penalty: $5 000.
(7) If—
(a) a request is made under
subsection (1)
or
(2)
; and
(b) the operator, on receiving the request, indicates that a fee of, or
not exceeding, a specified amount will be payable to cover the cost of preparing
and providing the relevant report; and
(c) the specified amount is reasonable in the circumstances,
then the operator may, in connection with providing the report under
subsection (1)
or
(2)
, require the payment of an amount not exceeding the amount so
specified.
(8) For the purposes of this section, a quarter of a financial year is any
of the periods of 3 calendar months that together make up the financial
year that applies in relation to the relevant retirement village.
39—Harsh
or unconscionable residence rules
If a residence rule, or a provision of a residence rule, is harsh or
unconscionable the rule or provision is void.
40—Documents
to be supplied to residents
(1) The operator of a retirement village must, at the request of a
resident, provide the resident, free of charge, with—
(a) a copy of the residence contract under which the resident was admitted
to the retirement village; and
(b) a copy of the residence rules that are applicable to the retirement
village; and
(c) a statement of the amount to which the resident would be entitled, by
way of exit entitlement and exit fee, if the resident were to cease to reside at
the retirement village.
Maximum penalty: $2 500.
(2) If an alteration is made to residence rules, the operator must issue
an amended set of the rules to every resident.
Maximum penalty: $2 500.
41—Information
about managers to be supplied to residents
(1) The operator of a retirement village must, by written notice provided
in accordance with the regulations, inform each resident of the village of the
name and contact details of the village manager and any senior
manager.
(2) The operator of a retirement village must, by written notice provided
in accordance with the regulations, inform each resident of the village of any
change in details previously provided under this section.
(3) If the operator of a retirement village refuses or fails to comply
with this section, the operator is guilty of an offence.
Maximum penalty: $2 500.
Division 6—Termination
of residents' rights
42—Termination
of residents' rights
(1) A resident of a
residence in a retirement village has a right of occupation that cannot be
terminated unless—
(b) the resident
terminates the residence contract or ceases to reside in the retirement village
in circumstances in which there is no reasonable prospect of the resident
returning to reside in the retirement village; or
(i) commits a breach of the residence contract or the residence rules;
or
(ii) acts in a manner
that adversely affects the health and safety of persons working in the
retirement village or that seriously disturbs the peace or comfort of other
residents of the retirement village,
and the operator terminates the resident's right of occupation on that
ground; or
(d) the residence
becomes an unsuitable place of residence for the resident because of the
resident's mental or physical incapacity and the operator terminates the
resident's right of occupation on that ground; or
(e) the holder of a mortgage or charge that was in existence at the
commencement of the
Retirement
Villages Act 1987
becomes entitled to vacant possession of the residence pursuant to rights
conferred by the mortgage or charge; or
(f) circumstances exist
that make it no longer appropriate for the resident to continue to reside in the
residence; or
(g) the Supreme Court terminates the residence contract in proceedings
under
section 56
.
(2) Subject to
subsection (4)
, the rights of termination under
subsection (1)(a)
,
(b)
,
(c)
or
(d)
are subject to—
(a) any limitations or qualifications arising from the residence contract;
and
(b) any rights of
the resident deriving from the resident's ownership of an interest in the
residence.
(3) The rights of termination under
subsection (1)(c)(ii)
must not be exercised unless the operator has made reasonable efforts to
stop the resident acting in the manner complained of by—
(a) giving the resident a written notice warning the resident to stop
acting in such a manner; or
(b) conducting some form of mediation or other dispute resolution process
with the resident; or
(c) any other means appropriate in the circumstances,
and those efforts have failed to prevent the resident so acting.
(4) A residence
contract cannot limit or qualify the right of a resident to terminate a right of
occupation during his or her settling-in period.
(5) If a resident
terminates a right of occupation during his or her settling-in period (even if
he or she then continues to reside in the retirement village after the end of
that period), the resident is liable to pay—
(a) fair market rent in respect of his or her period of occupation of a
residence, less any amount paid by the resident for services that would
otherwise be included in the assessment of fair market rent; and
(b) other amounts (if any) payable under the residence contract.
(6) An amount payable by a resident under
subsection (5)
may be deducted from an exit entitlement due to the resident.
(7) No provision in a contract between the operator and the resident can
have the effect of making the resident liable to pay an amount by way of a
penalty if he or she terminates a right of occupation during his or her
settling-in period (and any such provision is void to the extent that it would
have such an effect).
(8) The operator's decision to terminate a resident's right of occupation
under
subsection (1)(c)
,
(d)
or
(f)
is ineffective unless the Tribunal, on the application of the
operator—
(a) is satisfied that proper grounds, which are sufficiently serious to
justify termination of the right of occupation, exist; and
(b) confirms the operator's decision.
(9) If the Tribunal
confirms the operator's decision to terminate a right of occupation, it must fix
a period within which the resident must vacate the residence.
(10) The Tribunal
may make an order for the ejectment of a resident who has not vacated a
residence at the expiration of the period referred to in
subsection (9)
.
(11) An order under
subsection (10)
may be enforced by a bailiff in the same manner as an order for the
possession of premises under the
Residential
Tenancies Act 1995
(and, for that purpose a bailiff may, in particular, exercise the powers
of a bailiff under section 99 of that Act).
(12) If the operator decides to terminate a resident's right of
occupation, the operator must give the resident a notice—
(a) setting out the grounds of the operator's decision; and
(b) providing the resident with a copy of the operator's dispute
resolution policy; and
(c) informing the resident that the decision is subject to review by the
Tribunal; and
(d) informing the resident of his or her rights with regard to such a
review.
Maximum penalty: $10 000.
Division 7—Resolution
of disputes
(1) The operator of a
retirement village must have a written policy in relation to resolution of
disputes between the operator and residents of the retirement village (a
dispute resolution policy).
(2) A dispute resolution policy must comply with any requirements
prescribed by the regulations.
(3) A copy of a dispute
resolution policy must be provided, on request, to a resident of the retirement
village (and must be so provided within 5 business days of the making of the
request).
(4) An operator who fails to comply with this section is guilty of an
offence.
Maximum penalty: $10 000.
(1) A party to a
dispute between an operator and a resident of a retirement village may apply to
the Tribunal for resolution of the matters in dispute.
(a) an application should not be made to the Tribunal unless the parties
have made reasonable attempts to resolve the dispute in accordance with the
operator's dispute resolution policy and such attempts have failed to resolve
the dispute; and
(b) an application must not be made to the Tribunal in relation to an act
or omission that occurred more than 4 years before the day on which the
application is made except with the permission of the Tribunal.
(3) On an
application under
subsection (1)
—
(a) if the Tribunal finds that a party to the dispute has breached, or
failed to comply with, a residence contract, the Tribunal may—
(i) by such order as it considers appropriate in the circumstances,
restrain the breach of the contract or require action in performance of the
contract;
(ii) order the payment of an amount payable under the contract;
(iii) order the payment of compensation for loss or injury, other than
personal injury, caused by a breach of the contract or a failure to comply with
the contract;
(b) if the Tribunal finds that a party to the dispute has breached, or
failed to comply with, a provision of this Act, the Tribunal
may—
(i) by such order as it considers appropriate in the circumstances,
restrain a breach of this Act or require action to comply with this Act or, in
relation to an operator, require the operator to vary or reverse a decision or
the effect of an act of the operator;
(ii) order a party to the dispute to refrain from future action of a kind
specified in the order;
(iii) order the payment of compensation for loss or injury, other than
personal injury, caused by a breach of this Act or a failure to comply with this
Act;
(c) if the Tribunal finds that the operator has acted in a harsh or
unconscionable manner, the Tribunal may, by such order as it considers
appropriate in the circumstances—
(i) require the operator to vary or reverse a decision or the effect of an
act of the operator;
(ii) avoid ab initio, or modify, terms or conditions of an
agreement between the operator and the resident;
(iii) require the operator to repay to the resident any amount paid by the
resident pursuant to a term or condition of an agreement (that has been avoided
or modified by the Tribunal);
(d) if the dispute relates to the payment of an exit entitlement—the
Tribunal may determine the amount that is payable, and make orders as to
payment.
(4) Despite section 51(3) of the
South
Australian Civil and Administrative Tribunal Act 2013
, the Tribunal may only refer a matter, or any aspect of a matter, in
dispute between an operator and a resident for mediation with the express
consent of the parties (which may not be subsequently withdrawn).
(5) The Tribunal may refuse to determine an application under this section
if the Tribunal considers that it is appropriate to do so for any
reason.
(6) The Tribunal may
make an order under this section notwithstanding that it provides a remedy in
the nature of an injunction or order for specific performance in circumstances
in which that remedy would not otherwise be available.
(7) However, a member of the Tribunal who is not legally qualified cannot
make an order under
subsection (6)
without the approval of the President or a Deputy President of the
Tribunal.
(8) The Tribunal may make ancillary or incidental orders for the purposes
of proceedings under this section.
(9) A dispute as to the payment of an exit entitlement may also be brought
before a court competent to hear and determine a claim founded on contract for
the amount in dispute.
(10) This section does not derogate from—
(a) the other provisions of this Act that relate to applications to the
Tribunal; and
(b) the jurisdiction of a court, or of another tribunal constituted by
law.
(11) In this section—
resident of a retirement village includes a former resident
of a retirement village.
Part 4—Administrators,
receivers and managers
45—Application
for order appointing administrator
(1) The Minister may apply to the Supreme Court, in accordance with the
rules of the Court, for an order appointing a specified person as an
administrator of a retirement village—
(a) to exercise all the functions of the operator of the retirement
village; or
(b) to exercise specified functions of the operator; or
(c) to exercise all the functions other than specified functions of the
operator.
(2) The Minister may apply for an order under this section only
if—
(a) the Minister is of the opinion that the well-being or financial
security of the residents of the retirement village concerned has been, or is
likely to be, seriously affected by the continued operation of the retirement
village by the operator; or
(b) the Minister is of the opinion that the operator of the retirement
village concerned is wilfully and repeatedly acting in contravention of an order
made by the Tribunal or a court in relation to the retirement village;
or
(c) the retirement village concerned is the subject of an existing order
under this section.
(3) For the purposes of determining whether an application for an order
under this section should be made, the Minister may appoint a person to inquire
into, and report to the Minister on, the well-being and financial security of
the residents of a retirement village.
46—No
application without consent
The Minister is not to apply for an order appointing a person as an
administrator under this Part unless the person has consented in writing to the
appointment.
47—Terms
and conditions of appointment
Without limiting the terms and conditions of the order of appointment of an
administrator under this Part, the terms and conditions may exempt the
administrator from the requirement to comply with such obligations of the
operator as are specified or described in the order of appointment.
(1) The operator of a retirement village must not, while an order under
this Part is in force in respect of the village, exercise any of the functions
of the operator that the administrator is authorised to exercise.
(2) However, the appointment of an administrator does not relieve the
operator of any of his or her liabilities under a residence contract.
(3) Subject to the terms of the appointment, a person appointed as an
administrator of a retirement village must comply with all the obligations of
the operator in relation to the functions that the person is authorised to
exercise (including functions under a residence contract) and is, in the
exercise of those functions, taken to be the operator.
(1) The expenses incurred by an administrator appointed under this Part in
exercising the functions of the operator of a retirement village are payable
from recurrent charges and such other funds as would be available to the
operator for such expenses if the administrator had not been appointed.
(2) Neither the Crown, nor the Minister is liable for—
(a) any expenses incurred by an administrator appointed under this Part to
exercise the functions of the operator of a retirement village; or
(b) any liability of an operator of a retirement village in respect of
which an administrator is appointed.
50—Administrator
may vary residence contract
(1) Despite any other provision of this Act, an administrator appointed
under this Part may, with the consent of the Minister—
(a) amend or revoke an approved annual budget; or
(b) vary the recurrent charges payable by the residents of the retirement
village; or
(c) vary the services offered by the retirement village.
(2) The Minister may give consent under subsection (1) only if, in the
opinion of the Minister, the proposed revocation, variation or amendment is done
for the purpose of—
(a) assisting in the process of finding a new operator for the retirement
village; or
(b) ensuring the financial viability of the retirement village.
(3) Nothing done by the administrator in accordance with this section is
to be regarded as a breach of contract or otherwise as a civil wrong.
(4) No compensation is payable to a person because of the operation of
this section or anything done under this section.
(1) An order made under this Part may be revoked or varied by the Supreme
Court (whether or not on the application of the Minister) and (unless sooner
revoked) ceases to have effect at the expiration of the period specified in the
order.
(2) More than 1 order may be made under this Part in respect of the same
retirement village.
(1) If a receiver, or a receiver and manager, is appointed in respect of
an operator of a retirement village, the appointee must (subject to the terms of
the appointment) comply with the operator’s obligations under this Act as
if that person were the operator.
(2) The terms and conditions of appointment of a receiver, or a receiver
and manager, may exempt the appointee from the requirement to comply with
obligations of the operator specified or described in the order of
appointment.
(3) This section does not apply to the extent that it is inconsistent with
the Corporations Act 2001 of the Commonwealth.
53—No
personal liability of administrator, receiver or receiver and
manager
An administrator, a receiver or a receiver and manager (or any person
acting under the direction of an administrator, a receiver or a receiver and
manager) is not personally liable for an act or omission done or omitted in good
faith under this or any other Act.
54—Endorsement
of certificates of title
(1) If land is, or is to be, used as a retirement village, a note of that
fact must be endorsed on the relevant certificates of title before a residence
contract in respect of that retirement village is entered into.
(2) The owner of
land that is to be used as a retirement village must apply to the
Registrar-General for endorsement of the relevant certificates of title before
any residence contract relating to the retirement village is entered
into.
Maximum penalty: $35 000.
(3) An operator must not enter into a residence contract in respect of a
retirement village (or a proposed retirement village) on any land unless
satisfied that the endorsements on the relevant certificates of title have been
made in accordance with this section.
Maximum penalty: $35 000.
(4) Before an application is made under
subsection (2)
, the owner must notify each person who holds a mortgage, charge or
encumbrance over the land and, if the application relates to a retirement
village that had not been established before the commencement of this Act, the
application can only be made with the consent of each such person.
(5) The Registrar-General may cancel an endorsement made under this
section if satisfied that the land is no longer used, or to be used, as a
retirement village.
55—Lease
of land in retirement village
(1) The operator of a
retirement village may lease, or grant a licence to occupy, land within the
village that is not immediately required for the purposes of the
scheme.
(2) However, the operator must not, under
subsection (1)
, lease, or grant a licence to occupy, land within the village that has
formerly been occupied pursuant to the scheme unless the exit entitlement owing
to a former resident in relation to the cessation of such occupation has been
paid in full and all amounts deducted from the exit entitlement have been paid
to the relevant fund, account or person.
(3) Unless the Minister authorises a lease or licence for a longer term,
the term of any such lease or licence must not exceed 5 years.
(4) A person to whom a lease or licence is granted under this section does
not become a resident of the retirement village (and
Part 3
does not apply in relation to the person).
Note—
Such a lease would be subject to the
Residential
Tenancies Act 1995
.
(5) If a lease or licence is granted contrary to this section the operator
is guilty of an offence.
Maximum penalty: $10 000.
56—Termination
of retirement village scheme on application to Supreme
Court
(1) Subject to this Act, a retirement village scheme cannot be terminated
without the approval of the Supreme Court while a person who has entered into
occupation of a residence under the scheme remains in occupation of that
residence.
(2) The Minister will be a party to any proceedings in which the Supreme
Court's approval of the termination of a retirement village scheme is
sought.
(3) If the Supreme
Court approves the termination of a retirement village scheme it may make such
orders as it thinks necessary to protect the interests of existing
residents.
(4) Without limiting
subsection (3)
, if the Court makes an order under this section that will terminate
residence contracts, the Court—
(a) must fix in the order a date by which the residents who are affected
by the order must vacate their residential premises in the village;
and
(b) may order an operator or former operator (other than an administrator
appointed under
Part 4
) to pay compensation to each resident affected by the order for the
resident’s loss of rights under a residence contract; and
(c) may make such other orders as it thinks fit.
57—Voluntary
termination of retirement village scheme
(1) The Minister may, by notice in the Gazette, terminate a retirement
village scheme.
(2) The Minister may not terminate a retirement village scheme unless
satisfied (in such manner as the Minister thinks fit) that all residents of the
retirement village wish to terminate the scheme.
(3) The Minister may make such orders as the Minister thinks necessary or
appropriate on account of the termination of a retirement village scheme under
this section.
(4) The termination of a retirement village scheme will take effect from
the day specified for the purpose in the notice.
(5) The Registrar-General must, at the request of the Minister, take any
action for or in connection with the issue, alteration, correction or
cancellation of certificates of title necessary to give effect to the provisions
of this section.
(6) If the Minister requests the Registrar-General to give effect to a
particular determination or action, the Minister will, if so required by the
Registrar-General, furnish the Registrar-General with a certificate certifying
the determination or action.
58—Certain
persons not to be involved in the administration of a retirement
village
(1) A person to whom this section applies may not be concerned in the
administration or management of a retirement village.
Maximum penalty: $35 000.
(2) This section applies to—
(a) a person who is an insolvent under administration within the meaning
of the Corporations Act 2001 of the Commonwealth; or
(b) a person who—
(i) has during the preceding 5 years been convicted of an offence to the
person or an offence involving fraud or dishonesty; or
(ii) has served a sentence of imprisonment for an offence to the person or
an offence involving fraud or dishonesty, being a sentence that ended during the
preceding 5 years.
59—Non-compliance
may be excused by the Tribunal
(1) The Tribunal
may, on the application of any person, excuse that person from the consequences
of inadvertent non-compliance with a provision of this Act.
(2) If the Tribunal acts under
subsection (1)
, it may—
(a) make consequential orders protecting the interests of a person
affected by the contravention; and
(b) make any other order that the justice of the case may
require.
(3) An application may not be made under this section after proceedings
for an offence relating to the non-compliance have been commenced.
An agreement or arrangement that is inconsistent with a provision of this
Act or purports to exclude, modify or restrict the operation of this Act, or a
right conferred by or under this Act is to that extent void and of no effect
(except where such inconsistency, exclusion, modification or restriction is
expressly permitted by this Act).
(1) The regulations may prescribe codes of conduct to be observed by
operators and residents of retirement villages.
(2) It is a term of a residence contract that the operator and residents
will observe any code of conduct (subject to any agreement between the operator
and the resident that, pursuant to a power contained in the code of conduct,
provides for the exclusion or modification of a provision of the code of conduct
in the circumstances of the particular case).
(3) If an operator breaches a code of conduct, the operator is, in
addition to any civil remedy that may be available against the operator, liable
to a fine not exceeding $2 500 or an expiation fee of $210 as if the
operator had breached the regulations.
62—Representations
relating to retirement villages
(1) A person must not represent that a complex of residences is a
retirement village if the person knows, or could reasonably be expected to know,
that the complex is not a retirement village within the meaning of this
Act.
Maximum penalty: $10 000.
(2) A person must not represent that a residence is part of a retirement
village if the person knows, or could reasonably be expected to know, that the
residence is not part of a retirement village within the meaning of this
Act.
Maximum penalty: $10 000.
(3) A person must not represent that a complex of residences proposed to
be established will constitute a retirement village if the person knows, or
could reasonably be expected to know, that the complex will not constitute a
retirement village within the meaning of this Act.
Maximum penalty: $10 000.
(4) A person must not represent that a residence proposed to be built will
be part of a retirement village if the person knows, or could reasonably be
expected to know, that the residence will not be part of a retirement village
within the meaning of this Act.
Maximum penalty: $10 000.
(1) A prosecution
for an offence against this Act can only be commenced by the Minister or a
person authorised by the Minister.
(2) In proceedings for an offence against this Act, a document apparently
signed by the Minister that appears to be an authorisation for the purposes of
subsection (1)
will be accepted, in the absence of proof to the contrary, as proof of
such an authorisation.
(1) The Minister may delegate a power or function vested in or conferred
on the Minister by or under this Act—
(a) to a particular person or body; or
(b) to the person for the time being holding or acting in a particular
office or position.
(2) A power or function delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(3) A delegation—
(a) may be absolute or conditional; and
(b) does not derogate from the power of the delegator to act in a matter;
and
(c) is revocable at will by the delegator.
A notice or document required to be given to a person under this Act
may—
(a) be served on the person personally; or
(b) be posted in an envelope addressed to the person's last known address;
or
(c) be transmitted by fax or email to the person's fax number or email
address (in which case the notice or document will be taken to have been given
or served at the time of transmission).
(1) The Governor
may make such regulations as are contemplated by this Act, or as are necessary
or expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may—
(a) prescribe fees (including differential fees) for the purposes of this
Act and provide for the payment of fees at intervals and in such manner as may
be prescribed;
(b) prescribe amounts payable for late payment of fees so
prescribed;
(c) prescribe forms and the information to be contained in
forms;
(d) provide that a residence contract or other document required under
this Act must be printed or typewritten (apart from insertions or amendments) in
type of a prescribed kind and size;
(e) make provision in relation to the form or content of any document
referred to in this Act;
(f) make provision in relation to the keeping of records for the purposes
of this Act;
(g) require the preparation, and the provision to residents (or
prospective residents), of policies relating to matters prescribed by the
regulations;
(h) require the provision to residents (or prospective residents) of such
other information or documents as may be prescribed by the
regulations;
(i) prescribe penalties (not exceeding $2 500) for breach of a
regulation.
(3) The regulations—
(a) may be of general or limited application; and
(b) may leave any matter to be determined according to the opinion or
discretion of the Registrar-General or the Minister; and
(c) may incorporate, adopt or apply, with or without modifications, a
document formulated or published by any body or authority (as in force at a
particular time or from time to time).
Schedule 1—Proceedings
before the Tribunal
Subject to any variation or exclusion prescribed by the regulations, this
Schedule applies to proceedings before the Tribunal under this Act.
2—Application
to vary or set aside order
(1) A person who is
or was a party to proceedings before the Tribunal may apply to the Tribunal for
an order varying or setting aside an order, decision or direction made or given
in those proceedings.
(2) An application under
subclause (1)
must be made within 1 month of the making or giving of the order, decision
or direction (unless the Tribunal allows an extension of time).
(3) This clause does not limit any provision of the
South
Australian Civil and Administrative Tribunal Act 2013
.
(4) Proceedings under this clause do not constitute a review of a decision
for the purposes of section 34 or 70 of the
South
Australian Civil and Administrative Tribunal Act 2013
.
3—Presentation
of cases before Tribunal
(1) Except as provided in this clause, a party to proceedings before the
Tribunal under this Act must present his or her own case and not be represented
or assisted in the presentation of the case by another person.
(2) A party to proceedings before the Tribunal may be represented by an
agent or assisted by an agent in the presentation of his or her case if the
Tribunal is satisfied that—
(a) the party is unable to appear personally or conduct the proceedings
properly himself or herself; and
(b) no other party will be unfairly disadvantaged by the fact that the
agent is allowed so to act.
(3) All or any of
the parties to any proceedings before the Tribunal may be represented by legal
practitioners—
(a) if all the parties agree and the Tribunal is satisfied that any party
who is not so represented will not be unfairly disadvantaged; or
(b) if 1 of the parties is a legally qualified person; or
(c) if the proceedings involve an amount which exceeds $50 000 or
such other amount as is prescribed instead by regulation; or
(d) if the Tribunal
gives leave for such representation.
(4) If a party applies for leave permitting representation by a legal
practitioner under
subclause (3)(d)
, it must be granted if the Tribunal is satisfied—
(a) that the granting of leave is likely to reduce costs or shorten the
proceedings; or
(b) that the applicant would, if leave were not granted, be unfairly
disadvantaged.
(5) This clause
does not prevent—
(a) a body corporate from being represented by an officer or employee of
the body corporate (not being a legally qualified person) authorised to conduct
the proceedings on its behalf (whether or not he or she is remunerated by the
body corporate for representing it in the proceedings); or
(b) a person from acting as an interpreter for a party provided that his
or her fee does not exceed an amount fixed by the Tribunal at the
hearing.
(6) A person must not demand or receive any fee or reward for representing
or assisting a party to proceedings before the Tribunal unless—
(a) the person is a legal practitioner; or
(b) if the party is a body corporate—the person is an officer or
employee of the body corporate representing it under
subclause (5)
.
Maximum penalty: $750.
(7) In this clause—
agent means a person who is not a legally qualified
person;
legally qualified person means a legal practitioner, an
articled law clerk, or a person who holds or has held legal qualifications under
the laws of this State or any other place.
4—Costs
on referral of question of law
Any costs arising from the referral of a question of law to the Supreme
Court under section 26(2)(b) of the
South
Australian Civil and Administrative Tribunal Act 2013
, including costs incurred by the parties to the proceedings, must be paid
out of the General Revenue of the State and this Act, without any further
appropriation, is sufficient authority for such payment.
Schedule 2—Related
amendments, repeal and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Residential Tenancies
Act 1995
2—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of collateral
agreement—delete "no premium retirement village" and
substitute:
prescribed retirement village
(2) Section 3(1), definition of domestic services
agreement—delete "no premium retirement village" and
substitute:
prescribed retirement village
(3) Section 3(1), definition of no premium retirement
village—delete the definition
(4) Section 3(1)—after the definition of premises
insert:
prescribed retirement village means a complex of residential
premises or a number of separate complexes of residential premises that would be
a retirement village within the meaning of the
Retirement
Villages Act 2016
except that no resident or prospective resident of the village pays an
ingoing contribution (within the meaning of that Act) in consideration for, or
in contemplation of, admission as a resident of the village;
(5) Section 3(1), definition of rent, (b)—delete "no
premium retirement village" and substitute:
prescribed retirement village
3—Amendment
of section 5—Application of Act
(1) Section 5(1)(a)(v)—delete "
Retirement
Villages Act 1987
" and substitute:
(other than an agreement of a kind referred to in section 55 of that
Act)
(2) Section 5(1c)—delete "no premium retirement village" and
substitute:
prescribed retirement village
Part 3—Repeal
4—Repeal
of Retirement Villages
Act 1987
The
Retirement
Villages Act 1987
is repealed.
Part 4—Transitional
provisions
An exemption conferred by notice under section 4 of the
Retirement
Villages Act 1987
and in force immediately before the commencement of this clause continues
as if it were an exemption conferred by notice under
section 5
of this Act.
A person holding office as the Registrar under the
Retirement
Villages Act 1987
immediately before the commencement of this clause will continue as the
Registrar under this Act for the balance of his or her term of appointment (and
is then eligible for reappointment under this Act).
The register maintained under the
Retirement
Villages Act 1987
forms part of the register under this Act.
An appointment as an authorised officer issued under the
Retirement
Villages Act 1987
and in force immediately before the commencement of this clause, continues
as if it were an appointment under
Part 2
of this Act.
A residence contract that was entered into in compliance with the
Retirement
Villages Act 1987
before the commencement of this Act (and that is in force immediately
before the commencement of this Act) continues as if it were a residence
contract entered into in compliance with this Act.
(1) If a resident ceased to reside in a retirement village before the
commencement of
section 26
, that section applies in relation to the resident as if the period of 18
months referred to in
section 26(2)(b)
were the period of 18 months after the commencement of that
section.
(2) The Minister must ensure that a review on the operation of
section 26
is carried out as soon as practicable after the fifth anniversary of the
commencement of that section.
(3) The Minister must cause a report on the outcome of the review to be
tabled in both Houses of Parliament within 12 sitting days after its
completion.
11—Surplus
or deficit of accounts
(1) If 1 or more residence contracts in force in relation to a retirement
village immediately before the commencement of this clause do not make provision
for dealing with surplus and deficits, the operator of the village must, within
6 months after the commencement of this clause, hold a meeting of the residents
to adopt a policy as to the manner in which a surplus or a deficit will be dealt
with in relation to the village.
(2) A policy is only adopted if it is approved by a special resolution at
the meeting of residents.
(3) The operator must, as soon as practicable after a policy is adopted
under this clause, make the policy available for inspection by residents (in a
manner that ensures it is easily accessible by residents).
(4) If an operator fails to have a policy adopted as required by this
clause, the policy set out in the regulations for the purposes of this clause
will be taken to have adopted in relation to the retirement village.
(5) A policy adopted, or taken to be adopted, under this clause in
relation to a retirement village applies to each residence contract in force in
relation to the village that does not make provision for dealing with surplus
and deficits as if the policy formed part of the residence contract.
(6) In this clause—
deficit means a deficit in the accounts relating to recurrent
charges of a retirement village for any financial year commencing after the
commencement of this section;
surplus means a surplus in the accounts relating to recurrent
charges of a retirement village for any financial year.
(1) In this clause—
relevant day means the day on which the
Statutes
Amendment (SACAT) Act 2014
came into operation;
repealed Act means the
Retirement
Villages Act 1987
;
Residential Tenancies Tribunal means the Tribunal established
under the
Residential
Tenancies Act 1995
;
Tribunal means the South Australian Civil and Administrative
Tribunal established under the
South
Australian Civil and Administrative Tribunal Act 2013
.
(2) A right to make any application or to seek a review under the repealed
Act with respect to any matter in existence before the relevant day, with the
effect that the relevant proceedings would have been commenced before the
Residential Tenancies Tribunal, will be exercised as if this Act had been in
operation before the right arose, so that the relevant proceedings may be
commenced instead before the Tribunal.
(3) Nothing in this
clause affects a right to appeal to the District Court against a decision,
direction or order of the Residential Tenancies Tribunal made or given before
the relevant day (as the right existed under section 39 of the repealed Act
before the relevant day).
13—Application
of offences under
section 62
A person does not commit an offence against
section 62
in respect of a representation contained in, or made in relation to, a
lease or other contract or agreement entered into before the commencement of
that section.
(1) The regulations may make provisions of a savings or transitional
nature consequent on the repeal of the
Retirement
Villages Act 1987
and the enactment of this Act.
(2) For the avoidance of doubt, any such provision may, if the regulations
so provide, have effect despite any specified provision of this Act (including a
provision of this Schedule).
(3) Any such provision may, if the regulations so provide, take effect
from the date of commencement of the provision of this Act to which the
provision relates or a later date.
(4) To the extent to which any such provision takes effect from a date
that is earlier than the date of its publication in the Gazette, the provision
does not operate so as—
(a) to affect, in a manner prejudicial to any person (other than the State
or an authority of the State), the rights of that person existing before the
date of its publication; or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to be done before
the date of its publication.