Retirement Villages (Amendment) Act 2005 (Vic)
Retirement Villages (Amendment) Act 2005
Act No. 4/2005
table of provisions
Section Page
1.Purpose
2.Commencement
3.Definitions
4.Retirement village notice
5.Substitution of section 19
19.Resident to be given certain documents
6.Requirements as to information given to residents
7.Insertion of new sections 21A and 21B
21A.Offence not to use a contract that complies with the regulations
21B.Further matters relating to contracts
8.Application of section 26
9.Extinguishment of part of charge as to part of land
10.Insertion of new Part 5A
Part 5A—Sale of premises by certain residents
32A.Options
32B.Sale of premises
32C.Manager not to interfere in sale
32D.Costs of sale
32E.Purchaser and manager to enter into contract
32F.Application by owner resident to Tribunal
32G.Tribunal's determinations on application of manager or owner resident
11.Repeal of arbitration provision
12.Role of residents committee in disputes
13.Insertion of new section 36A
36A.Resident's right to act through representative
14.Insertion of new Part heading
Part 6A—Operation and Management of retirement Villages
Division 1—Maintenance and Other Charges
15.Maintenance charges
16.Insertion of new sections 38A to 38H and Parts 6B and 6C
38A.Charges for personal services
38B.Maintenance charges—former non-owner residents
Division 2—Powers of Attorney and Proxies
38C.Manager not to demand power of attorney
38D.Manager not to demand appointment as proxy
Division 3—Dispute Mediation
38E.Procedure for dealing with management complaints
38F.Procedure for dealing with resident disputes
38G.Residents to be informed of complaints and disputes mechanisms
38H.Recording and reporting requirements
Part 6B—Matters relating to Cessation of Occupation of Premises
38I.Payments to owner residents
Part 6C—Register of Retirement Villages
38J.Obligation to keep register
38K.Inspection of the register
38L.Requirement to notify Director
17.Cancellation of notices as to part of land
18.Insertion of new sections 40 to 41A
40.Application of Fair Trading Act 1999
41.Who may bring proceedings for offences?
41A.Offence to supply false or misleading information
19.Insertion of new section 42A
42A.Certain contractual provisions relating to arbitration
void
20.Further regulation making powers
21.Insertion of new Part 8
Part 8—Transitional
45.Definitions
46.Transitional provision—residential care facilities—2005 Amendment Act
47.Transitional provision—Extinguishment of charge relating to residential care facilities—2005 Amendment Act
48.Transitional provision—Cancellation of notices relating to residential care facilities—2005 Amendment Act
49.Transitional provision—contracts—2005 Amendment Act
50.Transitional provision—appointment of agents—2005 Amendment Act
51.Transitional provision—powers of attorney—2005 Amendment Act
52.Transitional provision—payments to owner residents—2005 Amendment Act
53.Transitional provision—registration of retirement villages—2005 Amendment Act
54.Transitional provision—contractual provisions relating to arbitration—2005 Amendment Act
22.Repeal of form of retirement village notice
23.Repeal of form of disclosure statement
24.Repeal of form of check list
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Endnotes
Retirement Villages (Amendment) Act 2005
[Assented to 5 April 2005]
The Parliament of Victoria enacts as follows:
1.Purpose
The purpose of this Act is to amend the Retirement Villages Act 1986—
(a)to make further provision in relation to the sale of premises in retirement villages, the operation and management of retirement villages and the occupation of premises in retirement villages;
(b)to establish a register of retirement villages;
(c)to make further provision for enforcement powers;
(d)to provide for other matters in relation to retirement villages.
2.Commencement
(1)Subject to sub-section (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 August 2006, it comes into operation on that day.
3.Definitions
In section 3(1) of the Retirement Villages Act 1986—
(a)insert the following definitions—
' "close associate", in relation to a manager of a retirement village, means—
(a)if the manager is a natural person—
(i)the spouse, domestic partner, parent, child or sibling of the manager; or
(ii)the parent, child or sibling of the spouse or domestic partner of the manager; or
(iii)a body corporate of which the manager (or the manager's spouse, domestic partner, parent, child or sibling, or the parent, child or sibling of the spouse or domestic partner of the manager) is a director or secretary; and
(b)if the manager is a body corporate—
(i)a director or secretary of the body corporate or of a related body corporate (within the meaning of the Corporations Act); or
(ii)the spouse, domestic partner, parent, child or sibling of such a director or secretary; or
(iii)the parent, child or sibling of the spouse or domestic partner of such a director or secretary; or
(iv)a related body corporate; and
(c)in either case, an agent or employee of the manager;
"maintenance charge" means a recurring charge payable by a resident for the provision of goods or services by a manager;
"management complaint" means any complaint that a resident has against the manager of a retirement village about—
(a)the control, management or administration of the retirement village by the manager; or
(b)any action or failure to act by the manager that affects residents' use or enjoyment of the retirement village land; or
(c)the provision of services or a failure to provide services by the manager to residents of the retirement village;
"non-owner resident", in relation to a retirement village, means a person who is a resident of the village, who does not own the land the person occupies as a private residence in the village, and "premises", in relation to any such resident, means the land so occupied by that resident;
"owner resident", in relation to a retirement village, means a resident of the village who owns the land that the resident occupies as a private residence in the village, and "premises", in relation to any such resident, means the land so owned and occupied by that resident;
"personal services", in relation to services provided by a manager of a retirement village, means those services provided by the manager that a resident of the village may choose to use but which it is not necessary that the manager provide for the purposes of the maintenance of the village;
"register" means the register kept and maintained by the Director under section 38J;
"related body corporate" has the same meaning as in the Corporations Act;
"residential care facility" means any premises—
(a)in which—
(i)a residential care service; or
(ii)a multi purpose service—
within the meaning of the Aged Care Act 1997 of the Commonwealth, is operated by an approved provider within the meaning of that Act; and
(b)in respect of which an allocation of residential care places or flexible care places is in effect under Division 15 of that Act;
"resident dispute" means a dispute between residents in a retirement village about any action or failure to act by residents in the retirement village that affects—
(a)the use and enjoyment of the retirement village land by other residents in the retirement village; or
(b)the use of services by other residents in the retirement village, being services provided to residents in the retirement village by the manager;
"Tribunal" means the Victorian Civil and Administrative Tribunal established under the Victorian Civil and Administrative Tribunal Act 1998.';
(b)the definition of "arbitrator" is repealed;
(c)for the definition of "disclosure statement" substitute—
' "disclosure statement", in relation to a retirement village, means a statement, in the prescribed form, setting out—
(a)the day on which the retirement village notice for the retirement village was lodged with the Registrar of Titles under Part 2; and
(b)particulars of any mortgage, charge or other encumbrances over the retirement village land that take priority to the rights of residents of the retirement village under this Act; and
(c)particulars of any agreement entered into in relation to the retirement village land relating to the priority of residence rights over earlier encumbrances over the land; and
(d)the day on which notification of the charge created by Part 5 over the retirement village land was given to the Registrar of Titles; and
(e)any other prescribed matters;';
(d)for the definition of "resident" substitute—
' "resident" means a retired person who lives or proposes to live in a retirement village and—
(a)in Part 5 (other than section 32) and in section 34 includes—
(i)a person who was a resident of, but has left, a retirement village; and
(ii)if a person, who while a resident of a retirement village, has died, the person's legal personal representative; and
(b)in section 32 and section 39 includes a person to whom paragraph (a) applies, if that person's entitlements under a residence contract have not yet been paid;';
(e)in the definition of "residence documents"—
(i)for paragraph (f) substitute—
"(f)a list, in the prescribed form, of important information that a person should consider before deciding to become a resident in a retirement village;";
(ii)at the end of the definition insert—
"(h)any other document that is prescribed for the purposes of this definition;";
(f)in the definition of "residence right", after "or other services provided for a retirement village" insert "(not being a service provided in a residential care facility)";
(g)in paragraph (a) of the definition of "retirement village", after "accommodation and services" insert "other than services that are provided in a residential care facility";
(h)in the definition of "retirement village land", after "a retirement village" insert ", other than any part of any such land on which a residential care facility is situated";
(i) for the definition of "retirement village notice" substitute—
' "retirement village notice" means a notice lodged with the Registrar of Titles under section 9(1);'.
4.Retirement village notice
In section 9 of the Retirement Villages Act 1986—
(a)in sub-section (1) , for "retirement village notice" substitute "notice";
(b)in sub-section (3) —
(i)for "A retirement village notice" substitute "A notice under sub-section (1)";
(ii)for paragraph (a) substitute—
"(a)must contain the prescribed information;".
5.Substitution of section 19
For section 19 of the Retirement Villages Act 1986 substitute—
"19.Resident to be given certain documents
(1)At least 21 days before a resident enters into any residence contract, the owner or the owner's agent must give a copy of the contract to the resident.
Penalty:200 penalty units.
(2)At least 21 days before a resident enters into any management contract with the manager of a retirement village, the manager must give to the resident the following documents—
(a)a copy of the management contract;
(b)the disclosure statement;
(c)the by-laws of the village;
(d)all other documents referred to in the definition of residence documents.
Penalty:200 penalty units.".
6.Requirements as to information given to residents
(1)In section 20(2) of the Retirement Villages Act 1986, for "a question in Part 2 of the check list" substitute "a question in the document described in paragraph (f) of the definition of residence documents".
(2)In section 20(5) of the Retirement Villages Act 1986, after "sections 21" insert ", 21A".
7.Insertion of new sections 21A and 21B
After section 21 of the Retirement Villages Act 1986 insert—
"21A.Offence not to use a contract that complies with the regulations
An owner must not enter into a contract with a resident, which is required by the regulations to comply with the regulations, unless the contract so complies.
Penalty:60 penalty units.
21B.Further matters relating to contracts
(1)If a matter is required by the regulations to be excluded from a particular class of contract and a contract of that class is entered into that includes such a matter, that contract is void to the extent of that matter.
(2)If a term is required by the regulations to be in a class of contract, that term is deemed to be in any contract of that class that is entered into.
(3)If a contract that is of a particular class is required by the regulations to be in a prescribed form and a contract of that class is entered into that is not in the prescribed form, the contract is not enforceable against a resident who has entered into it to the extent that it is not in the prescribed form.
(4)If a contract is of a class to which the regulations apply and the contract is varied and the effect of the variation is such that the contract does not comply with the regulations, the contract is not enforceable against a resident who has entered into it to the extent of that variation.".
8.Application of section 26
For section 26(2) of the Retirement Villages Act 1986 substitute—
"(2)If there is included in a statement mentioned in sub-section (1)(a) or (1)(b) a condition which must be fulfilled before an amount becomes refundable under sub-section (1), the condition is deemed to be void unless the condition is—
(a)in the case of a resident who is an owner resident, in or to the effect that the resident or the resident's legal personal representative becomes entitled to recover the amount—
(i)on a day not more than 14 days after the day on which the purchase of the premises from the owner resident is completed; or
(ii)if a person takes up residence in the premises in accordance with the contract for the purchase of the premises from the owner resident before the purchase is completed, on a day not more than 14 days after the day on which the person so takes up residence; or
(b)in the case of a resident who is a non-owner resident, in or to the effect that the resident or the resident's legal personal representative is only entitled to recover the amount—
(i)if payment is made by another person under a residence contract in respect of the premises of the non-owner resident, that is the equivalent of the amount owed to the non-owner resident after the non-owner resident has delivered up vacant possession of the premises, on a day not more than 14 days after the day on which the payment is so made; or
(ii)on a day not more than 14 days after the day on which another person takes up residence in the premises of the non-owner resident after the non-owner resident has delivered up vacant possession of the premises; or
(iii)on a day which is not more than 6 months after the non-owner resident has delivered up vacant possession—
whichever is the earlier; or
(c)the condition is in accordance with the regulations.".
9.Extinguishment of part of charge as to part of land
(1)In section 32(1) of the Retirement Villages Act 1986—
(a)in paragraph (c), for "this section." substitute "this section; or";
(b)after paragraph (c) insert—
"(d)in accordance with section 47.".
(2)In section 32(2) of the Retirement Villages Act 1986, after "is extinguished" insert "whether as to the whole or as to a part of the land that is the subject of the charge".
(3)In section 32(3) of the Retirement Villages Act 1986—
(a)in paragraph (b)(i) for "retirement village land" substitute "land to which the application relates";
(b)in paragraph (c), for "(b)." substitute "(b);";
(c)after paragraph (c) insert—
"(d)if so required by the Director, must include any information that is reasonably necessary to establish the boundaries of the land to which the application relates and the use to which that land is put.".
(4)In section 32(6)(a) of the Retirement Villages Act 1986, for "the land charged" substitute "the land to which the application relates".
(5)For section 32(7) of the Retirement Villages Act 1986 substitute—
"(7)If, in respect of land charged under this Part there is produced to the Registrar of Titles—
(a)a copy of the Government Gazette in which the Director has published a declaration that the charge is extinguished (to the extent that it applies to the land that is the subject of an application under sub-section (2) that has been granted), the Registrar may—
(i)delete any recordings of the charge (to the extent that the recordings apply to the land that is the subject of an application that has been granted) from the Register; or
(ii)make a recording in the Register of the extinguishment of the charge (to the extent that the recording applies to the land that is the subject of an application that has been granted)—
as the case requires; or
(b)an agreement in writing signed by all the residents whose refundable in-going contributions are secured by the charge to the effect that the charge is extinguished, the Registrar may—
(i)delete any recordings of the charge from the Register; or
(ii)make a recording in the Register of the extinguishment of the charge—
as the case requires; or
(c)a copy of the order of the Supreme Court to the effect that the charge is extinguished, the Registrar may—
(i)delete any recordings of the charge from the Register; or
(ii)make a recording in the Register of the extinguishment of the charge—
as the case requires.".
10.Insertion of new Part 5A
After section 32 of the Retirement Villages Act 1986 insert—
'Part 5A—Sale of premises by certain residents
32A.Options
(1)A person who holds an option to purchase from an owner resident of a retirement village any premises of that owner resident, must decide whether or not to exercise the option, and that person must give the owner resident written notification of that decision not more than 28 days after the owner resident notifies the person, in writing, that the premises are for sale.
(2)If a person who holds such an option does not give the notification required by sub-section (1) within the time required by the sub-section, the option lapses.
(3)This section has effect despite any term in the option.
32B.Sale of premises
(1)An owner resident of a retirement village may—
(a)set the sale price of his or her premises in the village; and
(b)appoint a selling agent of the owner resident's choice (who may be the manager of the village if the manager is eligible to be appointed).
(2)If the manager of a retirement village is appointed to act as the agent of an owner resident of the village in the sale of that owner resident's premises, the owner resident may allow (but is not obliged to allow) the manager to set the sale price of the premises.
(3)Any appointment of the manager of a retirement village, or a person chosen by the manager of a retirement village—
(a)to act as the agent of an owner resident of the village in the sale of the owner resident's premises; or
(b)as the person who sets the sale price of any such premises—
being an appointment made as part of the consideration for the owner resident entering the village, or otherwise at the manager's request, is void.
(4)A manager, or a person chosen by a manager, who is appointed as an agent for the sale of the premises of an owner resident under sub-section (1) must, if the owner resident so requests, provide the owner resident at the end of each named month with a report—
(a)detailing the marketing program (including details of all advertising of the premises or the village); and
(b)listing all inquiries about the sale; and
(c)providing the names and telephone numbers (or other contact details) of the persons who made the inquiries (in so far as these are known to the manager); and
(d)providing details (including the asking price) of all other residential premises for sale in the village—
during that month.
Penalty:60 penalty units.
(5)If a person, other than the manager, is appointed as an agent for the sale of the premises of an owner resident in a retirement village, the owner resident must notify the manager in writing of—
(a)the name and contact details of the person who is so appointed; and
(b)the asking price for the premises; and
(c)any changes to—
(i)the appointment and contact details; and
(ii)the asking price for the premises.
Penalty:60 penalty units.
32C.Manager not to interfere in sale
(1)A manager of a retirement village who is not appointed as an agent for the sale of the premises of an owner resident in the village must not interfere with the sale of the premises.
Penalty:60 penalty units
(2)Without limiting sub-section (1), a manager interferes with the sale of the premises if the manager interferes with any "For Sale" sign relating to the premises.
(3)Sub-section (2) does not apply if the sign has been erected contrary to the village by-laws or in such a way as to interfere with the peace, comfort and quiet enjoyment of another resident of the village.
32D.Costs of sale
An owner resident of a retirement village is not liable to pay commission on the sale of his or her premises to the manager of the village or a person chosen by the manager, if the premises are sold otherwise than as a result of the manager (or person) acting as the agent for the sale of the premises.
32E.Purchaser and manager to enter into contract
(1)If an owner resident sells his or her premises in a retirement village, the owner resident must give the manager sufficient notice of the proposed sale to enable the manager to comply with section 19.
Penalty:60 penalty units.
(2)Any contract for the sale of the premises of an owner resident in a retirement village is deemed to include a provision to the effect that the contract is conditional on the purchaser entering into a management contract with the manager of the village on or before completion of the purchase.
(3)As soon as practicable after the contract for the sale of the premises is entered into, the owner resident must notify the manager of the retirement village in writing of that fact.
Penalty:60 penalty units.
(4)If the manager of the retirement village decides not to enter into a management contract with the purchaser, the manager must, not later than 21 days after being notified under sub-section (3)—
(a)advise the owner resident of that decision and of the reasons for it; and
(b)apply to the Tribunal for an order declaring that the manager is not obliged to enter into the management contract.
32F.Application by owner resident to Tribunal
If the manager of the retirement village does not, within 21 days after being given notification under section 32E(3), either—
(a)enter into a management contract with the purchaser; or
(b)apply to the Tribunal under section 32E(4)—
the owner resident may apply to the Tribunal for an order directing the manager to enter into a management contract with the purchaser.
32G.Tribunal's determinations on application of manager or owner resident
(1)On application under section 32E(4) or 32F, the Tribunal may determine whether the decision of the manager not to enter into a management contract is reasonable in the circumstances, having regard to—
(a)whether the premises concerned are suitable for occupation by the purchaser (or another person the purchaser intends to allow to live in the premises), having regard to his or her physical and mental capacity; and
(b)any other factor that the Tribunal considers relevant.
(2)For the purposes of sub-section (1)(b), the age of the purchaser (or another person whom the purchaser intends to allow to live in the premises) is not relevant if the purchaser (or the other person) is a retired person.
(3)On making its determination under sub-section (1), the Tribunal may make an order of the kind referred to in section 32E(4) or 32F, as appropriate, regardless of whether that is the order sought.
(4)An order referred to in section 32F may also, if the Tribunal considers it appropriate, set the terms of the management contract to be entered into, having regard to the management contracts in force in the village.
(5)If the Tribunal makes the order referred to in section 32F, the Tribunal may also order the manager to pay such compensation to the owner resident or the purchaser (or both) for delay and inconvenience as it considers just in the circumstances.'.
11.Repeal of arbitration provision
Section 35 of the Retirement Villages Act 1986 is repealed.
12.Role of residents committee in disputes
(1)In section 36(7) of the Retirement Villages Act 1986, for "an arbitrator" substitute "a mediator".
(2)After section 36(7) of the Retirement Villages Act 1986 insert—
"(7A)The residents committee must not act as a mediator in any dispute between residents when the dispute is being dealt with by the manager under Division 3 of Part 6A.".
13.Insertion of new section 36A
After section 36 of the Retirement Villages Act 1986 insert—
"36A.Resident's right to act through representative
Despite any resolution or decision at an annual meeting or at a meeting of the residents committee that is to the contrary, a resident may appoint another person to act in the place of that person at any annual meeting or meeting of the residents committee.".
14.Insertion of new Part heading
After section 37 of the Retirement Villages Act 1986 insert—
"Part 6A—Operation and Management of retirement Villages
Division 1—Maintenance and Other Charges".
15.Maintenance charges
In section 38 of the Retirement Villages Act 1986, the definition of "maintenance charge" is repealed.
16.Insertion of new sections 38A to 38H and Parts 6B and 6C
After section 38 of the Retirement Villages Act 1986 insert—
'38A.Charges for personal services
The manager of a retirement village must not levy a charge for personal services against a person who has ceased to be a resident of a retirement village for any period that is 28 days or more after the time at which the person ceases to be such a resident.
Penalty:60 penalty units.
38B.Maintenance charges—former non-owner residents
(1)The liability of a former non-owner resident of premises in a retirement village for maintenance charges that arise on or after the time at which the former non-owner resident ceased to occupy the premises, ceases on—
(a)the date on which another person enters into a management contract with the manager for the premises; or
(b)the date on which a person takes up residence in the premises with the consent of the manager; or
(c)the date that is 6 months after the date on which the former non-owner resident otherwise delivers up vacant possession of the premises—
whichever date occurs first, or any earlier date that the former non-owner resident and the manager may agree on.
(2)Sub-section (1) does not apply if the contract under which the non-owner resident pays maintenance charges provides for an earlier cessation of liability for the payment of maintenance charges.
(3)In this section "former non-owner resident", in relation to a retirement village, means a person who was a resident of the village but who has ceased to be such a resident.
Division 2—Powers of Attorney and Proxies
38C.Manager not to demand power of attorney
(1)The manager of a retirement village must not—
(a)require a resident of the retirement village to give the manager a power of attorney in favour of the manager; or
(b)accept a power of attorney given in favour of the manager by a resident of the retirement village.
Penalty:60 penalty units.
(2)The manager of a retirement village must not require a resident of the retirement village to give a power of attorney in favour of—
(a)a close associate of the manager; or
(b)a person nominated by the manager.
Penalty:60 penalty units
(3)A person who—
(a)is a close associate of the manager of a retirement village; or
(b)is nominated by a manager of a retirement village to accept a power of attorney from a resident of the village—
must not accept a power of attorney given in favour of that person by a resident of the retirement village.
Penalty:60 penalty units.
(4)A power of attorney given in favour of a manager of a retirement village (or a close associate of the manager or a person nominated by the manager) by a resident of the retirement village is void.
(5)Sub-sections (1)(b), (3) and (4) do not apply if the resident who gives the power of attorney is a relative of the manager, close associate or nominated person (as the case requires).
(6)This section does not apply to any power of attorney that is of a prescribed class of powers of attorney.
(7)This section has effect despite any term of the power of attorney.
38D.Manager not to demand appointment as proxy
(1)The manager of a retirement village must not—
(a)require a resident of the retirement village to appoint the manager as the proxy of the resident; or
(b)accept an appointment to act as the proxy of a resident of the retirement village.
Penalty:60 penalty units.
(2)The manager of a retirement village must not require a resident of the retirement village to appoint—
(a)a close associate of the manager; or
(b)a person nominated by the manager—
as a proxy of the resident.
Penalty:60 penalty units.
(3)A person who—
(a)is a close associate of the manager of a retirement village; or
(b)is nominated by the manager of a retirement village to be appointed to act as a proxy of a resident of the retirement village—
must not accept an appointment to act as a proxy of a resident of the retirement village.
Penalty:60 penalty units.
(4)An appointment of the manager of the retirement village (or a close associate of the manager or a person nominated by the manager) as the proxy of a resident of the retirement village is void.
(5)Sub-sections (1)(b), (3) and (4) do not apply if the resident of the retirement village who makes the appointment is a relative of the manager, the close associate or nominated person (as the case requires).
(6)This section has effect despite any term of the proxy.
Division 3—Dispute Mediation
38E.Procedure for dealing with management complaints
(1)The manager of a retirement village must set out in a document the procedure to be used by the manager in addressing management complaints and must include the following information in that document—
(a)the name of the person or persons to whom residents may give notice of management complaints; and
(b)the times and places at which notice of management complaints may be given, which must not unreasonably restrict the ability of residents to give such notices; and
(c)the process the manager is to use to consider management complaints and advise residents of the outcome of that consideration, including—
(i)the restrictions on the manager's powers under sub-section (3); and
(ii)the nature of the manager's obligation under sub-section (4); and
(d)the fact that residents may seek advice on management complaints from the Director or from the body managed by the Director, the name of the body managed by the Director from which advice may be sought and the public contact telephone number and postal address of that body.
Penalty: 60 penalty units.
(2)The manager of a retirement village must establish and maintain the procedure for dealing with management complaints that is set out in the document under sub-section (1).
Penalty:60 penalty units.
(3)The manager of a retirement village must not set out in a document under sub-section (1) or establish or maintain a procedure—
(a)that enables the manager to take any action that is—
(i)without the consent of the person making the management complaint; or
(ii)duplicates, is inconsistent with or overrides any other law; or
(iii)duplicates, is inconsistent with or overrides the provisions of any contract between the person making the management complaint and the manager; or
(b)that requires notification of a management complaint to be in writing; or
(c)that enables a management complaint to be dealt with at the same time as the complaint is being dealt with by the residents committee; or
(d)that prevents a resident who has made a management complaint from being represented by another person when dealing with the management complaint.
(4)If, within 72 hours of being given notice of a management complaint, the manager is unable to resolve the complaint, the manager must create and maintain a written record of the complaint in accordance with the regulations.
Penalty:60 penalty units.
(5)The manager of a retirement village must not take any action that might reasonably be regarded as—
(a)deterring a person from making a management complaint; or
(b)causing detriment to a resident because that resident or another resident has made or proposes to make a management complaint.
Penalty:60 penalty units.
38F.Procedure for dealing with resident disputes
(1)The manager of a retirement village must set out in a document the procedure to be used by the manager in mediating resident disputes and must include the following information in that document—
(a)the name of the person or persons to whom residents may give notice of resident disputes; and
(b)the times and places at which notice of resident disputes may be given, which must not unreasonably restrict the ability of residents to give such notices; and
(c)the process the manager is to use to mediate resident disputes and advise residents of the outcome of that mediation, including—
(i)the restrictions on the manager's powers under sub-section (3); and
(ii)the nature of the manager's obligation under sub-section (4); and
(d)the fact that residents may seek advice from the Director on resident disputes or from the body managed by the Director, the name of the body managed by the Director from which advice may be sought and the public contact telephone number and postal address of that body.
Penalty: 60 penalty units.
(2)The manager of a retirement village must establish and maintain the procedure for dealing with resident disputes that is set out in the document under sub-section (1).
Penalty:60 penalty units.
(3)The manager of a retirement village must not set out in a document under sub-section (1) or establish or maintain a procedure—
(a)that enables the manager to take any action that is—
(i)without the consent of a party to a resident dispute; or
(ii)duplicates, is inconsistent with or overrides any other law; or
(iii)duplicates, is inconsistent with or overrides the provisions of any contract between a party to the resident dispute and the manager; or
(b)that requires notification of a resident dispute to be in writing; or
(c)that enables a resident dispute to be dealt with at the same time as the dispute is being dealt with by the residents committee; or
(d)that prevents a resident who is a party to a resident dispute from being represented by another person when dealing with the dispute.
(4)If, within 72 hours of being given notice of a resident dispute, the manager is unable to resolve the dispute, the manager must create and maintain a written record of the dispute in accordance with the regulations.
Penalty:60 penalty units.
(5)The manager of a retirement village must not take any action that might reasonably be regarded as—
(a)deterring a person from giving notice of a resident dispute; or
(b)causing detriment to a resident because that resident or another resident has given or proposes to give notice of a resident dispute.
Penalty:60 penalty units.
38G.Residents to be informed of complaints and disputes mechanisms
The manager of a retirement village must ensure that all residents are—
(a)informed of the matters contained in the documents required under sections 38E and 38F; and
(b)ensure that copies of the documents required under sections 38E and 38F are readily available to all residents.
Penalty:60 penalty units.
38H.Recording and reporting requirements
(1)The manager of a retirement village must keep a record of all management complaints made and resident disputes of which notice has been given in the retirement village, including records of any outcome reached and the action, if any, taken in relation to each complaint and dispute.
Penalty:60 penalty units.
(2)The manager of a retirement village must, at the annual meeting of the residents of the village, without identifying the parties to a management complaint or resident dispute, present a report on—
(a)the number and nature of management complaints made or resident disputes of which notice has been given in the previous year; and
(b)the outcome of each complaint or dispute, including any action taken to resolve the complaint or dispute; and
(c)any changes made or proposed to be made to address issues arising out of a complaint or dispute.
Penalty:60 penalty units.
Part 6B—Matters relating to Cessation of Occupation of Premises
38I.Payments to owner residents
(1)A person who is liable to make a payment to—
(a)a former resident of a retirement village on the former resident leaving the retirement village; or
(b)the estate of a former resident on the resident's death—
being a payment that is consequent on the former resident so leaving or dying, must make that payment—
(c)within 14 days after the resident so leaves or dies; or
(d)if the former resident is not entitled to recover the amount until the fulfilment of a condition of a kind to which section 26(2)(a) or (b) applies, on the day on which the payment is required to be made under that condition.
Penalty:60 penalty units.
(2)At the same time as the payment is made, the manager of the retirement village must give the former resident a statement setting out all amounts payable to the former resident and all amounts payable by the former resident to discharge the residence contract and showing how the amounts were calculated.
Penalty:60 penalty units.
(3)This section does not apply where the amount that is entitled to be recovered is entitled to be recovered in accordance with a condition of a kind to which section 26(2)(c) applies.
(4)In this section "former resident", in relation to a retirement village, means a person who was a resident of the village but who has left the village or who has died.
Part 6C—Register of Retirement Villages
38J.Obligation to keep register
(1)The Director must keep and maintain a register in accordance with this Part for the purpose of enabling members of the public to have access to information about the application of this Act to particular retirement villages.
(2)The Director must record in the register the following information in respect of each retirement village of which the Director has received notice under section 38L—
(a)the name of the retirement village; and
(b)the physical address of the retirement village; and
(c)the postal address of the retirement village; and
(d)if an order for an exemption has been made in relation to the retirement village under section 6, particulars of that order that are sufficient to enable that order to be identified.
38K.Inspection of the register
A member of the public may inspect the information recorded in the register under section 38J(2).
38L.Requirement to notify Director
(1)Immediately on the lodgement of a retirement village notice under section 9 of the Act, the manager of the retirement village must give a notice to the Director that sets out—
(a)the particulars that are required to enable the Director to record the information required under section 38J(2); and
(b)the particulars that are specified in sub-section (2).
Penalty:10 penalty units.
(2)For the purposes of sub-section (1)(b), the particulars are—
(a)the name and address of the manager of the retirement village; and
(b)any other prescribed particulars.
(3)The manager of a retirement village must, within 14 days of any change in any particular, of which he or she is required to notify the Director under this Part, notify the Director of the change in that particular.
Penalty:10 penalty units.
(4)The manager of a retirement village must, within 14 days of receiving a request from the Director—
(a)as to whether or not any change is required to the particulars specified under section 38J(2) or sub-section (2), notify the Director of any change that is required to the particulars on the register; or
(b)to confirm that the particulars that are on the register are correct, notify the Director—
(i)as to whether or not the particulars on the register are correct; or
(ii)if the particulars are not correct, notify the Director of any change that is required to the particulars.
Penalty:10 penalty units.'.
17.Cancellation of notices as to part of land
(1)In section 39(1) of the Retirement Villages Act 1986—
(a)in paragraph (b), for "this section." substitute "this section; or";
(b)after paragraph (b) insert—
"(c)in accordance with section 48.".
(2)In section 39(2) of the Retirement Villages Act 1986 after "is cancelled" insert "as to the whole or any part of the land that is the subject of the notice".
(3)In section 39(3) of the Retirement Villages Act 1986—
(a)in paragraph (b)(i) for "retirement village land" substitute "land to which the application relates";
(b)in paragraph (c), for "(b)." substitute "(b);";
(c)after paragraph (c) insert—
"(d)if so required by the Director, must include any information that is reasonably necessary to establish the boundaries of the land to which the application relates and the use to which the land is put.".
(4)In section 39(6) of the Retirement Villages Act 1986—
(a)after "is cancelled" insert "to the extent that it applies to land that is the subject of an application that has been granted,";
(b)in paragraph (a), for "the land to which the notice relates" substitute "the land to which the application relates".
(5)For section 39(7) of the Retirement Villages Act 1986 substitute—
"(7)If there is produced to the Registrar of Titles—
(a)an agreement signed by all residents to the effect that a retirement village notice is cancelled, the Registrar may—
(i)delete any recordings of the notice from the Register; or
(ii)make a recording in the Register of the cancellation of the notice—
as the case requires; or
(b)a copy of the Government Gazette in which the Director has published a declaration that a retirement village notice (to the extent that it applies to land that is the subject of an application under sub-section (2) that has been granted) is cancelled, the Registrar may—
(i)delete any recordings of the notice (to the extent that the notice applies to land that is the subject of the application under sub-section (2) that has been granted) from the Register; or
(ii)make a recording in the Register of the cancellation of the notice (to the extent that the notice applies to land that is the subject of the application under sub-section (2) that has been granted)—
as the case requires.".
18.Insertion of new sections 40 to 41A
For sections 40 and 41 of the Retirement Villages Act 1986 substitute—
"40.Application of Fair Trading Act 1999
(1)Part 10 of the Fair Trading Act 1999 (except sections 120, 121 and 130) extends and applies (with any necessary modifications) to this Act as if any reference in that Part to the Fair Trading Act 1999 were a reference to this Act.
(2)Sections 106HA, 143 and 144 and Division 2 of Part 11 (except sections 151A, 151B, 151C, 153 and 155) of the Fair Trading Act 1999 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Fair Trading Act 1999 were a reference to this Act.
(3)For the purposes of sub-section (2), section 154 of the Fair Trading Act 1999 applies as if a reference to prescribed proceedings were a reference to—
(a)proceedings for an offence against a provision of this Act (except an offence applied by sub-section (1)); or
(b)proceedings on an application for an injunction under section 149, 149A or 150 of the Fair Trading Act 1999 (as applied by sub-section (2)) against a person alleged to have contravened a provision of this Act (except an offence applied by sub-section (1)); or
(c)proceedings on an application for an order under section 158, or for damages under section 159, of the Fair Trading Act 1999 (as applied by sub-section (2)).
41.Who may bring proceedings for offences?
(1)Proceedings for an offence against this Act or the regulations may only be brought by—
(a)the Director; or
(b)a person authorised by the Director for the purposes of this section.
(2)In proceedings for an offence against this Act or the regulations it must be presumed, in the absence of evidence to the contrary, that the person bringing the proceedings was authorised to bring the proceedings.
(3)Sub-section (1) does not apply to proceedings for an indictable offence.
41A.Offence to supply false or misleading information
A person who is required under this Act to supply any information or particulars to the Director must not supply any information or particulars that are false or misleading.
Penalty:60 penalty units.".
19.Insertion of new section 42A
After section 42 of the Retirement Villages Act 1986 insert—
"42A.Certain contractual provisions relating to arbitration void
Any provision in a residence contract or a management contract that provides for a process of dealing with management complaints or resident disputes through arbitration is void.".
20.Further regulation making powers
(1)After section 43(1)(a) of the Retirement Villages Act 1986 insert—
"(ab)contracts entered into between owners and residents of retirement villages or managers and residents of retirement villages, including—
(i)matters that are or are not to be included in such contracts; and
(ii)forms of such contracts, including methods of setting out the substance of the contracts, other matters relating to the setting out and style of the contracts and the use of words or other symbols in the contracts;
(ac)payment of amounts to residents who have left retirement villages or died, including conditions that may or may not be included in contracts as to such payments and offences relating to such payments;".
(2)In section 43(2)(e) of the Retirement Villages Act 1986, for "5 penalty units" substitute "20 penalty units".
21.Insertion of new Part 8
After Part 7 of the Retirement Villages Act 1986 insert—
'Part 8—Transitional
45.Definitions
In this Part, "2005 Amendment Act" means the Retirement Villages (Amendment) Act 2005.
46.Transitional provision—residential care facilities—2005 Amendment Act
Despite the commencement of section 3 of the 2005 Amendment Act, this Act continues to apply to any premises that are part of retirement village land in a retirement village, being—
(a)a retirement village that is in existence at the commencement of that section; and
(b)being premises that fall within the definition of "residential care facility"—
as if the premises were not a residential care facility—
(c)unless at the time of the commencement of section 3 of that Act all persons to whom accommodation is being provided on the premises are approved as aged care recipients under Part 2.3 of the Aged Care Act 1997 of the Commonwealth; or
(d)until such time (if any), after the commencement of section 3 of that Act, as all persons to whom accommodation is being provided on the premises are approved as aged care recipients under Part 2.3 of the Aged Care Act 1997 of the Commonwealth.
47.Transitional provisionExtinguishment of charge relating to residential care facilities—2005 Amendment Act—
(1)If, within 18 months of the commencement of section 3 of the 2005 Amendment Act, premises that were part of a retirement village, immediately before the commencement of that section, come to be taken not to be part of the retirement village, by virtue of the operation of section 46(c) or (d), the owner of the land on which the premises are situated may apply to the Director for a declaration that the charge, in so far as it applies to the land on which the premises are situated, is extinguished.
(2)An application under sub-section (1)—
(a)must be in writing; and
(b)must include a statutory declaration signed by the owner of the land and stating that—
(i)the land is no longer used as a retirement village; and
(ii)the owner has notified all residents of the premises and all residents of the retirement village of which the premises was formerly a part explaining the consequences of making the declaration, in a form approved by the Director; and
(iii)the owner has no knowledge of any proceedings by a resident to obtain payment of a refundable in-going contribution or to enforce the charge; and
(c)must include a copy of the notice given to the residents referred to in paragraph (b); and
(d)if so required by the Director, must include any information that is reasonably necessary to establish the boundaries of the land to which the application relates and the use to which that land is put.
(3)The Director may grant or refuse an application under this section.
(4)On an application made in accordance with this section the Director may by instrument declare that a charge is extinguished in so far as it applies to the land to which the application relates if the Director is satisfied that the land is no longer a part of land used as a retirement village.
(5)If in respect of land charged under this Part there is produced to the Registrar of Titles a copy of the instrument in which the Director has made a declaration that the charge is extinguished, to the extent that it applies to the land that is the subject of an application under this section, the Registrar of Titles may delete any recordings of the charge from the Register or make a recording in the Register of the extinguishment of the charge.
48.Transitional provisionCancellation of notices relating to residential care facilities—2005 Amendment Act—
(1)If, within 18 months of the commencement of section 3 of the 2005 Amendment Act, premises that were part of a retirement village immediately before the commencement of that section come to be taken not to be part of that village, by virtue of the operation of section 46(c) or (d), the owner of the land on which the premises are situated may apply to the Director for a declaration that the notice, in so far as it applies to the land on which the premises are situated, is cancelled.
(2)An application under sub-section (1)—
(a)must be in writing; and
(b)must include a statutory declaration signed by the owner of the land stating that—
(i)the land to which the application relates is no longer used as a retirement village; and
(ii)the owner has served on—
(A)all residents and former residents of the premises; and
(B)all residents and former residents of the retirement village of which the premises were formerly a part; and
(C)the legal personal representatives of any former residents of the premises or retirement village who have died while residents of the village—
notice in writing explaining the consequences of making the declaration, in a form approved by the Director; and
(iii)the owner has no knowledge of any proceedings by a resident to obtain payment of a refundable in-going contribution or to enforce the charge; and
(c)must include a copy of the notice given to the residents referred to in paragraph (b); and
(d)if so required by the Director, must include any information that is reasonably necessary to establish the boundaries of the land to which the application relates and the use to which the land is put.
(3)The Director may grant or refuse an application under this section.
(4)On an application made in accordance with this section the Director may, by instrument published in the Government Gazette, declare that the retirement village notice to which the application relates is cancelled, in so far as it applies to the land to which the application relates, if the Director is satisfied that—
(a)the land is no longer a part of land used as a retirement village; and
(b)the owner has served on all residents, former residents and their legal personal representatives notice in accordance with this section.
(5)If there is produced to the Registrar of Titles a copy of the Government Gazette in which the Director has published a declaration that a retirement village notice is cancelled, to the extent that it applies to the land that is the subject of an application under this section, the Registrar of Titles may delete any recordings of the notice from the Register or make a recording in the Register of the cancellation of the notice.
49.Transitional provision—contracts—2005 Amendment Act
Section 21B does not apply to any contract entered into before the commencement of section 7 of the 2005 Amendment Act.
50.Transitional provision—appointment of agents—2005 Amendment Act
Section 32B does not apply to an agent in respect of whom an engagement is in force, immediately before the commencement of section 10 of the 2005 Amendment Act, under an appointment made by an owner resident, and that agent may continue to act under that appointment as if section 32B had not been enacted.
51.Transitional provision—powers of attorney—2005 Amendment Act
Division 2 of Part 6A does not apply to any power of attorney given before the commencement of section 16 of the 2005 Amendment Act.
52.Transitional provision—payments to owner residents2005 Amendment Act—
(1)Section 26 (as in force on and from the commencement of section 16 of the 2005 Amendment Act) and section 38I do not apply to existing contracts and section 26 (as in force immediately before that commencement) continues to apply to any such contract.
(2)A person who is liable, under an existing contract, to make a payment to—
(a)a former resident of a retirement village on the former resident leaving the retirement village; or
(b)the estate of a former resident on the resident's death—
being a payment that is consequent on the former resident so leaving or dying, must make that payment—
(c)within 14 days of the resident so leaving or dying; or
(d)if the former resident is not entitled to recover the amount until the fulfilment of a condition, on the day that is 14 days after the day on which the payment is required to be made under that condition.
Penalty:60 penalty units.
(3)At the same time as the payment is made, the manager of the retirement village must give the former resident a statement setting out all amounts payable to the former resident and all amounts payable by the former resident to discharge the residence contract and showing how the amounts were calculated.
Penalty:60 penalty units.
(4)In this section—
"existing contract" means a contract entered into before the commencement of section 16 of the 2005 Amendment Act;
"former resident", in relation to a retirement village, means a person who was a resident of the village but who has left the village or who has died.
53.Transitional provision—registration of retirement villages—2005 Amendment Act
The manager of a retirement village that is in existence on the commencement of section 16 of the 2005 Amendment Act must, within 21 days of that commencement, give a notice to the Director that complies with section 38L(1).
54.Transitional provision—contractual provisions relating to arbitration—2005 Amendment Act
Section 42A applies to any residence contract and to any management contract in force on the commencement of section 19 of the 2005 Amendment Act.'.
22.Repeal of form of retirement village notice
Schedule 1 to the Retirement Villages Act 1986 is repealed.
23.Repeal of form of disclosure statement
Schedule 2 to the Retirement Villages Act 1986 is repealed.
24.Repeal of form of check list
Schedule 3 to the Retirement Villages Act 1986 is repealed.
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Endnotes
Minister's second reading speech—
Legislative Assembly: 9 December 2004
Legislative Council: 22 March 2005
The long title for the Bill for this Act was "to amend the Retirement Villages Act 1986 and for other purposes."
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