Retirement Villages Act 1999 (Qld)

Retirement Villages Act 1999

An Act to provide for the establishment and operation of retirement villages, and for other purposes

Part 1    Preliminary

Division 1 Introduction

1   Short title

This Act may be cited as the Retirement Villages Act 1999.

2   Commencement

This Act commences on a day to be fixed by proclamation.

Division 2 Objects of Act and relationship with FTI Act

3   Objects

(1)The main objects of this Act are—

(a)to promote consumer protection and fair trading practices in operating retirement villages and in supplying services to residents by—

(i)declaring particular rights and obligations of residents and scheme operators; and

(ii)facilitating the disclosure of information to prospective residents of a retirement village to ensure the rights and obligations of the residents and scheme operator may be easily understood; and

(b)to encourage the continued growth and viability of the retirement village industry in the State.

(2)The following are also objects of this Act—

(a)to maintain public confidence in the retirement village industry by enhancing—

(i)the financial transparency of the operations of retirement villages; and

(ii)the accountability of scheme operators;

(b)to encourage the adoption of best practice standards by the retirement village industry;

(c)to provide a clear regulatory framework to ensure certainty for the retirement village industry in planning for future expansion;

(d)to facilitate participation by residents, who want to be involved, in the affairs of retirement villages;

(e)to provide for processes for resolving disputes between residents and scheme operators.

3A   Relationship with Fair Trading Inspectors Act 2014

(1)The Fair Trading Inspectors Act 2014 (the FTI Act) enacts common provisions for this Act and particular other Acts about fair trading.

(2)Unless this Act otherwise provides in relation to the FTI Act, the powers that an inspector has under that Act are in addition to and do not limit any powers the inspector may have under this Act.

(3)In this section—

inspector means a person who holds office under the FTI Act as an inspector for this Act.

Note—

See also the modifying provision for this Act stated in the FTI Act, section 8.

Division 3 Interpretation and basic concepts

4   Definitions

The dictionary in the schedule defines particular words used in this Act.

5   What is a retirement village

(1)A retirement village is premises where older members of the community or retired persons reside, or are to reside, in independent living units or serviced units, under a retirement village scheme.

(2)In this section—

premises does not include a site within the meaning of the Manufactured Homes (Residential Parks) Act 2003.

6   What is retirement village land

Land is retirement village land if the land is used, or to be used, for a retirement village and, for land included in a community titles scheme, includes the lots and common property into which the land is subdivided.

7   What is a retirement village scheme

A retirement village scheme is a scheme under which a person—

(a)enters into a residence contract; and

(b)in consideration for paying an ingoing contribution under the residence contract, acquires personally or for someone else, a right to reside in a retirement village, however the right accrues; and

(c)on payment of the relevant charge, acquires personally or for someone else, a right to receive 1 or more services in relation to the retirement village.

8   Who is a retirement village scheme operator

A person is a retirement village scheme operator if the person, alone or with someone else, controls the scheme’s operation or purports to control the scheme’s operation.

9   Who is a resident

A resident of a retirement village is a person who has a right to reside in the retirement village and a right to receive 1 or more services in relation to the retirement village under a residence contract.

10   What is a residence contract

(1)A residence contract is 1 or more written contracts, other than an excluded contract, about residence in a retirement village entered into between a person and the scheme operator.

(2)A residence contract includes any other contract (an ancillary contract) between the person and the scheme operator if the ancillary contract is dependent on, or arises out of, the making of the residence contract or another ancillary contract.

(3)Without limiting the interests that a residence contract may be based on, a residence contract may be based on a freehold interest in an accommodation unit.

(4)To be a residence contract, a contract must—

(a)either—

(i)purport to give a person, or give rise to a person having, an exclusive right to reside in an accommodation unit in the retirement village; or

(ii)provide for, or give rise to, obligations on a person in relation to the person’s or someone else’s residence in the retirement village; and

(b)purport to give a person, or give rise to a person having, a right in common with other residents in the retirement village, to use and enjoy the retirement village’s communal facilities; and

(c)contain or incorporate—

(i)a service agreement or an agreement to enter into a service agreement that includes a copy of the service agreement; and

(ii)if the contract includes an ancillary agreement that is not signed contemporaneously with the contract, an agreement to enter into the ancillary agreement that includes a copy of the ancillary agreement; and

(d)restrict the way in which, or the persons to whom—

(i)the right to reside in the retirement village may be disposed of during the resident’s lifetime; or

(ii)if the contract is based on a freehold interest in an accommodation unit—the resident’s freehold property may be disposed of during the resident’s lifetime.

11   What is an existing residence contract

An existing residence contract is a residence contract existing immediately before the commencement of this Act.

11A   What is freehold property of a resident or former resident

(1)A freehold interest in an accommodation unit is a resident’s freehold property if—

(a)the freehold interest is—

(i)held by the resident; or

(ii)held by another person but not held directly or indirectly by the scheme operator; and

Examples for subparagraph (ii)—

•a freehold interest in an accommodation unit held by—

•the trustee of a trust in which the resident holds an interest; or

•a corporation in which the resident holds shares; or

•the resident’s child or another family member

(b)the resident has a right to reside in the accommodation unit.

(2)A freehold interest in an accommodation unit is a former resident’s freehold property if—

(a)the freehold interest is—

(i)held by the former resident; or

(ii)held by another person but not held directly or indirectly by the scheme operator; and

(b)the former resident had a right to reside in the accommodation unit that has been terminated under this Act.

12   What is a service agreement

(1)A service agreement is an agreement made between a person and a scheme operator under which general services or personal services are to be supplied for or to the person or someone else when the person or other person becomes a resident of a retirement village.

(2)A service agreement may be in a residence contract.

13   [Repealed]

14   What is an ingoing contribution

(1)An ingoing contribution is the amount payable by a person under a residence contract to secure the person’s, or someone else’s, right to reside in a retirement village, but does not include a recurrent payment for rent, fees or charges.

(2)It is immaterial whether—

(a)the right to reside in the village is enforceable or not; or

(b)the payment alone secures the right, or something else is also required to secure it.

15   What is an exit fee

(1)An exit fee is the amount that a resident may be liable to pay to, or credit the account of, a scheme operator under a residence contract arising from—

(a)the resident ceasing to reside in the accommodation unit to which the contract relates; or

(b)the settlement of the sale of the right to reside in the accommodation unit.

(2)The exit fee for a residence contract, including an existing residence contract, that a resident may be liable to pay to, or credit the account of, the scheme operator is to be calculated as at—

(a)the day the resident ceases to reside in the accommodation unit to which the residence contract relates; or

(b)if a relative of the resident resides in the accommodation unit under section 70B(2)—the sooner of the following days—

(i)the day the relative vacates the accommodation unit;

(ii)the day that is 3 months after the resident’s right to reside in the accommodation unit under the residence contract is terminated under this Act.

Notes—

1Subsection (2) states the day at which the exit fee for a residence contract is to be worked out, and not the method of working out the exit fee.

2Section 53A states how to work out the exit fee for a residence contract that is worked out under the contract having regard to the length of time the resident has resided in the unit.

(3)Subsection (2) applies despite anything to the contrary in an existing residence contract.

(4)In this section, a reference to a resident includes a reference to a person, other than a scheme operator, who enters into a residence contract for the purpose of giving someone else a right to reside in the retirement village.

Example for subsection (4)—

Mr Smith enters into a residence contract with a scheme operator which gives Mr Smith’s mother the right to reside in the retirement village. For this section, a reference to a resident includes not only Mr Smith’s mother who has a right to reside in the retirement village but also Mr Smith.

16   What is an exit entitlement

(1)An exit entitlement is the amount that a scheme operator may be liable to pay to, or credit the account of, a former resident under a residence contract arising from—

(a)the resident ceasing to reside in the accommodation unit to which the contract relates; or

(b)the settlement of the sale of the right to reside in the accommodation unit.

(2)In this section, a reference to a former resident includes a reference to a person, other than a scheme operator, who enters into a residence contract for the purpose of giving someone else a right to reside in the retirement village.

17   What is a capital replacement fund

A capital replacement fund is a fund established under section 91 for replacing the retirement village’s capital items.

18   [Repealed]

18A   What is a general services charges fund

A general services charges fund is a fund established under section 102AA for general services.

18B   What is a general services charge

A general services charge is a charge payable by a resident in a retirement village, of an amount decided by the scheme operator under the resident’s residence contract, for the general services supplied to residents in the village for a financial year.

19   What is a maintenance reserve fund

A maintenance reserve fund is a fund established under section 97 for maintaining and repairing the retirement village’s capital items.

20   What is a maintenance reserve fund contribution

A maintenance reserve fund contribution is an amount payable by a resident to the scheme operator, under the resident’s residence contract, as a contribution to the maintenance reserve fund.

21   What is a retirement village dispute

(1)A retirement village dispute is a dispute between a scheme operator and a resident of a retirement village about the parties’ rights and obligations under the resident’s residence contract or this Act.

(2)For subsection (1), a retirement village dispute includes a dispute about compliance by a scheme operator or a resident with this Act, whether or not a particular failure to comply is an offence against this Act.

(3)In this section—

resident includes a former resident.

Note—

In some provisions of this Act there is no means of enforcement apparent on the face of the provision but enforcement by the dispute resolution process is available because of this section.

22   What is a retirement village issue

A retirement village issue is—

(a)a retirement village dispute; or

(b)an application for an order under sections 169 to 171 or 173.

Division 4 Operation of Act

23   Application of Act

This Act applies to—

(a)a retirement village scheme, including a scheme for a retirement village to which the Body Corporate and Community Management Act 1997 applies, the scheme operator and inducements and invitations to enter into the scheme if—

(i)the retirement village is, or is to be, situated in the State, irrespective of where the scheme is operated or inducements or invitations to enter into the scheme are given or published; or

(ii)the scheme is operated in the State, irrespective of where the retirement village is, or is to be, situated or inducements or invitations to enter into the scheme are given or published; and

(b)a residence contract entered into before or after the commencement of this section, unless this Act states otherwise.

24   Application of Body Corporate and Community Management Act 1997

If there is an inconsistency between this Act and the Body Corporate and Community Management Act 1997 in relation to a person’s rights and obligations under a retirement village scheme, this Act prevails to the extent of the inconsistency.

25   Application of Fair Trading Act 1989

This Act does not limit the application of the Fair Trading Act 1989, including the Australian Consumer Law (Queensland) forming part of that Act, to the acquisition, under a residence contract, of goods or services, within the meaning of that Act.

26   Certain age restrictions on residence not unlawful

Despite the Anti-Discrimination Act 1991, it is not unlawful for a scheme operator to discriminate on the basis of age if the discrimination merely limits residence in a retirement village to older members of the community and retired persons.

Part 2    Retirement village schemes

Division 1 Registration

27   Application for registration of a retirement village scheme

(1)A person may apply to the chief executive to register a retirement village scheme.

Note—

See part 15 for transitional and savings provisions about existing retirement village schemes.

(2)The application must be in the approved form and accompanied by—

(a)particulars of the following—

(i)the land on which the retirement village’s buildings and facilities are, or are to be, constructed;

(ii)the accommodation units and communal facilities the scheme operator undertakes are, or are to be, available for the village when the scheme is registered;

(iii)the accommodation units and communal facilities the scheme operator intends to make available for the village after the scheme is registered, depending on the sales activity, finance availability, or market conditions, for the village;

(iv)the terms under which persons are, or are to be, invited to enter into the scheme under the residence contracts for the retirement village;

(v)other particulars of the scheme prescribed under a regulation; and

(b)a copy of the village comparison document for the scheme; and

(c)the application fee prescribed under a regulation; and

(d)if, before or when the application is made, the chief executive requires the payment of costs under section 88AA(1)—the amount of the costs required to be paid.

(3)A requirement mentioned in subsection (2)(d) is sufficiently made of the applicant if it is made generally of applicants in the approved form or notified on the department’s website.

28   Registration of retirement village scheme

(1)The chief executive may register, or refuse to register, a retirement village scheme for which an application for registration has been made.

(2)The chief executive’s decision must be made within 60 days of the later of—

(a)the day the application is received; or

(b)if the particulars with the application do not conform with the requirements of section 27(2) and the chief executive asks for further particulars, the day the particulars are given.

(3)The chief executive may register the scheme only if satisfied—

(a)the application complies with section 27; and

(b)the applicant is not prohibited from operating a retirement village scheme under section 88.

(4)If the chief executive registers the scheme, the chief executive must promptly give the applicant a registration certificate, in the approved form, stating the day the scheme was registered.

(5)If the chief executive refuses to register the scheme, the chief executive must promptly give the applicant a QCAT information notice for the decision.

(6)If the chief executive fails to decide the application in the time required under subsection (2), the chief executive is taken to have refused the application.

Note—

See section 29 about applying to the tribunal to review a refusal decision made, or taken to have been made, by the chief executive under this section.

28A   Deregistration of retirement village scheme

(1)This section applies if the chief executive reasonably believes that either—

(a)a scheme operator is implementing an approved closure plan for a retirement village scheme; or

(b)a retirement village scheme is no longer operating.

(2)The chief executive may, by written notice (a deregistration notice) given to the scheme operator, deregister the scheme, effective from—

(a)if subsection (1)(a) applies—the day that, under the approved closure plan, the scheme will stop operating; or

(b)if subsection (1)(b) applies—30 days after the deregistration notice is given to the scheme operator.

(3)The chief executive must also give the scheme operator a QCAT information notice for the decision.

29   Application to QCAT for review

(1)A person whose application to register a retirement village scheme has been refused, or is taken to have been refused, may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

(2)However, if the chief executive is taken to have refused the application under section 28, the period within which the person may apply to the tribunal for a review of the decision is 88 days after the application to register the scheme was made.

(3)The scheme operator may apply, as provided under the QCAT Act, to the tribunal for a review of the chief executive’s decision to deregister a retirement village scheme.

30   [Repealed]

31   [Repealed]

32   [Repealed]

33   [Repealed]

34   Offence to operate etc. an unregistered retirement village scheme

(1)If a retirement village scheme is not registered, the scheme operator or proposed scheme operator must not—

(a)operate the scheme; or

(b)induce or invite a person to participate in the scheme by—

(i)residing in the retirement village to which the scheme relates; or

(ii)paying an ingoing contribution; or

(iii)doing another act in relation to the scheme; or

(c)use a document, or publish an advertisement, to induce or invite a person to participate in the scheme by—

(i)residing in the retirement village to which the scheme relates; or

(ii)paying an ingoing contribution; or

(iii)doing another act in relation to the scheme; or

(d)extend an existing retirement village.

Maximum penalty—540 penalty units.

(2)However, the scheme operator or proposed scheme operator does not contravene subsection (1)(c) if the document or advertisement merely invites expressions of interest in the scheme.

(3)In this section—

advertisement includes an advertisement made by publishing a statement or claim—

(a)in a document, including a newspaper or magazine; or

(b)by broadcast, electronic communication, telecommunication, video or film.

induce includes attempt to induce.

Division 2 Retirement village scheme register

35   Retirement village scheme register

(1)The chief executive must keep a register for retirement village schemes.

(2)The register must include the following items (the records) for each registered scheme—

(a)copies of the following documents—

(i)the registration certificate;

(ii)the village comparison document and notices about material changes to information in the village comparison document given under section 74(5);

(iii)if former section 36 applies to the scheme operator under section 237I—the public information document and notices about inaccuracies in the public information document given under former section 36;

(b)the particulars of the scheme mentioned in section 27(2)(a);

(c)a copy of each independent quantity surveyor’s written report given to the chief executive under section 92(6) or 98(8);

(d)the annual financial statements and audit reports given to the chief executive under section 113(4).

(3)The records are to be kept on the register for at least 10 years.

(4)A person may, on payment of the fee prescribed under a regulation—

(a)inspect the register at a place or places decided by the chief executive; or

(b)take extracts from, or obtain a copy of details in, the register.

(5)The register may be kept in any form that allows a person to have access to it under subsection (4).

(6)In this section—

former see section 237H.

36   [Repealed]

37   [Repealed]

Division 3 Chief executive may apply for court orders

38   Chief executive may apply for order appointing a manager of a retirement village

(1)The chief executive may apply to the District Court for a management order if the chief executive reasonably believes—

(a)the scheme operator has not complied with section 40A(2), 40B(1), 40F(1) or (2), 41C(2), 41D(1), 41H(1) or (2), 113D or 113H(1) or (2); or

(b)the order is otherwise necessary to protect the interests of residents of a particular retirement village.

(2)In urgent circumstances—

(a)the application may be made ex parte; and

(b)the management order may be made on an interim basis.

(3)If the court makes a management order, it may, at any time, make any ancillary order it considers necessary to support the management order.

(4)A manager appointed under a management order must, at the request of the chief executive, report to the chief executive about how the manager has exercised, or will exercise, functions of the scheme operator under the order.

Maximum penalty—100 penalty units.

(5)If a manager is appointed under a management order to exercise a function of a scheme operator, this Act applies to the exercise of the function as if the manager were the scheme operator.

(6)In this section—

management order means an order appointing a stated person, as manager of a retirement village, to exercise—

(a)all the functions of the scheme operator; or

(b)stated functions of the scheme operator; or

(c)all the functions, other than stated functions, of the scheme operator.

38A   Management and administration of retirement village scheme by manager

(1)An expense incurred by a manager in, or an amount charged by a manager for, exercising functions of a scheme operator must be paid from—

(a)the general services charges fund; or

(b)another fund from which the scheme operator would have been able to pay the expense if the manager had not been appointed.

(2)The State is not liable for—

(a)an expense incurred by a manager in exercising functions of a scheme operator; or

(b)any liability of a scheme operator if a manager is appointed to exercise functions of the scheme operator.

(3)To remove any doubt, it is declared that the exercise of a function of a scheme operator by a manager is not a service for the purpose of section 108.

(4)In this section—

manager means a manager appointed under section 38.

39   Additional power of chief executive to seek an order

(1)This section applies if the chief executive considers, on reasonable grounds, that a person is contravening section 34.

(2)The chief executive may apply to the District Court for an order to stop the person from contravening the section.

(3)The court may make any order, including an interim order, it considers appropriate.

Division 4 Cancelling registration of retirement village

40   Definition for division

In this division—

residents meeting notice see section 40B(1)(b).

40A   Notice about cancelling registration

(1)This section applies if a scheme operator proposes to close a retirement village scheme.

(2)The operator must give the chief executive notice about the proposal in the approved form.

Maximum penalty—100 penalty units.

(3)For subsection (1), a scheme operator proposes to close a retirement village scheme if the scheme operator proposes to—

(a)wind down the retirement village scheme; or

(b)stop operating the retirement village scheme, including temporarily.

40B   Requirement to prepare closure plan

(1)The scheme operator must, within 28 days of giving a notice under section 40A(2) (the notice period) or any extension of the notice period granted under subsection (3), give each resident of the retirement village—

(a)a proposed closure plan for the retirement village scheme; and

(b)a notice (a residents meeting notice), in the approved form, that states—

(i)if the proposed closure plan is not approved under section 40D(1)(a), within a stated reasonable period that is not less than 21 days after the giving of the residents meeting notice, the scheme operator may apply to the chief executive for approval of the proposed closure plan under section 40D(1)(b); and

(ii)if the chief executive approves the proposed closure plan under section 40D(1)(b), a resident may apply to the tribunal for a review of the decision under section 41A.

Maximum penalty—100 penalty units.

(2)The scheme operator may, within the notice period, apply to the chief executive for an extension of the notice period.

(3)The chief executive may grant the extension if the chief executive is satisfied it is not reasonably practicable for the scheme operator to comply with subsection (1) within the notice period.

40C   Meaning of closure plan

(1)A closure plan, for a retirement village scheme, is a written plan about closing the retirement village scheme.

(2)A closure plan for a retirement village scheme must be in the approved form and state the matters prescribed by regulation.

40D   Approval of closure plan

(1)A proposed closure plan may be approved—

(a)by the residents, by a special resolution at a residents meeting; or

(b)on application under subsection (3), by the chief executive.

(2)If the proposed closure plan is approved under subsection (1)(a), the scheme operator must give the chief executive a copy of the approved closure plan within 14 days of the vote.

(3)The scheme operator may apply to the chief executive for approval of a proposed closure plan if—

(a)the residents, by special resolution at a residents meeting, vote against the approval of the proposed closure plan; or

(b)the proposed closure plan is not approved under subsection (1)(a) within the period stated in the residents meeting notice.

(3A)Before deciding the application, the chief executive must—

(a)give each resident of the retirement village a written notice stating that—

(i)the scheme operator has applied for approval of the proposed closure plan; and

(ii)the resident may make submissions to the chief executive about the proposed closure plan in a stated way and by a stated day; and

(b)if a resident of the retirement village requests a copy of the proposed closure plan—give a copy of the proposed closure plan to the resident; and

(c)have regard to any submissions made to the chief executive by the residents in the stated way and by the stated day.

(4)After receiving an application for approval of a proposed closure plan, the chief executive must decide—

(a)to approve the plan; or

(b)to give the scheme operator a written direction to take action, or particular action, to revise the plan.

(4A)The chief executive’s decision must be made within 90 days of the later of—

(a)the day the application is received; or

(b)if the chief executive reasonably requires further information for the purpose of making the decision and asks the scheme operator for the further information—the day the information is given.

(5)The chief executive may approve the proposed closure plan only if the chief executive is satisfied the plan provides for a clear, orderly and fair process for the closure of the retirement village scheme.

(6)If the chief executive approves the proposed closure plan, the chief executive must give—

(a)written notice of the decision to the scheme operator; and

(b)a QCAT information notice for the decision to each resident.

(7)Before giving a direction under subsection (4)(b), the chief executive must—

(a)give the operator a written notice stating—

(i)that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the proposed closure plan (the proposed action); and

(ii)the particulars of the action to be taken; and

(iii)the reasons for the proposed action; and

(iv)that the operator may make written submissions to the chief executive about the proposed action before a stated day; and

(b)have regard to any written submissions made to the chief executive by the operator before the stated day.

(8)If the chief executive gives a direction under subsection (4)(b), the chief executive must also give the operator a QCAT information notice for the decision.

(9)If the chief executive fails to decide the application in the time required under subsection (4A), the chief executive is taken to have approved the proposed closure plan.

40E   Revision of approved closure plan

(1)The chief executive may, on the chief executive’s own initiative or on the application of the scheme operator, give the scheme operator a written direction to take action, or particular action, to revise an approved closure plan.

(2)The chief executive may approve the revised closure plan only if the chief executive is satisfied the revised closure plan provides for a clear, orderly and fair process for the closure of the retirement village scheme.

(3)If the chief executive approves the revised closure plan, the chief executive must give—

(a)written notice of the decision to the scheme operator; and

(b)a QCAT information notice for the decision to each resident.

(4)Before giving a direction under subsection (1) to a scheme operator on the chief executive’s own initiative, the chief executive must—

(a)give the operator a written notice stating—

(i)that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the approved closure plan (the proposed action); and

(ii)the particulars of the action to be taken; and

(iii)the reasons for the proposed action; and

(iv)that the operator may make written submissions to the chief executive about the proposed action before a stated day; and

(b)have regard to any written submissions made to the chief executive by the operator before the stated day.

(5)If the chief executive gives a direction under subsection (1) to a scheme operator on the chief executive’s own initiative, the chief executive must also give the operator a QCAT information notice for the decision.

40F   Requirement to implement approved closure plan

(1)A scheme operator must, when closing a retirement village scheme, comply with an approved closure plan for the retirement village scheme.

Maximum penalty—100 penalty units.

(2)The scheme operator must, at the request of the chief executive, notify the chief executive about how the approved closure plan is being implemented by the scheme operator.

Maximum penalty—100 penalty units.

40G   Discontinuing closure of retirement village scheme

(1)This section applies if—

(a)a scheme operator has given a notice to the chief executive under section 40A(2); and

(b)the scheme operator decides not to proceed with the closure of the retirement village scheme.

(2)The operator must give the chief executive, and each resident of the retirement village, notice (a notice of discontinuation) of the decision in the approved form.

Maximum penalty—100 penalty units.

(3)If the operator gives a notice of discontinuation to the chief executive, any approved closure plan, for the closure of the retirement village scheme, is no longer approved.

40H   Applying to cancel registration

(1)A scheme operator may ask the chief executive to cancel the registration of the retirement village scheme if the operator—

(a)stops operating the scheme; or

(b)proposes to stop operating the scheme.

(2)The request must be written.

41   Cancelling registration

(1)Subsection (2) applies if—

(a)the scheme operator asks the chief executive to cancel the registration of the retirement village scheme under section 40H; and

(b)if a statutory charge existed over the retirement village land—the chief executive has released the charge; and

(c)the chief executive is satisfied—

(i)the scheme operator has implemented the approved closure plan for the retirement village scheme; and

(ii)cancelling the registration of the retirement village scheme is appropriate.

(2)The chief executive may—

(a)cancel the registration of the scheme; and

(b)record the cancellation in the register.

41A   Application to tribunal for review

A person who has been given a QCAT information notice under this division may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

Division 5 Change of scheme operator

41B   Definitions for division

In this division—

existing scheme operator see section 41C(1).

new scheme operator see section 41C(1).

41C   Notice about change of scheme operator

(1)This section applies if a scheme operator (the existing scheme operator) proposes to transfer control of a retirement village scheme’s operation to another person (the new scheme operator).

(2)The existing scheme operator must give the chief executive notice about the proposal in the approved form.

Maximum penalty—100 penalty units.

41D   Requirement to prepare transition plan

(1)The existing scheme operator must, within 28 days of giving a notice under section 41C(2) (the notice period) or any extension of the notice period granted under subsection (3), give the chief executive a proposed transition plan for the change of scheme operator.

Maximum penalty—100 penalty units.

(2)The existing scheme operator may, within the notice period, apply to the chief executive for an extension of the notice period.

(3)The chief executive may grant the extension if the chief executive is satisfied it is not reasonably practicable for the existing scheme operator to comply with subsection (1) within the notice period.

41E   Meaning of transition plan

(1)A transition plan, for a retirement village scheme, is a written plan about transitioning control of the scheme’s operation from the existing scheme operator to the new scheme operator.

(2)A transition plan for a retirement village scheme must be in the approved form and state the matters prescribed by regulation.

41F   Approval of transition plan

(1)After receiving the proposed transition plan, the chief executive must decide—

(a)to approve the proposed transition plan; or

(b)to give the existing scheme operator a written direction to take action, or particular action, to revise the proposed transition plan.

(1A)The chief executive’s decision must be made within 90 days of the later of—

(a)the day the proposed transition plan is received; or

(b)if the chief executive reasonably requires further information for the purpose of making the decision and asks the existing scheme operator or the new scheme operator for the further information—the day the information is given.

(2)The chief executive may approve the proposed transition plan only if the chief executive is satisfied the plan provides for a clear, orderly and fair process for transitioning control of the scheme’s operation from the existing scheme operator to the new scheme operator.

(3)For the purpose of deciding whether or not to approve the proposed transition plan, the chief executive may—

(a)give a copy of the plan to a person whom the chief executive reasonably considers has an interest in the transitioning of the control of the scheme’s operation; and

(b)receive and consider submissions from the person about the transitioning of the control of the scheme’s operation.

(4)If the chief executive approves the proposed transition plan, the chief executive must give—

(a)written notice of the decision to the existing scheme operator and the new scheme operator; and

(b)a QCAT information notice for the decision to each resident.

(5)Before giving a direction under subsection (1)(b), the chief executive must—

(a)give the operator a written notice stating—

(i)that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the proposed transition plan (the proposed action); and

(ii)the particulars of the action to be taken; and

(iii)the reasons for the proposed action; and

(iv)that the operator may make written submissions to the chief executive about the proposed action before a stated day; and

(b)have regard to any written submissions made to the chief executive by the operator before the stated day.

(6)If the chief executive gives a direction under subsection (1)(b), the chief executive must also give the operator a QCAT information notice for the decision.

(7)If the chief executive fails to decide whether or not to approve the proposed transition plan in the time required under subsection (1A), the chief executive is taken to have approved the proposed transition plan.

41G   Revision of approved transition plan

(1)The chief executive may, on the chief executive’s own initiative or on the application of the existing scheme operator, give the existing scheme operator a written direction to take action, or particular action, to revise an approved transition plan.

(2)The chief executive may approve the revised transition plan only if the chief executive is satisfied the revised transition plan provides for a clear, orderly and fair process for the transitioning of the control of the scheme’s operation from the existing scheme operator to the new scheme operator.

(3)If the chief executive approves the revised transition plan, the chief executive must give—

(a)written notice of the decision to the existing scheme operator and the new scheme operator; and

(b)a QCAT information notice for the decision to each resident.

(4)Before giving a direction under subsection (1) to the existing scheme operator on the chief executive’s own initiative, the chief executive must—

(a)give the operator a written notice stating—

(i)that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the approved transition plan (the proposed action); and

(ii)the particulars of the action to be taken; and

(iii)the reasons for the proposed action; and

(iv)that the operator may make written submissions to the chief executive about the proposed action before a stated day; and

(b)have regard to any written submissions made to the chief executive by the operator before the stated day.

(5)If the chief executive gives a direction under subsection (1) to the existing scheme operator on the chief executive’s own initiative, the chief executive must also give the operator a QCAT information notice for the decision.

41H   Requirement to implement approved transition plan

(1)The existing scheme operator and new scheme operator must, when transitioning control of the scheme’s operation from the existing scheme operator to the new scheme operator, comply with an approved transition plan for the retirement village scheme.

Maximum penalty—100 penalty units.

(2)The existing scheme operator and new scheme operator must, at the request of the chief executive, notify the chief executive about how the approved transition plan is being implemented.

Maximum penalty—100 penalty units.

41I   Discontinuing change of scheme operator

(1)This section applies if—

(a)an existing scheme operator has given a notice to the chief executive under section 41C(2); and

(b)the existing scheme operator and the new scheme operator decide not to proceed with the transfer of the control of the retirement village scheme’s operation.

(2)The existing scheme operator must give the chief executive notice (a notice of discontinuation) of the decision in the approved form.

Maximum penalty—100 penalty units.

(3)If the existing scheme operator gives a notice of discontinuation to the chief executive, any approved transition plan, about the transitioning of the control of the retirement village scheme’s operation from the existing scheme operator to the new scheme operator, is no longer approved.

41J   Effect of change of scheme operator

(1)This section applies if control of a retirement village scheme’s operation is transferred (the transfer) from an existing scheme operator to a new scheme operator.

(2)Within 14 days after the transfer takes effect, the new scheme operator must give, to each resident of the retirement village, a notice stating—

(a)the scheme operator for the retirement village scheme has changed; and

(b)the name, address and telephone number of the new scheme operator; and

(c)the date the transfer took effect.

Maximum penalty—10 penalty units.

(3)Without limiting part 3, division 6, on and from the date the transfer takes effect the new scheme operator—

(a)is the scheme operator for the retirement village scheme; and

(b)obtains the benefits, and is subject to the obligations, of the previous scheme operator in relation to a residence contract associated with the retirement village scheme.

41K   Application to tribunal for review

A person who has been given a QCAT information notice under this division may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

Part 3    Residence contracts

Division 1 Purpose and intention of part

42   Purpose and intention of part

(1)The purpose of this part is to state minimum requirements for residence contracts.

(2)However, it is not the intention of this part to prevent a scheme operator agreeing in a residence contract or otherwise to conditions that are more beneficial to a resident or former resident than the provisions of this part.

Division 2 General

43   Scheme operator may enter into residence contract only if scheme is registered

(1)A scheme operator may enter into a residence contract for the retirement village with someone else only if the scheme is registered under this Act.

Maximum penalty—540 penalty units.

(2)If a scheme operator enters into a residence contract in contravention of subsection (1), the contract is not invalid or unenforceable for that reason only, but may be terminated under section 52.

44   Person signing residence contract to be given copy

When a person signs a residence contract with a scheme operator, the operator must immediately give the person a single bound document comprised of—

(a)a signed copy of the contract; and

(c)if it is intended to enter into another contract, the terms of which are known, that is ancillary to the residence contract—an unsigned copy of the other contract.

Maximum penalty—100 penalty units.

45   Form and content of residence contract

(1)A scheme operator must ensure each residence contract for the retirement village includes details, including the details prescribed by regulation, about the following—

(a)the right to rescind the contract under section 48 before the cooling-off period ends;

(b)if the cooling-off period starts on the day the residence contract is signed—the date the cooling-off period ends;

(c)if the cooling-off period starts on the day a later event happens or another contract is entered into—the later event or other contract;

(d)the ingoing contribution payable under the contract;

(e)the exit fee payable under the contract;

(f)the resident’s exit entitlement;

(g)the services charges;

(h)the amounts payable, and when the amounts are payable, by the resident for the maintenance reserve fund for the retirement village;

(i)the insurance for the retirement village, and insurance for which the resident is responsible;

(j)all conditions precedent to the resident’s right to reside in the retirement village;

(k)the resident’s right to resell the right to reside in the accommodation unit;

(l)the resident’s entitlement to audited and unaudited financial statements for the village;

(m)the dispute resolution process established under this Act;

(n)the statutory charge, if relevant to the resident’s title to, or interest in, the accommodation unit;

(o)the resident’s and scheme operator’s rights to terminate the contract;

(p)the funds the scheme operator is required to keep;

(q)the retirement village facilities;

(r)the retirement village land;

(s)whether the resident and the scheme operator are to share any capital gain or capital loss after the resident’s right to reside in the unit is terminated and, if so, how it is to be shared;

(t)another matter prescribed by regulation.

(2)A regulation may prescribe a term that must be included in a residence contract (a required term) or that must not be included in a residence contract (a prohibited term).

(3)A scheme operator must not enter into a residence contract that—

(a)is not in the approved form; or

Note—

See section 227AA(2).

(b)does not include details required under subsection (1); or

(c)does not include a required term; or

(d) includes a prohibited term.

Maximum penalty—100 penalty units.

(4)A provision of a residence contract is of no effect to the extent it—

(a)includes a prohibited term; or

(b)purports to restrict or exclude the operation of a provision of this Act; or

(c)is otherwise inconsistent with this Act.

45A   Scheme operator to give notice of end of cooling-off period in particular circumstances

(1)This section applies if the cooling-off period for a residence contract starts on the day a later event happens or another contract is entered into.

(2)The scheme operator must, as soon as practicable after the later event happens or the other contract is entered into, give the resident written notice of—

(a)the date the later event happens or the other contract is entered into; and

(b)the date the cooling-off period ends.

Maximum penalty—100 penalty units.

46   Dealing with ingoing contribution

(1)A person who receives an amount as an ingoing contribution under a residence contract must give it to one of the following persons (the trustee) to hold in trust—

(a)the public trustee;

(b)the scheme operator’s lawyer;

(c)a real estate agent;

(d)any authorised trustee corporation under the Corporations Act, section 9.

Maximum penalty—100 penalty units.

(2)If the trustee receives an amount under subsection (1), the trustee’s receipt for the amount is a sufficient discharge for the person for the amount paid.

(3)The trustee must hold the amount in trust until the latest of—

(a)the day the conditions precedent, if any, to the creation of the right to reside to which the amount relates are fulfilled; or

(b)the day the cooling-off period ends; or

(c)if the ingoing contribution relates to an accommodation unit that has not previously been occupied—the day the resident’s accommodation unit is suitable for habitation and the resident is entitled to vacant possession of the unit.

Maximum penalty—100 penalty units.

(4)At the end of the later day, the trustee must pay the amount to the person lawfully entitled to it.

Maximum penalty—100 penalty units.

(5)For subsection (3)(c), without limiting when an accommodation unit is not suitable for habitation, an accommodation unit is not suitable for habitation if—

(a)reticulated water is not connected to the unit; or

(b)all sanitary installations are not installed or are not operational in the unit.

(6)Despite subsection (1), if a person receives an amount as an ingoing contribution under a residence contract after the end of the latest day mentioned in subsection (3), the person may—

(a)if the person is lawfully entitled to the amount—keep the amount; or

(b)otherwise—pay the amount directly to the person lawfully entitled to it.

(7)If there is a dispute between a resident and a scheme operator about who is lawfully entitled to the amount, the dispute is a retirement village dispute.

(8)If a retirement village dispute arises under subsection (7), the scheme operator must give the trustee written notice of the dispute immediately it arises.

Maximum penalty—100 penalty units.

(9)If the trustee is given a notice under subsection (8), the trustee must hold the amount in trust until the dispute is resolved—

(a)as provided for under this Act; or

(b)by agreement, by deed, between the parties.

Maximum penalty—100 penalty units.

(10)However, if the contract is rescinded in the cooling-off period, the trustee must immediately pay the amount to the person by whom it was paid under the contract.

Maximum penalty—100 penalty units.

(11)If a person (the payer) who is required to pay an amount to someone (the payee) under this section does not pay the amount, the payee may recover it, as a debt payable by the payer to the payee.

47   Dealing with instruments assigning property under a residence contract

(1)This section applies if the person (the assignor) who enters into a residence contract to secure the person’s, or someone else’s, right to reside in a retirement village assigns property under the residence contract before the cooling-off period ends.

(2)The scheme operator must ensure the assignment instrument is held in escrow by the public trustee or the scheme operator’s lawyer (the authorised person).

Maximum penalty—100 penalty units.

(3)If the residence contract is rescinded in the cooling-off period, the authorised person must release the assignment instrument to the assignor.

Maximum penalty—100 penalty units.

(4)If the residence contract is not rescinded in the cooling-off period, the authorised person must, at the end of the cooling-off period, release the assignment instrument to the assignee, or someone else at the assignee’s written direction.

Maximum penalty—100 penalty units.

(5)In this section—

assignee means the person in whose favour property is assigned under an assignment instrument.

Division 3 Rescinding residence contracts

48   Residence contract may be rescinded during cooling-off period

A person who, personally or for someone else, enters into a residence contract to secure the person’s, or other person’s, right to reside in a retirement village may, by written notice given to the scheme operator, rescind the contract before the cooling-off period ends.

49   Reassignment of property acquired in cooling-off period

(1)This section applies if the assignee under an assignment instrument mentioned in section 47 acquires the property the subject of the assignment within the cooling-off period.

(2)As soon as possible after the assignee becomes aware the residence contract has been rescinded, the assignee must reassign the property to—

(a)the person from whom the assignee acquired it (the assignor); or

(b)someone else, at the assignor’s written direction.

Maximum penalty—100 penalty units.

(3)The assignee must reassign the property free of all interests, mortgages and other charges to which it has become subject since the assignee acquired it.

Maximum penalty—100 penalty units.

(4)The assignee is responsible for the costs, expenses and duties relating to the reassignment under this section.

50   Scheme operator to compensate assignor if property assigned in cooling-off period is not reassigned

(1)This section applies if section 49 requires an assignee to reassign property on rescission of a residence contract but the assignee—

(a)has disposed of the property; or

(b)is unable, when the contract is rescinded, to discharge any interests, mortgages and other charges to which the property has become subject since the assignee acquired it.

(2)The scheme operator for the retirement village to which the contract relates must pay compensation to—

(a)the assignor; or

(b)someone else, at the assignor’s written direction.

(3)The amount of compensation payable—

(a)is, after discounting for any GST payable on any supply relating to the payment of the compensation, the amount equalling the value attributed to the assigned property under the residence contract; and

(b)may be recovered as a debt payable by the scheme operator to the assignor, or other person mentioned in subsection (2)(b), in a court having jurisdiction for the recovery of the amount claimed.

(4)If there are 2 or more scheme operators for the retirement village, the scheme operators are jointly and severally liable to pay the compensation.

Division 4 Terminating right to reside

51   Definition for div 4

In this division—

resident includes a person who, for someone else, enters into a residence contract to secure the other person’s right to reside in a retirement village.

52   Termination by resident

(1)A resident may terminate the resident’s right to reside in a retirement village by 1 month’s written notice given to the scheme operator.

(2)Also, a resident may terminate the resident’s right to reside in a retirement village by written notice given to the scheme operator if the retirement village scheme is not registered.

(3)A notice under subsection (2) must—

(a)be given within 14 days after the resident becomes aware the retirement village scheme is not registered; and

(b)state the day, no earlier than the day on which notice is given, on which the termination takes effect.

(4)If a resident terminates the resident’s right to reside in a retirement village under subsection (2), the scheme operator must refund the full amount of the resident’s ingoing contribution to the resident within 30 days of the termination.

Maximum penalty—540 penalty units.

(5)A resident may recover an amount owing under subsection (4) as a debt owed by the scheme operator.

53   Termination by scheme operator

(1)A scheme operator may terminate a resident’s right to reside in the retirement village by giving the written notice required by this section to the resident.

(2)If the resident’s right to reside in the retirement village is to be terminated on either of the following grounds, the scheme operator must give the resident 14 days notice—

(a)the resident has intentionally or recklessly—

(i)injured a person while the person is in the retirement village; or

(ii)seriously damaged the resident’s accommodation unit; or

(iii)seriously damaged property of another person in the retirement village;

(b)the resident is likely, intentionally or recklessly, to do something mentioned in paragraph (a)(i) to (iii).

(3)The scheme operator must give the resident 2 months notice if the resident’s right to reside in the retirement village is to be terminated on any of the following grounds—

(a)the resident has committed a material breach of the contract;

(b)the scheme operator reasonably believes the resident has abandoned the resident’s right to reside in the retirement village;

(c)the scheme operator and a person who has assessed the resident’s care needs under the Aged Care Act 1997 (Cwlth), section 22.4 reasonably believe the resident’s type of accommodation is now unsuitable for the resident;

Example of accommodation that is now unsuitable for the resident—

The resident resides in an independent living unit and now needs help with personal care not normally provided by the scheme operator.

(d)the operator is implementing an approved closure plan.

(4)The notice must state—

(a)the grounds on which the right to reside is being terminated; and

(b)the day by which the resident must vacate the retirement village.

(5)If the scheme operator does not know the resident’s current address, the scheme operator may give the notice by publishing it in—

(a)a newspaper circulating throughout the State; and

(b)a newspaper circulating throughout Australia.

(6)The scheme operator must not include the grounds for the termination in the newspaper notice.

Maximum penalty for subsection (6)—50 penalty units.

53A   How to work out particular exit fee for a residence contract

(1)This section applies to an exit fee for a residence contract that is worked out under the contract having regard to the length of time the resident has resided in the accommodation unit to which the contract relates.

Example—

This section applies if the exit fee is 5% of the ingoing contribution payable under the contract after 1 year’s residence in the unit and 6% of the ingoing contribution payable under the contract after 2 years residence in the unit.

(2)If the contract was entered into before the commencement of this section, the exit fee must be worked out on a daily basis unless the contract provides a way of working out the exit fee that is not on a daily basis.

Example of how to work out the exit fee for a residence contract on a daily basis—

If—

(a)the exit fee is 5% of the ingoing contribution payable under the contract after 1 year’s residence in the unit and 6% of the ingoing contribution payable under the contract after 2 years residence in the unit; and

(b)the resident resides in the unit for 1 year and 14 days, but not during a leap year;

the exit fee is 5% of the ingoing contribution payable under the contract for the first year of residence plus ¹⁴/₃₆₅ of 1% of the ingoing contribution payable under the contract for the 14 days of the second year of residence.

(3)If the contract is entered into after the commencement of this section, the exit fee must be worked out on a daily basis.

54   Resident may ask for estimate statement of resident’s exit entitlement

(1)This section applies if a resident gives a scheme operator a written notice—

(a)stating the resident is considering terminating the resident’s right to reside in the retirement village under section 52; and

(b)asking the operator to give the resident a written estimate of the resident’s exit entitlement as at the date of the notice.

(2)The scheme operator must comply with the request within 14 days after it is given.

Maximum penalty—40 penalty units.

(3)However, the scheme operator does not contravene subsection (2) if the scheme operator has given the resident an estimate under that subsection within the 6 months immediately preceding the resident’s request.

55   Right to reside in a retirement village terminates automatically on resident’s death

A right to reside in an accommodation unit in a retirement village held by a resident terminates on the death of the resident.

Division 5 Reselling and valuing resident’s right to reside

56   Interpretation for div 5

(1)In this division—

reinstatement work means replacements or repairs that are reasonably necessary to reinstate a former resident’s accommodation unit to the condition required under section 58(1).

termination date means—

(a)the date a resident’s right to reside under a residence contract, including an existing residence contract, in an accommodation unit in a retirement village is terminated under this Act; or

(b)if a relative of the resident has a right to reside in the accommodation unit under section 70B(2)—the date the relative advises the scheme operator, under section 70B(5)(d), that the relative wants to enter into a residence contract for the accommodation unit.

(2)In this division, if a person holds a freehold interest in an accommodation unit, a reference to the former resident includes a reference to the holder of the freehold interest, unless, in relation to a particular matter, the residence contract in relation to that particular matter provides otherwise.

57   Application of div 5

(1)This division applies if a resident’s right to reside under a residence contract, including an existing residence contract, in an accommodation unit in a retirement village is terminated under this Act.

(2)This division applies despite anything to the contrary in an existing residence contract.

58   Reinstatement of accommodation unit

(1)When ceasing occupation of the accommodation unit at the end of the residency, the former resident must leave it in the same condition as it was in when the former resident started occupation of it, apart from—

(a)fair wear and tear; and

(b)renovations and other changes to the condition of the unit carried out with the agreement of the resident and the scheme operator.

(2)If the former resident does not comply with subsection (1), the scheme operator may carry out reinstatement work and claim the cost of the work from the former resident.

(3)If a relative of the former resident has a right under section 70B(5) to enter into a residence contract for the accommodation unit with the scheme operator and advises the scheme operator, under section 70B(5)(d), that the relative wants to enter into the residence contract—

(a)the scheme operator may claim the cost of reinstatement work from the relative under subsection (2) as if the relative were the former resident; and

(b)the scheme operator must ensure the reinstatement work is done with as little inconvenience to the relative as is reasonably possible.

(4)This section does not apply—

(a)to a current residence contract within the meaning of section 237H; or

Note—

See section 237K.

(b)if the former resident’s right to reside in the retirement village was terminated under section 53(3)(d).

(5)In this section—

fair wear and tear includes a reasonable amount of wear and tear associated with the use of items commonly used in a retirement village.

59   When reinstatement work must be completed

(1)This section applies to reinstatement work that—

(a)the former resident and the scheme operator agree will be carried out by the operator; or

(b)a relative of the former resident mentioned in section 58(3) and the scheme operator agree will be carried out by the operator; or

(c)the scheme operator carries out under section 58(2); or

(d)the tribunal orders to be carried out by the operator.

(2)For reinstatement work mentioned in subsection (1)(a) to (c), the scheme operator must ensure the work is completed by—

(a)if the scheme operator and the former resident or relative agree on a time—the agreed time; or

(b)if paragraph (a) does not apply and the scheme operator also carries out renovation work under section 59A—the later of the following times—

(i)90 days after the vacation date;

(ii)the time by which the renovation work must be completed under section 59A; or

(c)otherwise—90 days after the vacation date.

(3)For reinstatement work mentioned in subsection (1)(d), the scheme operator must ensure the reinstatement work is completed within the period fixed by the tribunal.

(4)This section does not apply—

(a)to a current residence contract within the meaning of section 237H; or

Note—

See section 237K.

(b)if the former resident’s right to reside in the retirement village was terminated under section 53(3)(d).

(5)In this section—

vacation date, of an accommodation unit in a retirement village, means—

(a)for a former resident whose relative has a right to reside in the accommodation unit under section 70B(2)—the date the relative’s right to reside in the accommodation unit under that subsection ends; or

(b)otherwise—the date the former resident vacates the accommodation unit.

59A   Renovation work by scheme operator

(1)This section applies if the scheme operator proposes to carry out renovation work in or affecting the former resident’s accommodation unit.

(2)Before starting the renovation work, the operator must agree with the former resident on a date by which the renovation work will be finished.

(3)A dispute about the date by which the renovation work will be finished is a retirement village dispute.

(4)The operator must ensure the renovation work is completed by the agreed date.

Note—

See section 171 about failure to comply with this subsection.

(5)The cost of the renovation work must be paid by—

(a)if the residence contract provides that the former resident and the scheme operator are to share any capital gain on the sale of the former resident’s interest in the unit—the former resident and the scheme operator in the same proportion the capital gain is to be shared; or

(b)otherwise—the operator.

(6)This section does not apply to a current residence contract within the meaning of section 237H.

Note—

See section 237K.

(7)In this section—

agreed date, for completing renovation work, includes the date ordered by the tribunal in its decision on a retirement village dispute mentioned in subsection (3).

renovation work means replacements or repairs other than reinstatement work.

60   Scheme operator and former resident to agree on resale value of accommodation unit

(1)Within 30 days after the termination date, the former resident and the scheme operator are to negotiate in good faith and, if possible, agree in writing on the resale value of the right to reside in the accommodation unit.

(2)If the former resident and the scheme operator can not agree on the resale value of the accommodation unit, the scheme operator is to obtain a valuation of the right to reside in the unit from a valuer within a further 14 days.

(3)A valuation obtained under subsection (2) is taken to be the agreed resale value of the right to reside in the accommodation unit.

61   [Repealed]

62   [Repealed]

63   When former resident’s exit entitlement payable

(1)The scheme operator must pay the exit entitlement of the former resident to the person entitled to receive it on or before the earliest of the following days—

(a)the day it must be paid under the former resident’s residence contract;

(b)the day that is 14 days after the settlement day;

(c)the day that is 18 months after the termination date or any later day fixed by the tribunal by an order under section 171A;

(d)if the former resident’s right to reside in the retirement village was terminated under section 53(3)(d)—14 days after an agreed resale value of the right to reside is determined in accordance with section 60.

Maximum penalty—540 penalty units.

(2)The scheme operator may pay the exit entitlement at any time on or after the termination date and before the time payment is required under subsection (1) if the operator and the former resident agree on the resale value of the right to reside.

(3)To remove any doubt, it is declared that, for subsection (2), the operator and the former resident are taken to have agreed on the resale value of the right to reside if there is an agreed resale value under section 60(3), 67(4) or 67A(4).

(4)If the former resident has died, a requirement under subsection (1) to pay the exit entitlement by a particular day (the due day) is taken to be a requirement to pay the exit entitlement by the later of—

(a)the due day; or

(b)the day that is 14 days after the operator is shown the probate of the former resident’s will or letters of administration of the former resident’s estate.

(5)At the same time as an exit entitlement is paid under this section, the scheme operator must give the former resident a written statement showing how the exit entitlement was worked out and the particulars of any of the following that are payable by the former resident—

(a)any exit fee;

(b)any accrued general services charges and maintenance reserve fund contributions;

(c)any outstanding services charges and fund contributions;

(d)any expenses relating to the resale of the right to reside in the accommodation unit;

(e)any other payments provided for in the contract.

Maximum penalty—100 penalty units.

(6)In this section—

settlement day means the day on which the sale of the right to reside, to a new resident or the scheme operator, is settled.

63A   Scheme operator must enter into and complete contract to purchase freehold property

(1)This section applies if the former resident’s residence contract is based on a freehold interest in an accommodation unit.

(2)The scheme operator must enter into a contract under this section to purchase the former resident’s freehold property, and complete the purchase under this section, unless—

(a)the freehold property is sold to a person other than the scheme operator before the day the scheme operator is required to complete the purchase; or

(b)the scheme operator has a reasonable excuse.

Maximum penalty—540 penalty units.

Note—

See also section 63H(2) for when a requirement to enter into a contract under this section does not apply.

(3)The scheme operator must enter into the contract and complete the purchase within the time required under section 63B.

(4)The contract must comply with section 63C.

(5)The purchase price for the freehold property under the contract must be its value as agreed or decided under section 63D.

(6)Without limiting subsection (2)(b), the scheme operator is taken to have a reasonable excuse for not entering into a contract to purchase the former resident’s freehold property, or completing the purchase, under this section (a required action) during any of the following periods—

(a)a period during which the scheme operator can not take the required action, despite taking all reasonable steps, because of an act or omission of the former resident;

Example—

The scheme operator cannot complete the purchase because the former resident has not made necessary arrangements for the release of a mortgage over the freehold property.

(b)if the former resident enters into a private contract—the period from the day the former resident enters into the contract to the day that is 60 days after the scheme operator receives written notice from the former resident, or another party to the contract, that the contract has ended;

(c)if the scheme operator or former resident makes an application to the tribunal under part 10 about a dispute relating to a contract under this section—the period from the day the application is made to the earliest day, after the application is finally dealt with, by which it would be reasonable for the scheme operator to take the required action.

(7)A dispute relating to a contract under this section is a retirement village dispute.

Examples of matters that may be the subject of a dispute relating to a contract under this section—

•the terms to be included in the contract

•the purchase price under section 63D

•the settlement date for the contract

•the payment of an amount of legal expenses incurred by the scheme operator

(8)If a court convicts the scheme operator of an offence against subsection (2), the court may make an order requiring the scheme operator to take stated steps to enter into a contract under this section to purchase the former resident’s freehold property or complete the purchase under this section.

Note—

See also section 191 for orders the tribunal may make to resolve a retirement village dispute under this section.

(9)If the court makes an order under subsection (8) stating a time by which scheme operator must enter into a contract or complete a purchase, subsection (3) applies as if a reference to the time required under section 63B were a reference to the time stated in the order.

(10)This section applies subject to section 63H.

(11)In this section—

private contract means a contract for the sale of the former resident’s freehold property to someone other than the scheme operator.

63B   Timing of purchase

(1)This section states the requirements for section 63A(3).

(2)The scheme operator must enter into the contract in sufficient time for the purchase to be completed under subsection (3).

(3)The scheme operator must complete the purchase under the contract by the latest of the following days—

(a)the day that is 18 months after the termination date;

(b)if the former resident has died—the day that is 14 days after the operator is shown the probate of the former resident’s will or letters of administration of the former resident’s estate;

(c)the day fixed by the tribunal by an order under section 171A.

63C   Contract requirements

(1)This section states the requirements for the contract for section 63A(4).

(2)A regulation may prescribe a term that must be included in the contract (a required term) or that must not be included in the contract (a prohibited term).

(3)The contract must—

(a)be in the approved form; and

(b)include each required term; and

(c)not include a prohibited term; and

(d)comply with any other requirements prescribed by regulation; and

(e)otherwise be in the terms, consistent with this Act, that are—

(i)agreed by the scheme operator and former resident; or

(ii)decided by the tribunal in a resolution of a retirement village dispute.

63D   Purchase price of freehold property

(1)This section states how the purchase price for the former resident’s freehold property is decided for section 63A(5).

(2)Each of the valuation and resale provisions applies, with any necessary changes, as if—

(a)a reference in the provision to the resale value, valuation or sale of the former resident’s right to reside in the accommodation unit were a reference to the resale value, valuation or sale of the freehold property; and

(b)a reference in the provision to paying an exit entitlement to the former resident under section 63 were a reference to entering into a contract under section 63A.

(3)Before entering into a contract under section 63A, if the scheme operator and the former resident have not agreed on the resale value of the freehold property within the previous 3 months, the operator must obtain a valuation of the freehold property from a valuer.

(4)A valuation obtained under subsection (3) is taken to be the agreed resale value of the freehold property.

(5)Unless the scheme operator and the former resident otherwise agree, the purchase price of the freehold property under the contract must be the amount of the most recent agreed resale value of the freehold property under section 60, section 67 or subsection (4).

(6)In this section—

valuation and resale provisions means sections 60, 64, 65, 67 and 68 to 70AD.

63E   Contract may require reimbursement of scheme operator’s legal costs

(1)This section applies in relation to an amount of legal expenses reasonably incurred by a scheme operator in entering into a contract under section 63A to purchase a former resident’s freehold property and completing the purchase.

(2)The contract may include a term requiring the former resident to pay all or a stated part of the amount to the scheme operator on or after completion of the purchase (a reimbursement requirement).

(3)If the tribunal is dealing with a retirement village dispute about the inclusion of a reimbursement requirement in a contract under section 63A, the tribunal must order that the contract include a reimbursement requirement, in the terms the tribunal considers just, unless the tribunal considers it would be unjust to do so.

63F   No sales commission payable on mandatory buyback

Despite anything in a residence contract, no sales commission is payable on the sale of the resident’s freehold property to the scheme operator under section 63A.

63G   Exit fee

If a scheme operator is required to complete a purchase of a former resident’s freehold property under section 63A, the former resident is not liable to pay an exit fee to the scheme operator until the completion of the purchase.

63H   Relative residing in unit under s 70B

(1)This section applies if a resident’s right to reside in an accommodation unit is terminated and a relative of the former resident continues residing in the accommodation unit under section 70B.

(2)If the scheme operator enters into a residence contract for the accommodation unit with the relative, section 63A does not apply to the scheme operator in relation to the former resident’s freehold property.

(3)Otherwise, a reference to the termination date in section 63B(3)(a), or in a valuation and resale provision applied by section 63D, is taken to be a reference to the last day that the relative resides in the unit under section 70B.

63I   Non-application of particular legislation to contract

The following provisions do not apply in relation to a contract under section 63A—

(a)the Body Corporate and Community Management Act 1997, chapter 5, parts 1 and 3;

(b)the Property Occupations Act 2014, part 7, divisions 5 to 7.

64   Units not sold within 6 months

(1)This section applies if—

(a)a former resident’s right to reside in a particular accommodation unit is not sold within 6 months after the termination date; and

(b)the former resident has not been paid an exit entitlement under section 63.

(2)The former resident may engage a real estate agent to effect the sale of the right to reside in the accommodation unit.

(3)This section does not apply if the former resident’s right to reside in the retirement village was terminated under section 53(3)(d).

65   Scheme operator to tell resident of all offers for accommodation unit

(1)This section applies if a former resident has not been paid an exit entitlement under section 63.

(2)The scheme operator must promptly give to the former resident details of each offer to purchase the former resident’s right to reside.

Maximum penalty—40 penalty units.

(3)Also, if the former resident asks, the scheme operator must give information about the following to the former resident as soon as practicable after the end of each month for which the right to reside remains unsold—

(a)all sales inquiries relating to the right to reside;

(b)what steps the operator is taking to promote the sale of the right to reside;

(c)the following particulars of all other rights to reside in accommodation units for sale in the village—

(i)the number of rights for sale;

(ii)the size of the units;

(iii)the selling prices of the rights;

(iv)how long the rights have been for sale.

Maximum penalty for subsection (3)—40 penalty units.

(4)This section does not apply if the former resident’s right to reside in the retirement village was terminated under section 53(3)(d).

66   Working out exit entitlements

(1)If a scheme operator accepts an offer for a right to reside less than the agreed value for the right, the former resident’s exit entitlement is to be worked out as if the right to reside was sold at the agreed value.

(2)If a former resident accepts an offer for a right to reside less than the agreed value, the former resident’s exit entitlement is to be worked out on the amount of the offer.

(3)If a former resident’s right to reside in the retirement village was terminated under section 53(3)(d), the former resident’s exit entitlement is to be worked out as if the right to reside was sold at the agreed resale value.

67   Updating agreed resale value every 3 months

(1)This section applies if—

(a)a former resident’s right to reside in a particular accommodation unit—

(i)is not sold within 3 months after the termination date; or

(ii)was terminated under section 53(3)(d); and

(b)the former resident has not been paid an exit entitlement under section 63.

(2)The former resident and the scheme operator are to reconsider the resale value of the right to reside at least every 3 months and, if possible, agree in writing on a new resale value, which may be the same value.

(3)If the former resident and the scheme operator can not agree on the resale value of the accommodation unit, the operator is to obtain a valuation of the right to reside in the unit from a valuer within a further 14 days.

(4)A valuation obtained under subsection (3) is taken to be the agreed resale value of the right to reside in the accommodation unit.

(5)However, subsection (4) does not apply if—

(a)the former resident’s right to reside in the accommodation unit was terminated under section 53(3)(d); and

(b)the valuation obtained under subsection (3) is less than the previous agreed resale value of the right to reside in the accommodation unit determined in accordance with this section or section 60.

67A   Updating agreed resale value if exit entitlement is payable before right to reside is sold

(1)This section applies if—

(a)a scheme operator is required under section 63(1)(c) to pay an exit entitlement before a former resident’s right to reside in a particular accommodation unit is sold; and

(b)the operator and the former resident have not otherwise agreed on the value of the right to reside for the purpose of calculating the amount of the exit entitlement.

(2)The operator must obtain a valuation of the right to reside from a valuer before, but not more than 14 days before, the day the operator is required to pay the exit entitlement.

(4)A valuation obtained under subsection (2) is taken to be the agreed resale value of the right to reside.

68   Costs of selling

(1)The costs of the sale of a right to reside in a particular accommodation unit, including the costs mentioned in sections 60(2) and 67(3), are to be shared by the former resident and the scheme operator in the same proportion as they are to share the gross ingoing contribution on the sale of the right to reside, as provided for in the residence contract.

(2)However, if the former resident engages a real estate agent to sell the right to reside, the former resident must pay the real estate agent’s costs of the sale, if any, and commission.

(3)Except as provided by subsections (1) and (2), a scheme operator must not charge a former resident a fee, charge or commission, however described, for selling the resident’s right to reside in the resident’s accommodation unit.

(4)A certificate signed by the chief executive or the registrar and stating that a stated document is a copy of a financial or other record, contract or document is evidence of the matter.

(5)A copy of a condition report stating the condition of a stated accommodation unit is evidence of the condition of the unit—

(a)if the report is signed by the resident—when the report was signed; or

(b)otherwise—when the report was made.

(6)However, if the report is signed by the resident and marked to show the resident’s disagreement with the report, the report is evidence of the condition of the unit only as far as its contents are unmarked.

222   Act’s remedies not exclusive

Nothing in this Act prevents a party to a residence contract from seeking or enforcing another remedy the party may have under another law.

223   Protection from liability

(1)An official does not incur civil liability for an act done, or omission made, honestly and without negligence under this Act.

(2)If subsection (1) prevents civil liability attaching to an official, the liability attaches instead to the State.

(3)In this section—

official means—

(a)the chief executive; or

(b)an employee of the department.

224   Responsibility for acts or omissions of representatives

(1)Subsections (2) and (3) apply in a proceeding for an offence against this Act.

(2)If it is relevant to prove a person’s state of mind about a particular act or omission, it is enough to show—

(a)the act was done or omitted to be done by a representative of the person within the scope of the representative’s actual or apparent authority; and

(b)the representative had the state of mind.

(3)An act done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission.

(4)In this section—

representative means—

(a)of a corporation—an executive officer, employee or agent of the corporation; or

(b)of an individual—an employee or agent of the individual.

state of mind of a person, includes—

(a)the person’s knowledge, intention, opinion, belief or purpose; and

(b)the person’s reasons for the intention, opinion, belief or purpose.

225   Review of operation of s 63(1)(c)

(1)A review of the operation of section 63(1)(c) must be conducted, under this section, to determine the impact of the provision on the following persons—

(a)residents;

(b)former residents;

(c)the families of residents or former residents;

(d)scheme operators.

(2)The review must be conducted by a panel of not more than 4 appropriately qualified persons appointed by the Minister.

(3)The Minister must prepare, and give to the panel, terms of reference to guide the conduct of the review.

(4)The review must start no later than 2 years after the commencement.

226    Chief executive may make guidelines

(1)The chief executive may make guidelines, not inconsistent with this Act, to inform persons about—

(a)the attitude the chief executive is likely to adopt on a particular matter; or

(b)how the chief executive administers this Act; or

(c)matters that may help persons comply with their obligations or responsibilities, or lawfully and appropriately exercise powers, under this Act.

(2)The chief executive must publish the guidelines on the department’s website.

227   Approval of forms

The chief executive may approve forms for use under this Act.

227AA    Requirements about approved forms for residence contracts and other documents

(1)Without limiting section 227, a form may be approved for use as a residence contract, contract under section 63A or other document that—

(a)applies to documents of that type generally; or

(b)is limited in its application by reference to stated matters.

(2)A requirement in this Act for a document to be in the approved form does not apply if there is no approved form at the time the document is adopted, entered into or otherwise used under this Act.

227A   Delegation of chief executive’s powers

(1)The chief executive may delegate the chief executive’s powers under this Act to an appropriately qualified public service officer.

(2)In this section—

appropriately qualified means having qualifications, experience or standing appropriate to exercise the power.

Example of standing—

a person’s classification level in the public service

228   Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)In particular, a regulation may—

(a)provide for the fees payable under this Act; or

(b)create offences and prescribe penalties of not more than 20 penalty units for each offence.

(3)A regulation may impose a requirement about the provision of equipment in a retirement village for public safety.

Part 15    Transitional and savings provisions

Division 1 Transitional provisions for Act No. 71 of 1999

229   Existing retirement village schemes

(1)An existing retirement village scheme is taken to be registered under this Act if, at the commencement of this section the scheme was approved under the repealed Act and the approval is in force.

(2)The chief executive must promptly give the scheme operator of the existing retirement village scheme a registration certificate in the approved form.

(3)The scheme operator must, within 6 months after the commencement—

(a)give the chief executive the following—

(i)the public information document for the retirement village;

(ii)the particulars mentioned in section 27(2)(a); and

(b)give each resident of the retirement village a written statement detailing the changes to the resident’s residence contract required by this Act.

Maximum penalty for subsection (3)—540 penalty units.

230   Existing exempt organisations and retirement villages

(1)An exemption given to an organisation or an existing retirement village under the repealed Act and in force at the commencement of this section continues under this Act and is to be read with the changes necessary to adapt its operation to the provisions of this Act.

(2)If the exemption operated to exclude a person or retirement village from the operation of a provision of the repealed Act, the exemption continues to operate to exclude the person or village from the operation of a corresponding provision of this Act, other than this provision.

(3)The exemption remains subject, after the commencement, to any condition or time limitation that applied to the exemption immediately before the commencement.

(4)The exemption expires 2 years after the commencement of this section.

(5)Despite subsections (1) to (3), a regulation may prescribe provisions of this Act to which the exemption does not apply.

231   Releasing certain existing charges

(1)This section applies if the land of an existing retirement village was subject to a statutory charge under section 33 of the repealed Act immediately before its repeal and either—

(a)the existing retirement village is not a retirement village for this Act; or

(b)a person’s right to reside in the existing retirement village depends on the person holding a registered lease over a part of the retirement village land.

(2)The operator of the existing retirement village may apply to the chief executive to release the charge.

(3)The application must be in writing and state the particulars of a ground mentioned in subsection (1) on which it is made.

(4)The chief executive’s decision whether or not to release the charge must be made within 60 days of the later of—

(a)the day the application is received; or

(b)if the particulars with the application do not conform with the requirements of subsection (3) and the chief executive requests further particulars, the day the particulars are given.

(5)If the chief executive decides to release the charge—

(a)the chief executive must, as soon as practicable after making the decision, give the registrar of titles written notice that the charge is released; and

(b)on receipt of the notice, the registrar of titles must register the release of the charge.

(6)If the chief executive refuses to release the charge, the chief executive must give the operator a signed notice stating—

(a)the reasons for the refusal; and

(b)the operator may appeal against the decision under section 29.

(7)Sections 29 to 33, other than section 30(1)(b), apply to an appeal under subsection (6)(b) as if the decision to refuse to release the charge were a decision to refuse an application to register a retirement village.

232   Apportionment of balance where separate funds maintained

(1)This section applies if immediately before the commencement of this section a scheme operator of an existing retirement village maintains separate funds for the retirement village for—

(a)capital replacement; and

(b)maintenance and repairs.

(2)The scheme operator must, within 90 days after the commencement of this section, transfer the balance in those funds to—

(a)for a fund mentioned in subsection (1)(a)—the capital replacement fund; or

(b)for a fund mentioned in subsection (1)(b)—the maintenance reserve fund.

Maximum penalty for subsection (2)—200 penalty units.

233   Apportionment of balance where single fund maintained for maintenance and repairs

(1)This section applies if immediately before the commencement of this section a scheme operator of an existing retirement village maintains a single fund for maintenance and repairs for the retirement village.

(2)The scheme operator must, within 90 days after the commencement of this section, transfer the balance in the fund to the maintenance reserve fund.

Maximum penalty for subsection (2)—200 penalty units.

234   Apportionment of balance where single fund maintained for capital replacement and maintenance and repairs

(1)This section applies if immediately before the commencement of this section a scheme operator of an existing retirement village maintains a single fund for capital replacement and maintenance and repairs for the retirement village.

(2)The scheme operator must, within 90 days after the commencement of this section, transfer the balance in the fund to the capital replacement fund and the maintenance reserve fund in the proportion that the amount decided by the quantity surveyor under section 92 as expected capital replacement costs is to the amount decided by the quantity surveyor under section 98 as expected maintenance costs.

Example—

If there is $600,000 in an existing fund for capital replacement and maintenance and repairs for the retirement village and the quantity surveyor has decided the amounts required under sections 92 and 98 as $500,000 and $250,000 respectively, out of the $600,000 available, $400,000 is to be transferred to the capital replacement fund and $200,000 is to be transferred to the maintenance reserve fund.

Maximum penalty for subsection (2)—200 penalty units.

235   Existing regulations

(1)The regulations in force under the repealed Act immediately before the commencement of this section—

(a)continue in force under this Act, subject to amendment or repeal by a regulation under this Act; and

(b)are to be read with the changes necessary to make them consistent with this Act and adapt their operation to the provisions of this Act.

(2)The regulations expire 1 year after the commencement.

236   Existing by-laws

(1)A by-law made under the repealed Act and in force immediately before the commencement of this section continues in force under this Act, subject to amendment or repeal by a by-law under this Act.

(2)Despite section 130, if there is an inconsistency between a by-law made under section 130(1) and by-law made before 1 November 1989 (an existing by-law) and in force immediately before the commencement of this section, the existing by-law prevails to the extent of the inconsistency.

237   Retirement Villages Act 1988 references

In an Act or document, a reference to the Retirement Villages Act 1988 may, if the context permits, be taken as a reference to this Act.

Division 2 Transitional provisions for Retirement Villages Amendment Act 2006

237A   Exit fees

(1)This section applies if, before the commencement of this section—

(a)a resident had ceased residing in an accommodation unit; and

(b)the resident had not paid the exit fee under the residence contract to the scheme operator.

(2)For calculating the exit fee the resident may be liable to pay to, or credit the account of, the scheme operator, section 15 and any relevant definitions, as in force immediately before the commencement, continue to have effect.

237B   Notice about inaccuracy in public information document

(1)This section applies if—

(a)before the commencement of this section, a person had signed a residence contract; and

(b)before the commencement, the cooling-off period for the residence contract had not ended; and

(c)before the cooling-off period ends, and whether before or after the commencement, the scheme operator becomes aware that the particulars in a public information document are inaccurate in a way that may materially affect the interests of a resident of the retirement village.

(2)Despite section 36(3)(a), the scheme operator is not required to make a full written disclosure of the inaccuracy to the person before the cooling-off period ends.

(3)However, the scheme operator must make the disclosure as soon as practicable after becoming aware of the inaccuracy.

Maximum penalty—540 penalty units.

237C   Notice of end of cooling-off period

(1)This section applies if—

(a)the cooling-off period for a residence contract entered into before the commencement of this section starts on the day a later event happens or another contract is entered into; and

(b)on or after the commencement, the later event happens or the other contract is entered into.

(2)Despite section 45A(2), the scheme operator is not required to give the resident written notice of—

(a)the date the later event happens or the other contract is entered into; or

(b)the date the cooling-off period ends.

237D   Reinstatement work

(1)This section applies if, before the commencement of this section—

(a)a resident’s right to reside under a residence contract, including an existing residence contract, in an accommodation unit in a retirement village is terminated under this Act; and

(b)the scheme operator and the former resident have not, under section 58, as in force immediately before the commencement, agreed on reinstatement work; and

(c)the tribunal has not made an order that work be done to reinstate the former resident’s accommodation unit.

(2)Sections 56 to 59 and any relevant definitions, as in force immediately before the commencement, continue to have effect in relation to the reinstatement of the former resident’s accommodation unit.

237E   Budgets

(1)If, before the commencement of this section, a scheme operator adopted a budget for the capital reserve fund for the 2006 financial year, sections 92 and 93 and any relevant definitions, as in force immediately before the commencement, continue to have effect for the budget.

(2)If, before the commencement of this section, a scheme operator adopted a budget for the maintenance reserve fund for the 2006 financial year, sections 98 and 99 and any relevant definitions, as in force immediately before the commencement, continue to have effect for the budget.

237F   General services charges for former residents

(1)This section applies if, before the commencement of this section—

(a)a resident of a retirement village has vacated the resident’s accommodation unit; and

(b)the right to reside in the accommodation unit has not been sold; and

(c)the tribunal has not ordered the scheme operator to pay the former resident’s exit entitlement under section 171.

(2)Section 104 and any relevant definitions, as in force immediately before the commencement, continue to have effect for working out and paying the general services charges for the former resident.

237G   Insurance

(1)This section applies if—

(a)immediately before the commencement of this section, the insurance for a retirement village taken out by the scheme operator is subject to an excess; and

(b)the amount of the excess is more than the maximum excess prescribed under a regulation under section 110(4).

(2)During the transitional period, the scheme operator is taken not to have contravened section 110(4) even though—

(a)the residents have not, by special resolution at a residents meeting, agreed to the excess; or

(b)the excess may be more than 1% of the insured value of the retirement village.

(3)In this section—

transitional period means the period—

(a)starting on the day this section commences; and

(b)ending on the day the insurance contract ends or is renewed or renegotiated.

Division 3 Transitional provisions for Housing Legislation (Building Better Futures) Amendment Act 2017

237H    Definitions for division

In this division—

amended Act means this Act as in force from the commencement.

amendment Act means the Housing Legislation (Building Better Futures) Amendment Act 2017.

current public information document—

(a)means a public information document that was in effect immediately before the commencement; and

(b)includes any amendment of the document made after the commencement.

current residence contract—

(a)means a residence contract that was in effect immediately before the commencement; and

(b)includes any amendment of the contract made after the commencement.

former means as in force immediately before the commencement.

pre-amended Act means this Act as in force immediately before the commencement.

237I    Continued operation of public information documents and particular former provisions

(1)This section provides for—

(a)the continued effect of current public information documents; and

(b)the continued operation of particular provisions of the pre-amended Act relating to public information documents.

(2)While a current residence contract remains in force, the current public information document relating to the contract continues in effect for the purpose of this section.

(3)Despite its repeal by the amendment Act, former section 36 continues to apply to a scheme operator in relation to the public information document mentioned in subsection (2) that relates to the operator’s scheme.

(4)However, a scheme operator may not amend the public information document in a way that may materially affect the interests of a resident of the retirement village except to the extent permitted under an approved closure plan or approved redevelopment plan.

(5)Despite its amendment or repeal by the amendment Act, each of the following provisions continues to apply in relation to a current residence contract while the contract remains in force—

(a)former section 18;

(b)former section 20;

(c)former sections 36 and 37;

(d)former section 45(3);

(e)former sections 74 to 83;

(f)former section 103(1);

(g)former section 108(2)(c).

(6)For that purpose—

(a)a reference in a provision mentioned in subsection (5) to a public information document is taken to be a reference to the public information document mentioned in subsection (2); and

(b)a reference in a provision mentioned in subsection (5) to a provision of this Act includes a reference to the relevant former provision.

Example for paragraph (b)—

The reference in former section 37(2) to section 36 is a reference to former section 36.

(7)Part 5, division 10 does not apply to a running redevelopment if every resident of the retirement village was given written notice of the running redevelopment, before he or she became a resident, in—

(a)a current public information document; or

(b)a document mentioned in section 84(1).

237J    Approved form of public information documents

(1)The power under section 227 to approve forms includes power to approve a form for use as a public information document under this division.

(2)From the commencement, a current approved form for a public information document continues in effect under section 227 until it ceases to be the approved form under that section.

(3)In this section—

current approved form means an approved form for a public information document in effect under section 227 immediately before the commencement.

237K    Continued operation of former provisions relating to reinstatement work

(1)This section provides for the continued operation of the following provisions of the pre-amended Act—

(a)former section 58;

(b)former section 59;

(c)former section 61;

(d)former section 62.

(2)Despite its amendment or repeal by the amendment Act, each provision mentioned in subsection (1) continues to apply in relation to a current residence contract to which part 3, division 5 applies.

237L   Village comparison documents

(1)This section applies to a retirement village scheme registered before the commencement.

(2)The scheme operator must prepare a village comparison document for the scheme.

237M    Prescribed period for repayment of exit entitlement

(1)This section applies to the exit entitlement payable in relation to a residence contract for which the resident’s right to reside was terminated before the commencement.

(2)Section 63, as in force from the commencement, applies in relation to the contract as if the reference in section 63(1)(c) to the termination date were a reference to the day this section commences.

237N    Updating agreed resale value

Despite its amendment by the amendment Act, former section 67 continues to apply in relation to a residence contract for which the termination date was before the commencement.

237O    Quarterly financial statements

(1)This section applies in relation to a request under section 112(1) for a quarterly financial statement for—

(a)a financial quarter ending before the commencement; or

(b)the current financial quarter at the time of the commencement.

(2)So far as it relates to the general services charges fund, the request is taken to be a request for a list, for the quarter, of the expenditure involved in providing each general service.

237OA    Non-application of pt 2, div 5 to existing contracts

Part 2, division 5 does not apply to the transfer of control of a scheme’s operation under a contract executed before the commencement.

237P    [Expired]

Division 4 Transitional provisions for Health and Other Legislation Amendment Act 2019

237Q    Timing of mandatory buyback

(1)This section applies if—

(a)a former resident’s right to reside under a residence contract in an accommodation unit was terminated under this Act before the commencement of this section; and

(b)the former resident’s residence contract is based on a freehold interest in an accommodation unit; and

(c)since the termination of the right to reside, the former resident’s freehold property has not been sold.

(2)Section 63A applies to the scheme operator in relation to the freehold property.

(3)For that purpose, section 63B applies as if section 63B(3)(a) referred to the latest of the following days—

(a)10 May 2019;

(b)the day that is 6 weeks after the commencement;

(c)the day that is 18 months after the termination date.

(4)Also for that purpose, section 63A applies subject to section 63H as if section 63H were in force when the right to reside was terminated.

(5)This section applies subject to part 3, division 5B.

Division 5 Transitional provision for Housing Legislation Amendment Act 2021

237R    Exemption of schemes

(1)This section applies in relation to a regulation under section 70D declaring that an exemption applies to a scheme.

(2)Section 70E applies in relation to the scheme operator and a former resident even if the former resident’s right to reside in an accommodation unit under the scheme was terminated before the day section 70D commences.

Division 6 Transitional provisions for Housing Legislation Amendment Act 2023

237S    Definitions for division

In this division—

amending Act means the Housing Legislation Amendment Act 2023.

former, for a provision of this Act, means the provision as in force from time to time before the commencement.

new, for a provision of this Act, means the provision as in force from the commencement.

237T    Application of new ss 35(2)(c), 92(6) and 98(8)

(1)This section applies in relation to an independent quantity surveyor’s written report obtained or updated before 1 July 2023.

(2)New sections 35(2)(c), 92(6) and 98(8) do not apply in relation to the report.

237U    Continued application of former s 74(5)

Despite the amendment of section 74 by the amending Act, former section 74(5) continues to apply in relation to an amendment of a village comparison document made before the commencement.

237V    Continued application of former s 99(1)

Despite the amendment of section 99 by the amending Act, former section 99(1) continues to apply in relation to the adoption of a maintenance reserve fund budget for the financial year ending 30 June 2023.

237W    Continued application of former s 112(2)

Despite the amendment of section 112 by the amending Act, former section 112(2) continues to apply in relation to a request for a quarterly financial statement received by the scheme operator before the commencement.

237X    Continued application of former s 113

Despite the amendment of section 113 by the amending Act, former section 113 continues to apply in relation to—

(a)an annual financial statement for the financial year ending 30 June 2023; and

(b)an audit report for an annual financial statement mentioned in paragraph (a).

237Y    Continued application of former s 131(1) and (4)

Despite the amendment of section 131 by the amending Act, former section 131(1) and (4) continues to apply in relation to an annual meeting at which an annual financial statement, for a financial year ending before 1 July 2023, is presented.

Part 16    Repeal

238   Repeal

The Retirement Villages Act 1988 is repealed.

Schedule Dictionary

section 4

2006 Amendment Act means the Retirement Villages Amendment Act 2006.

accelerated wear means wear that happens more quickly than would have reasonably been expected.

accommodation unit means the part of a retirement village in which a resident has an exclusive right to reside.

affected by bankruptcy action, in relation to an individual, means the individual, in any jurisdiction—

(a)is bankrupt; or

(b)has compounded with creditors; or

(c)has otherwise taken, or applied to take, advantage of any law about bankruptcy.

annual meeting means an annual meeting called under section 131.

approved closure plan means a closure plan approved for the scheme under section 40D or 40E.

approved form see section 227.

approved provider means an approved provider under the Aged Care Act 1997 (Cwlth).

approved redevelopment plan means a redevelopment plan approved for the scheme under section 113F or 113G.

approved transition plan means a transition plan approved by the chief executive under section 41F or 41G.

capital improvement—

(a)means the first time provision of a capital item; and

(b)to the extent it is not inconsistent with paragraph (a), includes a thing that is a capital improvement under a ruling under the Taxation Administration Act 1953 (Cwlth) dealing with capital improvement.

capital items include the following—

(a)all buildings and structures located in the retirement village and owned by the scheme operator, including the communal facilities, amenities and accommodation units, other than items that, under the residence contract, are to be maintained, repaired and replaced by the resident;

(b)all plant, machinery and equipment used in the operation of the village, other than items that are body corporate property;

Examples for paragraph (b)—

communal hot water and air conditioning services, kitchen and dining room equipment, community facility furnishings, gardening equipment, village bus or transportation services

(c)all village infrastructure owned by the scheme operator.

Examples for paragraph (c)—

roadways, pathways, drainage, sewerage mains, landscaping, electrical distribution systems, water services and connections and distribution systems

capital replacement fund see section 17.

capital replacement fund budget see section 93(1).

capital replacement fund contribution see section 93(2)(b).

chairperson ...

closure plan see section 40C.

community titles scheme see the Body Corporate and Community Management Act 1997, section 10.

condition report means a report that, under section 76 or 77, is prepared, signed by a scheme operator and given to a resident or former resident.

conviction, for part 5, division 1, see section 87.

cooling-off period, for a residence contract, means a 14-day period starting on—

(a)the day the contract is signed; or

(b)if the residence contract is subject to a later event happening or another contract being entered into—the day the later event happens or the other contract is entered into.

day-to-day maintenance, of a capital item, means maintenance of the item that is carried out regularly and with little expense.

decision notice see section 28(5).

deregistration notice see section 28A(2).

dispute notice see section 157.

draft budget means each of the following—

(a)a draft of a capital replacement fund budget that complies, as far as practicable, with the requirements applying, under part 5, division 4, to capital replacement fund budgets;

(b)a draft of a maintenance reserve fund budget that complies, as far as practicable, with the requirements applying, under part 5, division 5, to maintenance reserve fund budgets;

(c)a draft of a general services charge budget that complies, as far as practicable, with the requirements applying, under part 5, division 7 to general services charge budgets.

excluded contract means a written contract between an approved provider and another person under which the approved provider agrees to provide residential care to the person that is at least equivalent to the standard of care that would be required for the approved provider to meet the approved provider’s responsibilities under the Aged Care Act 1997 (Cwlth), chapter 4.

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

exemption start day, for part 3, division 5B, see section 70H.

exempt scheme, for part 3, division 5B, see section 70C.

existing residence contract see section 11.

existing retirement village means a retirement village existing immediately before the commencement of this Act.

existing scheme operator, for part 2, division 5, see section 41C(1).

exit entitlement see section 16.

exit fee see section 15(1).

former resident includes—

(a)a person who, personally or for someone else, entered into a residence contract to secure the person’s or other person’s right to reside in a retirement village; and

(b)the former resident’s personal representative.

freehold interest means a fee simple interest in a lot under the Land Title Act 1994.

freehold property, of a resident or former resident, see section 11A.

FTI Act see section 3A(1).

general services are services supplied, or made available, to all residents of a retirement village.

Examples of general services—

•management and administration

•gardening and general maintenance

•a shop or other facility for supplying goods to residents

•a service or facility for the recreation or entertainment of residents

general services charge see section 18B.

general services charge budget see section 102A(1).

general services charges fund see section 18A.

gross ingoing contribution means the ingoing contribution before any deductions are made.

ingoing contribution see section 14.

insolvent under administration ...

leasehold interest means an interest created by an instrument of lease for a lot under the Land Title Act 1994.

maintenance, of a capital item—

(a)means the upkeep of the capital item in good condition and efficient working order; and

(b)to the extent it is not inconsistent with paragraph (a), includes doing something that, under a ruling under the Taxation Administration Act 1953 (Cwlth) dealing with maintenance of capital items, is maintenance of the capital item.

maintenance reserve fund see section 19.

maintenance reserve fund budget see section 99(1).

maintenance reserve fund contribution see section 20.

manager, of a retirement village, means the person in charge of its day-to-day operation.

mediation agreement see section 163.

mediation conference see section 158.

mediator means a person who is—

(a)accredited as a mediator under the Dispute Resolution Centres Act 1990, section 27AB; or

(b)approved as a mediator under the Uniform Civil Procedure Rules 1999; or

(c)approved as a mediator by the Bar Association of Queensland or the Queensland Law Society Incorporated.

new scheme operator, for part 2, division 5, see section 41C(1).

personal services are optional services supplied or made available for the benefit, care or enjoyment of a resident of a retirement village.

Examples of personal services—

•laundry

•meals

•cleaning the resident’s accommodation unit

presiding case manager ...

prospective costs document, for a prospective resident, means a document complying with section 75(2) containing information relevant to the prospective resident entering into a residence contract.

public information document ...

QCAT information notice means a notice complying with the QCAT Act, section 157(2).

quantity surveyor means a person who holds—

(a)a member grade, or a fellow grade, membership with the Australian Institute of Quantity Surveyors; or

(b)an equivalent grade of membership with a successor of the Australian Institute of Quantity Surveyors, by whatever name called.

quarter means the 3-month period ending on 31 March, 30 June, 30 September or 31 December.

real estate agent means a real estate agent under the Property Occupations Act 2014.

redevelopment plan see section 113E.

registered, for part 6, division 2, see section 115.

registered company auditor means a person registered as an auditor, or taken to be registered as an auditor, under the Corporations Act, part 9.2.

registrar means the principal registrar under the QCAT Act.

registrar of titles means the registrar of titles under the Land Title Act 1994.

reinstatement work, for part 3, division 5, see section 56(1).

relative, of a resident, means the resident’s spouse, mother, stepmother, father, stepfather, sister, stepsister, half-sister, brother, stepbrother, half-brother, child or stepchild.

relevant conviction, for part 5, division 1, see section 87.

repairs, to a capital item—

(a)means the restoration of the item by fixing or replacing parts of the item; and

(b)to the extent it is not inconsistent with paragraph (a), includes doing something that, under a ruling under the Taxation Administration Act 1953 (Cwlth) dealing with repairs to capital items, is repairs to the capital item.

repealed Act means the repealed Retirement Villages Act 1988.

replacement, of a capital item—

(a)means the substitution of the same type of item or an equivalent item; and

(b)to the extent it is not inconsistent with paragraph (a), includes doing something that, under a ruling under the Taxation Administration Act 1953 (Cwlth) dealing with replacement of capital items, is replacement of the capital item.

residence contract see section 10.

resident—

(a)see section 9; and

(b)for part 3, division 4, see section 51.

residential care has the meaning given by the Aged Care Act 1997 (Cwlth).

residential care subsidy has the meaning given by the Aged Care Act 1997 (Cwlth).

residents committee means a committee established under section 127.

residents meeting notice—

(a)for part 2, division 4, see section 40B(1)(b); or

(b)for part 5, division 10, see section 113D(b).

retirement village see section 5.

retirement village dispute see section 21.

retirement village issue see section 22.

retirement village land see section 6.

retirement village scheme see section 7.

retirement village scheme operator see section 8.

right to reside, for part 3, division 5B, see section 70C.

running redevelopment see section 113C(1).

scheme means a retirement village scheme.

scheme operator means a retirement village scheme operator.

security means an interest, mortgage or other charge in or over land.

service agreement see section 12.

services charge means a charge payable by a resident for a general or personal service under a residence contract.

sold, for a right to reside in an accommodation unit, means when a contract for the sale of the right is settled.

special resolution, at a residents meeting, means a resolution passed—

(a)at the meeting of which the residents are given at least 21 days written notice stating the intention to propose the resolution as a special resolution; and

(b)by at least three-quarters of the persons entitled to vote who vote—

(i)personally or by proxy at the meeting; or

(ii)by postal ballot.

termination date, for part 3, division 5, see section 56.

transition plan see section 41E.

tribunal means QCAT.

tribunal panel ...

valuer, for part 3, division 5, see section 70.

village comparison document, for a scheme, means the following document as amended from time to time—

(a)for a scheme to which section 237L applies, the document prepared under that section;

(b)otherwise, the document that becomes the village comparison document for the scheme under section 74(3).

wind down, in relation to a retirement village scheme, means gradually reduce the retirement village’s operations ahead of the cessation of the retirement village’s operations.