Retirement Villages Amendment Act 2016 (ACT)

Case

Retirement Villages Amendment Act 2016

A2016-30

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2Retirement Villages Act 2012

4            Meaning of residence rightSection 8 (1), definition of residence right, new paragraph (a) (iiia)         3

5            Section 8 (1), new note  3

6            Meaning of registered interest holder and registered long‑term sublesseeSection 12 (1), definition of registered long-term sublessee                  3

7           Section 12 (2)  4

8            Advertising or promoting village before development approval givenSection 16 (1) (c)  4

9            New section 16 (1A)  4

10          Section 22 heading  5

11          Section 22 (1) (b) (v) and (vi)  5

12          Section 22 (2), note 2  5

13          New section 22A  5

14          General inquiry documentSection 23 (2), except notes  6

15          Disclosure statementSection 24 (3), and note  6

16          Repaying etc holding deposits and ingoing contributionsSection 39 (1) (b) (i)  6

17          New section 39 (3A) to (3D)  7

18          New section 39 (6)  9

19          Costs of preparation of village contractsNew section 52 (7)  9

20          Cooling-off periodSection 53 (1) and (2)  9

21          New section 53 (6)  10

22          Section 60 heading  10

23          Section 60 (1) and (2)  10

24          Operator to refund certain payments made by residentSection 74 (b)  11

25          Time for making of paymentsSection 75 (1) and (2)  11

26          Operator to provide secure premisesSection 90 (2)  12

27          New section 90 (3A)  12

28          Operator to provide safe premisesNew section 91 (2) (ba) to (bc)  12

29          New section 110A  13

30          Resident may carry out urgent workSection 139 (2)  13

31          Section 139 (3)  14

32          Section 150  14

33          Recurrent charges amended otherwise than by fixed formula—exceeding variation in CPISection 151  15

34          Amending certain recurrent charges otherwise than in accordance with ActSection 152 (1) (a) to (c), except penalty  15

35          Residents consent to amendmentSection 153 (1)  16

36          Section 153 (2)  16

37          Section 153 (2), new note  16

38          ACAT orders—recurrent chargesSection 154 (4)  16

39          Proposed annual budgetSection 159 (1) (a)  17

40          Residents’ consent to spendingSection 162 (9)  17

41          Any surplus to be carried overSection 173 (1) (b)  17

42          New section 173 (2A)  17

43          Section 174A  18

44          New division 8.1A  18

45          Division 8.2 heading  20

46          Section 176 heading  20

47          Section 178  20

48          ACAT ordersSection 181 (2), new note  21

49          Recurrent charges for general services—registered interest holdersNew section 210 (4) and (5)  21

50          Payments to former occupants who were not registered interest holdersSection 238 (2)  22

51          Section 240  23

52          Priority of interestsSection 247 (c)  24

53          New part 21  24

54          Dictionary, definition of CPI  25

55          Dictionary, new definition of disputes committee  26

56          Dictionary, definition of resident, paragraph (b) (vi)  26

Part 3Retirement Villages Regulation 2013

57          New section 6A  27

58          Section 7  27

59          Schedule 1, new section 1.1A  29

60          Schedule 2, new section 2.11  30

Retirement Villages Amendment Act 2016

A2016-30

An Act to amend the Retirement Villages Act 2012 and the Retirement Villages Regulation 2013

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

  1. Name of Act

    This Act is the Retirement Villages Amendment Act 2016.

  2. Commencement

    This Act commences on a day fixed by the Minister by written notice.

    Note 1The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

    Note 2A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

    Note 3If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

  3. Legislation amended

    This Act amends the Retirement Villages Act 2012 and the Retirement Villages Regulation 2013.

Part 2Retirement Villages Act 2012

  1. Meaning of residence right
    Section 8 (1), definition of residence right, new paragraph (a) (iiia)

    insert

    (iiia)under which the person lends money to the operator of the village in consideration for, or in expectation of, the right to occupy the residential premises; or

  2. Section 8 (1), new note

    insert

    NoteThe contract that gives rise to a residence right is a residence contract, and a residence contract is a village contract (see dict).

  3. Meaning of registered interest holder and registered long‑term sublessee
    Section 12 (1), definition of registered long-term sublessee

    substitute

    registered long-term sublessee, of residential premises in a retirement village, means a person whose residence contract is in the form of a registered long‑term sublease if—

    (a)the sublease includes a provision that entitles the person to at least 50% of any capital gain; or

    (b)the person is otherwise entitled under a contract, an agreement or other arrangement to at least 50% of any capital gain.

  4. Section 12 (2)

    substitute

    (2)In this section:

    registered long-term sublease means a sublease (however described) registered under the Land Titles Act 1925 that—

    (a)has a term of at least 50 years (including any option to renew); or

    (b)is for the life of the lessee.

  5. Advertising or promoting village before development approval given
    Section 16 (1) (c)

    substitute

    (c)development approval has not been received for the development of the retirement village; and

    (d)the advertisement or other promotion mentioned in paragraph (a) (i) or (ii) does not disclose to a prospective resident that development approval has not been received for development of the retirement village.

  6. New section 16 (1A)

    after the note, insert

    (1A)A person commits an offence if—

    (a)the person enters into a village contract for a retirement village with a prospective resident; and

    (b)the development of the retirement village requires development approval; and

    (c)development approval has not been received for the development of the retirement village.

    Maximum penalty:  50 penalty units.

  7. Section 22 heading

    substitute

  8. Making certain representations—promotional material

  9. Section 22 (1) (b) (v) and (vi)

    omit

  10. Section 22 (2), note 2

    omit

  11. New section 22A

    insert

22AMaking certain representations—aged care services

(1)The operator of a retirement village commits an offence if the operator makes an express or implied representation (whether oral or in writing) that—

(a)the village is an approved provider of residential care within the meaning of the Aged Care Act 1997 (Cwlth); or

(b)residents of the village have priority access to residential care by an approved provider under the Aged Care Act 1997 (Cwlth).

Maximum penalty: 50 penalty units.

(2)An offence against subsection (1) is a strict liability offence.

Note 1Any advertising, promotional or sales material relating to a retirement village must also comply with the Fair Trading (Australian Consumer Law) Act 1992 and the Competition and Consumer Act 2010 (Cwlth).

Note 2Section 10 (1), def retirement village, par (b) (i) excludes from that definition buildings commonly known as Commonwealth-subsidised hostels and nursing homes.

(3)To remove any doubt, an operator does not make a representation for subsection (1) merely by giving an explanation or statement of—

(a)how the services of the retirement village differ from residential care services given to a prospective resident under section 23 (General inquiry document) or section 24 (Disclosure statement); or

(b)the fact that a residential aged care facility is associated with the village.

  1. General inquiry document
    Section 23 (2), except notes

    substitute

    (2)The general inquiry document must comply with any requirement prescribed by regulation.

  2. Disclosure statement
    Section 24 (3), and note

    substitute

    (3)The disclosure statement must comply with any requirement prescribed by regulation.

    Note 1Power to make a statutory instrument (including a regulation) includes power to make different provision in relation to different matters or different classes of matters (see Legislation Act, s 48).

    Note 2If a form is approved under s 263 for this provision, the form must be used.

  3. Repaying etc holding deposits and ingoing contributions
    Section 39 (1) (b) (i)

    substitute

    (i)does not intend to enter into a residence contract for a reason other than that mentioned in subparagraph (ia); or

    (ia)does not intend to enter into a residence contract because the prospective resident has been assessed as eligible for, and intends to enter into, residential care within the meaning of the Aged Care Act 1997 (Cwlth); or

  4. New section 39 (3A) to (3D)

    insert

    (3A)However, for notice under subsection (1) (b) (i), the operator may keep an amount mentioned in subsection (3B) if—

    (a)the prospective resident and the operator have entered into a village contract; and          

    (b)the prospective resident gives the notice—

    (i)after the end of the cooling-off period for the contract; and

    (ii)before final payment is made under the contract; and

    (iii)before the settling-in period for the contract begins.

    NoteCooling-off period—see s 53.    

    (3B)For subsection (3A), the amount is the reasonable costs incurred by the operator in relation to the residential premises for the period—

    (a)starting on the day after the village contract in relation to the premises is entered into; and 

    (b)ending on the earliest of the following:

    (i)14 days after the day the prospective resident gives notice under subsection (1) (b) (i);

    (ii)the day the operator of the retirement village enters into a village contract with an incoming resident in relation to the premises;

    (iii)the day the operator enters into a residential tenancy agreement with an incoming tenant in relation to the premises;

    (iv)the day a person takes up residence in the premises with the operator’s consent.

    Examples—reasonable costs

    legal expenses, commissions, advertising and marketing costs, recurrent charges

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (3C)However, the amount mentioned in subsection (3B) must not exceed—

    (a)an amount prescribed by regulation; or

    (b)if no amount is prescribed—$10 000.

    (3D)The operator may ask for evidence—

    (a)for notice given under subsection (1) (b) (ia)—of the prospective resident’s intention; or

    Examples

    1statement from a hospital that the person is in hospital waiting for a place in an aged care facility

    2evidence that the person has been offered and accepted a place in an aged care facility.  

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (b)for notice given under subsection (1) (b) (ii)—that the prospective resident has died.

  5. New section 39 (6)

    insert

    (6)In this section:

    settling-in period, for a village contract, means the period worked out for the contract under section 71 (Meaning of end of the settling‑in period—div 5.2).

  6. Costs of preparation of village contracts
    New section 52 (7)

    insert

    (7)In this section:

    preparation, of a village contract, includes the preparation of any agreement or contract that comprises the village contract.

    Examples

    loan agreement, other residence contract, services contract

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

  7. Cooling-off period
    Section 53 (1) and (2)

    substitute

    (1)A resident of a retirement village may, within the cooling-off period for the resident’s village contract, rescind the contract by written notice given to—

    (a)the other party to the contract; and

    (b)if the operator is not the other party to the contract—the operator.

  8. New section 53 (6)

    insert

    (6)In this section:

    cooling-off period, for a village contract, means the period—

    (a)starting immediately after midnight on—

    (i)the day the resident receives a copy of the contract signed by the operator; or

    (ii)for a contract that is, or includes, a residence contract in relation to which the operator is not the other party—the day the residence contract is entered into; and

    (b)ending at midnight on the 7th business day after that day.

    NoteFor when an operator must give a resident a copy of a signed village contract, see s 60 (1) and (2).

  9. Section 60 heading

    substitute

  10. Operator to give resident or prospective resident copy of village contract

  11. Section 60 (1) and (2)

    substitute

    (1)The operator of a retirement village commits an offence if—

    (a)the operator and a resident of the retirement village enter into a village contract; and

    (b)the contract is entered into by the operator and resident signing the contract in each other’s presence; and

    (c)the operator does not give the resident a copy of the contract within 14 days after it is signed.

    Maximum penalty: 50 penalty units.

    (2)The operator of a retirement village commits an offence if—

    (a)the operator and a resident of the retirement village enter into a village contract; and

    (b)the contract is entered into by the operator and resident signing the contract other than in each other’s presence; and

    (c)the operator does not, within 14 days after the resident signs the contract, give the resident a copy of the contract signed by the operator.

    Maximum penalty: 50 penalty units.

  12. Operator to refund certain payments made by resident
    Section 74 (b)

    substitute

    (b)any ingoing contribution paid to the operator under the village contract; and

  13. Time for making of payments
    Section 75 (1) and (2)

    substitute

    (1)A refund or a payment under section 74 to a former occupant, other than a former occupant who is a registered interest holder, must be made within—

    (a)14 days after the day the village contract is ended; or

    (b)if another period is ordered by the ACAT—the ordered period.

    (2)A refund or a payment under section 74 to a former occupant who is a registered interest holder must be made within 14 days after the earliest of the following:

    (a)the day the operator receives full payment under a residence contract with an incoming resident of the premises;

    (b)the day the operator enters into a village contract with an incoming resident of the premises;

    (c)the day the operator enters into a residential tenancy agreement with an incoming tenant of the premises;

    (d)the day a person takes up residence in the premises with the operator’s consent;

    (e)if the operator buys the premises from the former occupant—the day the operator completes the purchase.

  14. Operator to provide secure premises
    Section 90 (2)

    substitute

    (2)Without limiting subsection (1), the operator must ensure that—

    (a)all residential premises in the village have enough locks or other security devices necessary to make the premises reasonably secure; and

    (b)the locks and other security devices are in good working order.

  15. New section 90 (3A)

    insert

    (3A)If a tradesperson, or someone else, requires access to residential premises to carry out works, the operator must give reasonable notice of the access needed to each affected resident.

  16. Operator to provide safe premises
    New section 91 (2) (ba) to (bc)

    insert

    (ba)provide emergency assembly point signage consistent with those procedures; and

    (bb)provide signage at key points in the village to assist local emergency and home care service agencies to locate village premises; and

    (bc)give residents an emergency out-of-hours number to contact the operator in case of serious disturbances in the village; and

  17. New section 110A

    insert

110AOperator must keep minutes of meetings with residents

(1)This section applies to the following meetings of a retirement village—

(a)an annual management meeting; or

(b)a meeting between the operator and the residents of the village convened by the operator, whether under this Act or otherwise.

(2)The operator of the retirement village must keep minutes of the meeting.

NoteIf minutes or other records kept by the operator of a retirement village contain personal information, the operator must comply with the Australian Privacy Principles under the Privacy Act 1988 (Cwlth) in relation to that information.

(3)The operator must—

(a)make the minutes available for inspection by residents at the retirement village; and

(b)for minutes in relation to a meeting held on a regular basis—arrange for the minutes to be adopted at the following meeting.

(4)The operator may keep the minutes in an electronic form.

  1. Resident may carry out urgent work
    Section 139 (2)

    substitute

    (2)The operator of the retirement village must reimburse the resident  for the reasonable costs incurred by the resident in carrying out the work.

  2. Section 139 (3)

    omit

    a reasonable time of the resident seeking

    substitute

    21 days after the resident seeks

  3. Section 150

    substitute

  4. Recurrent charges amended otherwise than by fixed formula

    (1)This section applies to the amendment of recurrent charges payable under a village contract if the contract provides that the recurrent charges are to be amended otherwise than in accordance with a fixed formula.

    NoteAmendment of recurrent changes otherwise than in accordance with this Act is an offence (see s 152).

    (2)The operator of a retirement village must give a resident of the village written notice of a proposed amendment of recurrent charges under this section at least 60 days before the day the proposed amendment takes effect.

    (3)The notice must—

    (a)state the amount of the proposed recurrent charges; and

    (b)state the date it is intended that the proposed recurrent charges are to be payable; and

    (c)include details of any action taken to minimise the proposed amendment of recurrent charges; and

    (d)state that the amendment will take effect only if the residents affected by the proposed amendment consent to the amendment or the ACAT orders that it take effect; and

    (e)include anything else prescribed by regulation.

    (4)A notice may—

    (a)cancel an earlier notice under this section; or

    (b)provide for a lesser increase than the increase stated in an earlier notice.

    (5)A notice that provides for a lesser increase than the increase stated in an earlier notice is taken to have been given on the day the earlier notice was given.

    (6)However, the 30-day period mentioned in section 153 (2) (Residents consent to amendment) begins, in relation to a later notice, on the day the later notice is actually given.

    (7)If the operator operates more than 1 retirement village, the operator must deal with each village separately under this section.

  5. Recurrent charges amended otherwise than by fixed formula—exceeding variation in CPI
    Section 151

    omit

  1. Amending certain recurrent charges otherwise than in accordance with Act
    Section 152 (1) (a) to (c), except penalty

    substitute

    (a)a village contract provides that recurrent charges payable under the contract are to be amended as set out in section 150 (Recurrent charges amended otherwise than by fixed formula); and

    (b)the operator increases the recurrent charges; and

    (c)the increase is—

    (i)beyond the upper limit (if any) stated in the contract; or

    (ii)not in accordance with section 150.

  2. Residents consent to amendment
    Section 153 (1)

    omit

    section 151 (Recurrent charges amended otherwise than by fixed formula—exceeding variation in CPI)

    substitute

    section 150 (Recurrent charges amended otherwise than by fixed formula)

  3. Section 153 (2)

    omit

    section 151

    substitute

    section 150

  4. Section 153 (2), new note

    insert

    NoteConsent by residents to the amendment of recurrent charges under a village contract is not consent to spending stated in a proposed annual budget for the village (see s 162 (9)).

  5. ACAT orders—recurrent charges
    Section 154 (4)

    omit

  6. Proposed annual budget
    Section 159 (1) (a)

    substitute

    (a)on a day, at least 30 days before the beginning of the financial year to which the budget relates, agreed to by the operator and the residents; or

    (aa)if no day is agreed—at least 60 days before the beginning of the financial year to which the budget relates; or

  7. Residents’ consent to spending
    Section 162 (9)

    substitute

    (9)To remove any doubt, consent by residents to the amendment of recurrent charges under a village contract is not consent to spending stated in a proposed annual budget for the village under this section.

  8. Any surplus to be carried over
    Section 173 (1) (b)

    substitute

    (b)the residents consent to a proposal that the operator of the village distribute the whole or any part of the surplus to the operator and existing residents.

  9. New section 173 (2A)

    insert

    (2A)A proposal under subsection (1) (b) must provide for the distribution to be made to the operator and existing residents in the same proportion as their contribution to the surplus.

  10. Section 174A

    substitute

174AMeaning of resident—pt 8

For this part (except division 8.1A), resident, of a retirement village, includes a former occupant of the retirement village.

NoteResident is defined for the Act in the dictionary.

  1. New division 8.1A

    insert

Division 8.1A            Dispute resolution—disputes committee

175ADisputes committee

(1)The operator of a retirement village must establish a committee (a disputes committee) to resolve disputes that arise between residents and the operator.

(2)The disputes committee must consist of the following members:

(a)a member appointed by residents;

(b)a member appointed by the operator;

(c)a chair agreed upon by the members mentioned in paragraphs (a) and (b) to be independent.

175BDispute between operator and resident—notice to dispute committee

(1)If a resident or the operator of a retirement village claims that a dispute has arisen between the resident and the operator, the resident or operator may give written notice of the dispute to the disputes committee for the retirement village.

(2)To remove any doubt, a dispute mentioned in subsection (1) includes a dispute about whether the operator is discharging the operator’s obligations under section 99 (2) (b) (Operator to respect rights of residents).

Note The health services commissioner can deal with complaints about services for older people, including services provided by operators of retirement villages (see Human Rights Commission Act 2005, s 25).

175CDisputes committee—decision

(1)The disputes committee must, within 30 days after receiving notice of a dispute—

(a)resolve the dispute and tell the parties, in writing, of the decision; or

(b)if the committee decides that the dispute is unable to be resolved by the committee (including if the dispute is unsuitable to be considered by the committee) but is reasonably likely to be resolved by mediation—arrange for mediation of the dispute; or

(c)if the committee decides that the dispute is unable to be resolved by the committee and is not reasonably likely to be resolved by mediation—tell the parties that the dispute is unresolved.

(2)If the dispute is resolved by the disputes committee or by mediation, the parties must take all reasonable steps to give effect to the decision or agreement.

175DCosts of dispute resolution

(1)The costs of establishing and maintaining the dispute resolution process for a retirement village under this division must be funded from recurrent charges.

(2)Any other costs of a dispute taken to the disputes committee must be paid by the person incurring the costs.

  1. Division 8.2 heading

    substitute

Division 8.2               Dispute resolution—ACAT

  1. Section 176 heading

    substitute

  2. Dispute between operator and resident—application to ACAT

  3. Section 178

    substitute

  4. Informal resolution of dispute

    (1)Nothing in division 8.1A (Dispute resolution—disputes committee) or this division—

    (a)requires a resident or the operator of a retirement village to attempt to resolve a dispute under either or both of those divisions; or

    (b)prevents a resident and the operator of a retirement village from attempting to resolve a dispute in another way agreed between the parties.

    (2)Also, nothing in division 8.1A requires a resident or the operator of a retirement village to attempt to resolve a dispute under that division before applying to the ACAT for an order in relation to the dispute.

    (3)However, any term of a village contract that provides that the parties to the contract must attempt to resolve disputes between them by a process other than the process provided for under this Act is void.

    NoteThe ACT Civil and Administrative Tribunal Act 2008, s 35 provides for the ACAT to, before the hearing of an application, order mediation if the ACAT considers that the matter is suitable for mediation and is reasonably likely to be resolved by mediation.

  5. ACAT orders
    Section 181 (2), new note

    insert

    NoteThe ACT Civil and Administrative Tribunal Act 2008, s 35 provides for the ACAT, before the hearing of an application, to order mediation if the ACAT considers that the matter is suitable for mediation and is reasonably likely to be resolved by mediation.

  6. Recurrent charges for general services—registered interest holders
    New section 210 (4) and (5)

    insert

    (4)If the departure fee payable by a resident under the village contract is worked out in relation to the incoming resident’s ingoing contribution, for subsection (3) (b)—

    (a)the operator’s share is taken to be the percentage of the capital gain equal to the percentage of the incoming resident’s ingoing contribution in relation to which the departure fee is worked out; and

    (b)the former occupant’s share is taken to be the remaining percentage.

    (5)Subsection (4) applies despite any provision in the village contract about how the former occupant and the operator of the retirement village are to share in the capital gain.

    Example

    Lewis has moved from the retirement village operated by Henry into an aged care facility. Lewis’s village contract states that he is entitled to 100% of the capital gain. However, under his contract, Lewis is liable to pay a departure fee worked out as 25% of an incoming resident’s ingoing contribution. Therefore, Henry’s share of the capital gain is taken to be 25% and he is liable to pay 25% of the recurrent charges for general services, and Lewis is liable to pay the remaining 75%.

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

  7. Payments to former occupants who were not registered interest holders
    Section 238 (2)

    substitute

    (2)The operator of a retirement village must make any refund of the ingoing contribution needed to be made to the former occupant under the village contract not later than the earliest of the following:

    (a)the day for payment stated in the village contract;

    (b)the day for payment agreed between the operator and former occupant;

    (c)the day that is 14 days after the day the operator receives full payment under the residence contract of an incoming resident of the premises;

    (d)the day that is 14 days after the day the operator enters into a residential tenancy agreement with an incoming tenant of the premises;

    (e)the day that is 14 days after the day a person takes up residence in the premises with the operator’s consent;

    (f)if the ACAT ended the residence contract—the day that is 1 month after the day the contract ended;

    (g)if the former occupant delivered up vacant possession of the premises to the operator after receiving notice of the operator’s intention to apply to the ACAT for an order ending the residence contract—the day that is 1 month after the day vacant possession was delivered;

    (h)the day that is 6 months after the day the former occupant otherwise delivered up vacant possession of the premises to the operator.

    (2A)The operator commits an offence if the operator does not comply with subsection (2).

    Maximum penalty: 50 penalty units.

  8. Section 240

    substitute

  9. Payments to executors and administrators

    (1)This section applies if, because of the death of a former occupant of residential premises in a retirement village, a payment under this division must be made to the executor or administrator of the former occupant’s estate.

    (2)The operator of the village must sight a grant of administration in relation to the estate before making a payment.

    (3)However, if the operator is unable to find out the identity of the executor or administrator—

    (a)the operator may apply to the ACAT for an order directing the operator to deal with the money as stated in the order; and

    (b)the operator does not incur any liability in relation to the operator’s dealing with the money in accordance with the order.

    (4)In this section:

    grant of administration means—

    (a)grant of probate, or of letters of administration, under the Administration and Probate Act 1929; or

    (b)a grant of an order to collect and administer under that Act, section 88; or

    (c)an election to administer under that Act, section 87C; or

    (d)a corresponding grant or election under a law in force in a State or another Territory.

  10. Priority of interests
    Section 247 (c)

    substitute

    (c)any entitlement of a resident or former occupant of the retirement village arising from a village contract in relation to which a charge over the land has been created under this part and registered under the Land Titles Act 1925;

    (ca)any other entitlement of a resident or former occupant of the retirement village arising from a village contract in relation to which a charge over the land has been created under this part;

  11. New part 21

    insert

Part 21Transitional—Retirement Villages Amendment Act 2016

  1. Meaning of commencement day—pt 21

    In this part:

    commencement day means the day the Retirement Villages Amendment Act 2016, section 3 commences.

  2. Holding deposits paid before the commencement day

    Section 39 (3A) to (3D) (Repaying etc holding deposits and ingoing contributions) does not apply in relation to an amount paid by a prospective resident to the operator of a village before the commencement day.

  3. Existing villages rules to be consistent

    (1)This section applies if, on the commencement day, the village rules of a retirement village are inconsistent with this Act.

    NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

    (2)The operator of the retirement village must propose amendments to ensure that the rules are consistent with this Act.

    Note 1See s 83 for proposing amendments of the village rules. A proposed amendment is not made unless the residents consent to the amendment (see s 83 (3)).

    Note 2A village rule has no effect to the extent that it is inconsistent with this Act or another territory law (see s 79).

    Note 3Application may be made to the ACAT for an order about the legal validity of a village rule in force in the village (see s 86).

  4. Priority of interests created before commencement day

    (1)This section applies to an entitlement mentioned in section 247 (c) (Priority of interests) for which a charge was created before the commencement day.

    (2)The entitlement does not have priority over an entitlement mentioned in section 247 (ca).

  5. Expiry—pt 21

    This part expires 12 months after the commencement day.

    NoteTransitional provisions are kept in the Act for a limited time. A transitional provision is repealed on its expiry but continues to have effect after its repeal (see Legislation Act, s 88).

  6. Dictionary, definition of CPI

    omit

  7. Dictionary, new definition of disputes committee

    insert

    disputes committee—see section 175A.

  8. Dictionary, definition of resident, paragraph (b) (vi)

    substitute

    (vi)for part 8 (except division 8.1A)—see section 174A;

Part 3Retirement Villages Regulation 2013

  1. New section 6A

    in part 3, insert

6AGeneral inquiry document—Act, s 23 (2)

The general inquiry document must include a brief explanation of the following about the retirement village to which it relates:

(a)the residential premises, services and facilities of the retirement village;

(b)the main differences between a retirement village and a residential aged care facility and how the services of the retirement village differ from residential care within the meaning of the Aged Care Act 1997 (Cwlth), section 41‑3;

(c)if the village contract provides for departure fees—the departure fees;

(d)if the operator has a policy about access by residents to home care services—the policy.

NoteDeparture fees include deferred fees under the Fair Trading (Retirement Villages Industry) Code of Practice 1999 (NI1999-277).

  1. Section 7

    substitute

  2. Disclosure statement—Act, s 24 (3)

    (1)The disclosure statement must include the following information about the retirement village to which it relates:

    (a)details of particular residential premises in the retirement village, including fees and charges payable in relation to the premises;

    (b)the proximity of the village to services, for example, hospitals, shopping centres and public transport;

    NoteAn example is part of the regulation, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (c)information about whether the operator operates a residential aged care facility;

    (d)a statement of how the services of the retirement village differ from residential care within the meaning of the Aged Care Act 1997 (Cwlth), section 41‑3;

    (e)details about the ownership of the village, including whether a resident can own residential premises in the village;

    (f)if a village contract for the retirement village includes provisions for sharing a capital gain between the operator and a resident—details of the provisions;

    (g)information about the management of the village;

    (h)whether the village has a residents committee and, if so, information about the committee;

    (i)the financial management of the village, including details about the village’s income and expenditure;

    (j)information about the village’s safety, including information about its security and emergency systems;

    (k)the extent to which the operator has complied with legislation applying to the village, including the Act and the Planning and Development Act 2007;

    (l)village contracts the prospective resident will need to enter into to become a resident;

    (m)the village rules;

    (n)the facilities available to residents;

    (o)services provided by the operator;

    (p)costs associated with entering into a residence contract with the operator;

    (q)a statement that a former occupant of residential premises in the village is not liable to refurbish (or pay the cost of refurbishment of) the premises;

    (r)if the operator has a policy about access by residents to home care services—details of the policy;

    (s)information about any waiting list for the village and any waiting list fee payable;

    (t)a statement to the effect that, to the best of the operator’s knowledge, the information in the disclosure statement is true.

    (2)The disclosure statement must be signed and dated by the operator.

    (3)In this section:

    refurbishment—see the Act, section 218.

  3. Schedule 1, new section 1.1A

    in part 1.1, insert

1.1ATime for payment of ingoing contribution instalments

(1)This section applies if a village contract provides that the ingoing contribution must be paid in instalments at intervals stated in the contract.

(2)The village contract must state the day that the balance of the ingoing contribution is payable.

  1. Schedule 2, new section 2.11

    insert

2.11Current value of premises

A village contract must not include a provision that requires a former occupant to pay the difference between—

(a)any value determined for, or assigned to, the occupant’s residential premises (by the operator or otherwise) before a village contract with a prospective resident in relation to the premises is entered into; and

(b)the amount paid by a prospective resident under a village contract for the premises.

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 3 May 2016.

  2. Notification

    Notified under the Legislation Act on 16 June 2016.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Retirement Villages Amendment Bill 2016, which was passed by the Legislative Assembly on 7 June 2016.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2016

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