New South Wales: Retirement Villages Act 1999 (NSW)

Retirement Villages Act 1999 No 81 An Act to set out particular rights and obligations of residents and operators of retirement villages; to establish mechanisms for the resolution of certain disputes between residents and operators of retirement villages; to repeal the Retirement Villages Act 1989; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Retirement Villages Act 1999. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by this section. (2) Clause 14 of Schedule 4 commences on the date of assent to this Act. 3 Objects of Act The objects of this Act are— (a) to set out particular rights and obligations of residents and operators of retirement villages, and (b) to facilitate the disclosure of information to prospective residents of retirement villages, and (c) to require contracts between residents and operators of retirement villages to contain full details of the rights and obligations of the parties, and (d) to facilitate resident input, where desired by residents, into the management of retirement villages, and (e) to establish appropriate mechanisms for the resolution of certain disputes between residents and operators of retirement villages, and (f) to encourage the retirement village industry to adopt best practice management standards. 4 Definitions (1) In this Act— accounts of a retirement village means the accounts referred to in Division 6 of Part 7. annual management meeting means the meeting referred to in section 72A. approved annual budget means a budget taken to be an approved annual budget under section 116. association and association property have the same meanings as they have in the Community Land Management Act 2021. business day means a day that is not— (a) a Saturday or Sunday, or (b) a public holiday or bank holiday throughout the State. capital maintenance means works carried out for the purpose of repairing or maintaining an item of capital and includes works prescribed by the regulations as being capital maintenance, but does not include works that are prescribed by the regulations as not being capital maintenance. capital replacement means works carried out for the purpose of replacing an item of capital, but does not include capital maintenance. capital works fund means a fund established under section 99. close associate of an operator of a retirement village means— (a) if the operator is a natural person— (i) the spouse, de facto partner, parent, child or sibling of the operator, or (ii) the parent, child or sibling by marriage of the operator, or (iii) a body corporate of which the operator (or the operator's spouse, de facto partner, parent, child or sibling, or the operator's parent, child or sibling by marriage) is a director or secretary, and (b) if the operator 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 2001 of the Commonwealth), or (ii) the spouse, de facto partner, parent, child or sibling (or the parent, child or sibling by marriage) of such a director or secretary, or (iii) a related body corporate, and (c) in either case—an agent or employee of the operator. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. community land scheme means a scheme (other than a strata scheme) within the meaning of the Community Land Management Act 2021. company title scheme means a scheme under which a group of adjoining or adjacent premises (including residential premises) is owned or leased by a corporation each of whose shareholders has, by virtue of his or her shares, an exclusive right (under a lease or otherwise) to occupy one or more of the residential premises. condition report means a report referred to in section 38. Consumer Price Index means the Consumer Price Index (All Groups) for Sydney as published by the Australian Statistician. de facto relationship has the same meaning as it has in the Property (Relationships) Act 1984. departure fee—see section 156. development and development consent have the same meanings as they have in the Environmental Planning and Assessment Act 1979. disclosure statement means a statement referred to in section 18 (3A). exercise a function includes perform a duty. financial year of a retirement village is the period determined under section 91. former occupant of a retirement village means a resident, or a former resident, of the village— (a) who has permanently vacated any residential premises in the village, and (b) whose residence contract has been terminated (unless the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the residential premises concerned), and (c) who continues to have rights or liabilities under a village contract relating to the village, and includes, except in Part 10AA, the executor or administrator of the estate of such a person. function includes a power, authority or duty. general inquiry document means a document referred to in section 18 (2). general services means services provided, or made available, by or on behalf of the operator, to all residents of a retirement village, and includes such services as may be prescribed by the regulations for the purposes of this definition. Note— Examples of general services are management and administration services and gardening and general maintenance. holding deposit means money paid to the operator of a retirement village in consideration for not offering particular residential premises in the village to any other person pending a prospective resident's entering into a residence contract with the operator. ingoing contribution—see section 6. investigator means an investigator appointed under the Fair Trading Act 1987. item of capital means— (a) any building or structure in a retirement village, and (b) any plant, machinery or equipment used in the operation of the village, and (c) any part of the infrastructure of the village, and (d) any other item prescribed by the regulations, but does not include any item excluded from this definition by the regulations. licensed conveyancer means the holder of a licence in force under the Conveyancers Licensing Act 2003. operator of a retirement village means the person who manages or controls the retirement village, and includes— (a) a person (other than a resident or other person referred to in subsection (2)) who owns land in the village, and (b) any other person or class of persons prescribed by the regulations for the purposes of this definition, but does not include— (c) the relevant association of a community land scheme or the owners corporation of a strata scheme, or (d) the managing agent of such a scheme, or (e) any person or class of persons excluded from this definition by the regulations. optional services means optional services made available, by or on behalf of the operator, to individual residents of a retirement village, and includes such services as may be prescribed by the regulations for the purposes of this definition. Note— Examples of optional services are the provision of meals, laundry services and the cleaning of the residents' residential premises. proposed annual budget means a proposed annual budget referred to in section 112. prospective resident of a retirement village means a person who indicates (or on whose behalf it is indicated) to the operator of the village that he or she is (or might be) interested in becoming a resident of the village. proxy of a resident of a retirement village means a person appointed by the resident for the purpose of voting on the resident's behalf at meetings of residents. public holiday means a day appointed under the Public Holidays Act 2010 or another Act as a public holiday. recurrent charge means any amount (including rent) payable under a village contract, on a recurrent basis, by a resident of a retirement village. Note— Levies payable under a community land scheme or strata scheme are not recurrent charges (because they are not payable under a village contract). Register means— (a) in relation to land under the Real Property Act 1900—the Register kept under that Act, and (b) in relation to any other land—the General Register of Deeds kept under the Conveyancing Act 1919. relative of a person means— (a) the person's grandparent, parent, sibling or child, and (b) the person's grandparent, parent, sibling or child by marriage, and (c) the person's step-grandparent, step-parent, step-brother, step-sister or step-child, and (d) the person's aunts and uncles. rescission notice means a notice under section 32 or 33. residence contract means a contract that gives rise to a residence right. residence right of a person means the person's right to occupy residential premises in a retirement village, being a right arising from a contract— (a) under which the person purchased the residential premises, or (b) under which the person purchased shares entitling the person to occupy the residential premises, or (c) in the form of a lease, licence, arrangement or agreement of any kind, other than a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010— (i) that is entered into under Division 5 of Part 10, or (ii) that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement, or (d) in the form of any other contract of a kind prescribed by the regulations, or any other right of a kind prescribed by the regulations. Note— See also subsection (2). resident of a retirement village means a retired person who has a residence right in respect of residential premises in the village and includes the following persons (each of whom is taken also to have a residence right in respect of the residential premises concerned)— (a) the spouse of the retired person, if the spouse occupies the residential premises with the retired person, (b) if the retired person is in a de facto relationship—the other party to that relationship, if the other party occupies the residential premises with the retired person, (c) any person or class of persons prescribed by the regulations for the purpose of this definition, (d) in Parts 6, 7 and 8 and Division 5 of Part 10—a former occupant of the retirement village. residential aged care facility means any residential accommodation for retired people that includes— (a) meals and cleaning services, and (b) personal care or nursing care, or both, and (c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care. residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence. residential tenancy agreement has the same meaning as it has in the Residential Tenancies Act 2010. Residents Committee means a committee established under section 70. retired person means a person who has reached the age of 55 years or has retired from full-time employment. retirement village—see section 5. Secretary means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Customer Service. service contract means a contract under which a resident of a retirement village is provided with general services or optional services in the village. special resolution means a resolution described in Part 3 of Schedule 1. strata scheme has the same meaning as it has in the Strata Schemes Management Act 2015. tenant means a person who has the right to occupy residential premises under a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010— (a) that is entered into under Division 5 of Part 10, or (b) that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement. Note— A tenant is not a resident. Tribunal means the Civil and Administrative Tribunal. village contract means— (a) a residence contract, or (b) a service contract, or (c) a contract under which a resident of a retirement village obtains the right to use a garage or parking space, or a storage room, in the village, or (d) any other contract of a kind prescribed by the regulations for the purpose of this definition. Note— A residence contract, a service contract and any other village contract may be contained in a single document. village rules means the rules made and in force from time to time under Division 1 of Part 6. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) For the purposes of the definition of residence right in subsection (1), it does not matter that the person who obtains the right— (a) is a corporation, if the premises concerned are intended for use as a residence by a natural person, or (b) obtains it for the purpose of allowing another person to live in the residential premises (instead of the person who obtained the right), and in those cases, a retired person who lives in the premises with the consent of the corporation or of the person (as the case may be) is taken to have the residence right. Note— Subsection (2) would apply in the case, for example, of a person who buys a strata-titled unit in a retirement village for the person's parent to live in. (3) In this Act, a reference to the sale, the sale price, or a contract for the sale, of residential premises in a retirement village that were or are to be occupied under a company title scheme is taken to be a reference to the sale, the sale price, or a contract for the sale, of the residence right in respect of the premises. (4) It is sufficient compliance with the requirements of this Act if— (a) an agent of the operator of a retirement village exercises the functions of the operator under this Act or the regulations, and (b) any notice or other document required to be given to the operator under this Act or the regulations is given to an agent of the operator. (5) If there is more than one operator for a retirement village, it is sufficient compliance with the requirements of this Act if— (a) any of the operators exercises the functions of an operator under this Act or the regulations, and (b) any notice or other document required to be given to the operator under this Act or the regulations is given to any of the operators. (6) A reference in this Act to an operator of a retirement village extends to the operator for the time being. 5 Meaning of "retirement village" (1) For the purposes of this Act, a retirement village is a complex containing residential premises that are— (a) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons who have entered into village contracts with an operator of the complex, or (b) prescribed by the regulations for the purposes of this definition. (2) It does not matter that some residential premises in the complex may be occupied by employees of the operator or under residential tenancy agreements containing a term to the effect that this Act does not apply to the premises the subject of the agreement (instead of being occupied under residence contracts), or that those premises do not form part of the retirement village. (3) However, a retirement village does not include any of the following— (a) any building or any part of a building used or intended to be used for the provision of residential care, within the meaning of the Aged Care Act 1997 of the Commonwealth, by an approved provider under that Act, Note— Paragraph (a) excludes from the definition of retirement village buildings that are commonly known as Commonwealth-subsidised hostels and nursing homes. (b) a nursing home within the meaning of the Public Health Act 2010, (c) any building or part of a building intended to be used for the provision of respite care (within the meaning of Aged Care Act 1997 of the Commonwealth), (d) a community within the meaning of the Residential (Land Lease) Communities Act 2013, (e) any residential premises the subject of a residential tenancy agreement to which the NSW Aboriginal Housing Office or the New South Wales Land and Housing Corporation is a party, (f) a boarding-house or lodging house, (g) any accommodation provided in a complex for employees of the complex who are not residents of the retirement village, (h) any residential premises the subject of a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010 to which the operator of a retirement village is a party and that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement, (i) any other place or part of a place excluded from this definition by the regulations. 6 Meaning of "ingoing contribution" (1) For the purposes of this Act, an ingoing contribution is— (a) any money payable to the operator under a residence contract, or (b) any other money, regardless of how it is described, that is paid to the operator of a retirement village in consideration for, or in contemplation of, the person by whom (or on whose behalf) the payment was made becoming a resident of the village, regardless of whether the payment is made in a lump sum or by instalments. (2) Despite subsection (1), an ingoing contribution does not include any of the following— (a) a waiting list fee referred to in section 21, (b) recurrent charges, (c) if the resident is the registered proprietor of land, the owner of a lot in a strata scheme or the proprietor of a lot in a community land scheme on which the residential premises are located—the purchase price of the land or lot, (c1) if the person is the owner of shares in a company title scheme that give rise to a residence right in respect of the premises—the purchase price of the shares, (d) any other payment of a kind prescribed by the regulations. 7 Meaning of "registered interest holder" (1) For the purposes of this Act, a person is the registered interest holder with respect to residential premises in a retirement village if— (a) the person is— (i) the registered proprietor of land, or (ii) the owner of a lot in a strata scheme, or (iii) the proprietor of a lot in a community land scheme, within a retirement village and as such has a residence right in respect of residential premises within the retirement village, or (b) the person is the owner of shares in a company title scheme that give rise to a residence right in respect of residential premises within a retirement village, or (c) the person's residence contract is in the form of a registered long-term lease that includes a provision that entitles the person to at least 50% of any capital gain. (2) In this section— registered long-term lease means a lease registered under the Real Property Act 1900 that— (a) has a term of at least 50 years (including any option to renew), or (b) is for the life of the lessee. 7A Meaning of "capital gain" (1) In this Act, capital gain, in relation to a resident's entitlement under a residence contract or the sharing of a capital gain under a village contract between the operator and a resident, means any increase between the amount that the resident paid for the residence right for the relevant premises and the amount that the next resident pays for a residence right for the same premises, less any costs associated with the subsequent sale or lease of the premises. (2) Fees and charges payable under a village contract are not to be included in the calculation of the capital gain. 8 "Permanent vacation" of residential premises For the purposes of this Act, a person is taken to have permanently vacated residential premises in a retirement village when— (a) the person (or another person on behalf of the person) delivers up vacant possession of the person's residential premises to the operator of the village following the person's vacation of the premises, or (b) the executor or administrator of the person's estate delivers up vacant possession of the person's residential premises to the operator of the village following the person's death, or (c) the Tribunal makes an order under section 143 declaring that the person's residential premises were abandoned by the person (and the person is taken to have permanently vacated the premises on the day specified in the order), or (d) if the person is a registered interest holder in relation to residential premises or is taken to be a resident of the premises by the operation of section 4 (2)— (i) the person dies or moves out of the premises, or (ii) for the purposes of the payment of recurrent charges under section 152—the person moves out of the premises or the executor or administrator of the person's estate delivers up vacant possession of the person's residential premises to the operator of the retirement village following the person's death. 9 "Consent" of residents (1) Schedule 1 provides for the way in which the residents of a retirement village give their consent to a proposed measure or action relating to the village for the purposes of this Act or the regulations. (2) If a resident or the operator of a retirement village considers that— (a) the residents' consent to a particular measure or action has been obtained otherwise than as provided for by Schedule 1, or (b) the votes of the residents were inaccurately counted, the resident or operator concerned may apply to the Tribunal for an order as to the validity of the consent. (3) On an application made to it under this section, the Tribunal may make an order— (a) declaring the consent to have been validly obtained, or (b) voiding the purported consent and directing that the residents vote again on the proposed measure or action. 10 Notes Notes included in this Act are explanatory notes and do not form part of this Act. Part 2 Application of Act 11 Application of Act (1) This Act applies to all retirement villages (whether established before or after the commencement of this section) and so applies despite the terms of any contract, agreement, scheme or arrangement (whether made or entered into before or after the commencement of this section). (2) This Act extends to apply to and in respect of— (a) a retired person who continues to occupy residential premises in a former retirement village that was a retirement village when the retired person took up residence in the premises, and (b) a retired person who has a right to occupy residential premises in a former retirement village that was a retirement village when the right was obtained, and (c) a former resident of a former retirement village who continues to have rights or liabilities under the contract, agreement or arrangement under which he or she occupied (or had the right to occupy) the residential premises in the former retirement village when it was a retirement village, and (d) the person who is the other party to the contract, agreement or arrangement under which the retired person occupies or occupied (or has or had the right to occupy) the residential premises in the former retirement village, even though the former retirement village is no longer a retirement village. (3) However, this Act does not so apply in respect of any place or part of a place referred to in section 5 (3). (4) The regulations may prescribe other modifications to the application of this Act for the purposes of this section. (5) For the purposes of this Act— (a) a reference in this Act to a resident of a retirement village includes a reference to a person described in subsection (2) (a), (b) or (c), and (b) a reference in this Act to the operator of a retirement village includes a reference to the person referred to in subsection (2) (d). (6) In this section, former retirement village means a complex that was previously, but is no longer, a retirement village within the meaning of this Act (even if it ceased to be such a retirement village before the commencement of this Act). 12 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. 13 Effect of Act on other legislation (1) This Act is to be construed as being in addition to, and not in derogation of, any other law of the State, except as otherwise provided by this Act. (2) The Landlord and Tenant Act 1899, the Landlord and Tenant (Amendment) Act 1948 and Part 8 of the Residential Tenancies Act 2010 do not apply to or in respect of residential premises the subject of a residence contract under this Act. Part 3 Representations and information about retirement villages 14 Development consent If development consent is required before development for the purposes of a retirement village can be carried out, a person must not— (a) advertise, or otherwise promote, the proposed village, or (b) advertise the sale of residential premises (or the right to occupy residential premises) in the proposed village, before the consent has been obtained. Maximum penalty—100 penalty units. 15 Approvals for certain facilities The operator of a retirement village (or a person intending to carry out development for the purposes of such a village) must not advertise or otherwise represent that a residential aged care facility is (or will be) associated with the village or the proposed village unless all authorisations required by law for the residential aged care facility concerned have been obtained. Maximum penalty—100 penalty units. 16 Exceptions to prohibitions on advertising A person is not guilty of an offence under section 14 or 15 merely because the person— (a) carries out market surveys in relation to a proposed retirement village before the relevant development consent is obtained, or (b) carries out market surveys in relation to a proposed residential aged care facility in connection with a retirement village before obtaining the requisite authorisations, or (c) gives public notice of, or otherwise advertises, a development application relating to a proposed retirement village or a proposed residential aged care facility in accordance with the requirements of the Environmental Planning and Assessment Act 1979. 17 Representations about retirement villages (1) A person who manages or controls a complex containing residential premises must not knowingly represent that the complex is a retirement village unless the complex is a retirement village within the meaning of this Act. Maximum penalty—50 penalty units. (2) The operator of a retirement village must not make a representation to a prospective resident knowing that it is inconsistent with the information contained in the disclosure statement provided to the prospective resident. Maximum penalty—50 penalty units. (3) The operator of a retirement village must not knowingly represent to a prospective resident that a particular service or facility is provided to or available at the village or to the residents, or is associated with the village, unless the service or facility is so provided or made available or associated. Maximum penalty—50 penalty units. (4) If the operator of a retirement village represents to a prospective resident of the village that a service or facility is to be provided to or made available by the operator at the village or to the residents in the future, the operator must ensure that a village contract entered into by that person and the operator specifies the service or facility concerned and the date by which it is to be provided or made available. Maximum penalty—50 penalty units. (5) The resident concerned may apply to the Tribunal for (and the Tribunal may make) an order that the operator pay compensation to the resident if the service or facility concerned is not provided or made available— (a) by the date specified in the village contract, or (b) if the village contract (in contravention of subclause (4)) does not specify the date—within a reasonable time. (5A) The operator of a retirement village must not publish or distribute written promotional material that makes a representation in relation to the retirement village of a kind prescribed by the regulations. Maximum penalty—50 penalty units. (6) For the purposes of this section, a representation made by an agent or employee of the operator of a retirement village is taken to be a representation of the operator unless the operator establishes, to the satisfaction of the Tribunal or court, that, in making the representation, the agent or employee was acting otherwise than in his or her capacity as the operator's agent or employee. Note— Any advertising, and promotional and sales material, relating to a retirement village must also comply with the Fair Trading Act 1987 and the Competition and Consumer Act 2010 of the Commonwealth. 18 General inquiry document and disclosure statement concerning retirement village (1) The operator of a retirement village must provide a person with a general inquiry document within 14 days after becoming aware that the person is a prospective resident or is acting on behalf of a prospective resident. (2) A general inquiry document is to give a basic explanation of the residential premises, services and facilities that are available within a retirement village, and must— (a) be in the form prescribed by the regulations, and (b) contain the information prescribed by the regulations. (3) The operator of a retirement village must provide a disclosure statement to a prospective resident, or person acting on behalf of a prospective resident, who— (a) requests a copy, or (b) expresses an interest in particular premises within the retirement village, within 14 days after the request is received or the expression of interest is made. Maximum penalty—20 penalty units. (3A) A disclosure statement is to give specific details of particular residential premises in a retirement village (including details of the fees and charges that will be payable by the resident of the premises) and must— (a) be in the form prescribed by the regulations, and (b) contain the information prescribed by the regulations, and (c) be signed and dated by the operator of the retirement village. (3B) The regulations may prescribe different forms for, or information to be contained in, general inquiry documents or disclosure statements in respect of different classes of general inquiry documents or disclosure statements or different circumstances in which they are provided. (4) The operator of the retirement village must annex a copy of the disclosure statement (or the disclosure statement as amended in writing and endorsed with the consent of the other party to the village contract) to the first village contract that the other party enters into with the operator. Maximum penalty—10 penalty units. (5) The operator of a retirement village must not enter into a village contract with a person earlier than 14 days after the person (or another person acting on behalf of that person) has been provided with a disclosure statement by the operator. Maximum penalty—100 penalty units. (6) If the operator of a retirement village fails to provide a general inquiry document or disclosure statement in accordance with this section, the prospective resident, or person acting on behalf of the prospective resident, to whom the document or statement should have been provided may apply to the Tribunal for (and the Tribunal may make) an order requiring the operator to provide the general inquiry document or disclosure statement. 19 Information to be provided to prospective residents (1) The Secretary may approve the content and form of information that the operator of a retirement village must provide to a prospective resident of the retirement village. (2) An operator of a retirement village must not, without reasonable excuse, fail to provide the approved information in the approved form at or before the time the general inquiry document is provided to the prospective resident or person acting on behalf of the prospective resident. Maximum penalty—10 penalty units. (3) Without limiting subsection (1), the approved information may relate to any of the following— (a) the retirement village industry generally, (b) the rights and responsibilities of residents of retirement villages, (c) living within a strata scheme. 20 Copies of certain documents to be available (1) The operator of a retirement village must have available at the village or at a place of business in New South Wales, for inspection at all reasonable times by a resident or prospective resident or a person acting on behalf of a resident or prospective resident, copies of the following— (a) a site plan for the village, (b) plans showing the location, floor plan and significant dimensions of residential premises available in the village, (c) the proposed annual budgets (if any) and the approved annual budgets for— (i) each of the last 3 financial years of the village, and (ii) the current financial year, and (iii) the next financial year (if budgets in respect of that year are available), (d) the accounts for the village, audited if so required under Division 6 of Part 7, for the last 3 financial years (excluding, during the first 4 months of a financial year, the immediately preceding financial year if the accounts for that year are not available), (e) examples of all village contracts that an incoming resident may be required to enter into, (f) the trust deed for any trust fund into which money paid by the residents is deposited, (g) the village rules, (g1) the asset management plan for the village referred to in section 101A, (h) the terms of the development consent, if any, for the village, but only if— (i) construction of the village is not complete, or (ii) it is a condition of the development consent that a particular service or facility be provided for the life of the village, (i) if there is a capital works fund established for the village—statements of the balance in the fund as at the end of— (i) each of the last 3 financial years of the village, and (ii) the most recent quarter, (j) if the operator is required to provide the residents with quarterly accounts—the most recent quarterly accounts of the income and expenditure of the village, (k) such other documents relating to the village, and to retirement villages generally, as the regulations may prescribe. Maximum penalty—50 penalty units. Note— Section 197 prohibits an operator of a retirement village from charging for the provision of these documents. (2) If the village has been in operation for 3 years or less, the documents referred to in subsection (1) (c), (d) and (i) must relate to each financial year that the village has been in operation. (3) The operator must give a copy of any document referred to in subsection (1) (a)–(j) to any resident or prospective resident (or a person acting on behalf of a resident or prospective resident) who requests it. The operator must give the document no later than 7 days after receiving the request. Maximum penalty—50 penalty units. (4) If the operator of a retirement village— (a) fails to have the documents referred to in subsection (1) available for inspection as required by that subsection, or (b) fails to comply with a request under subsection (3), a resident or prospective resident (or a person acting on behalf of a resident or prospective resident) who wishes to inspect the documents, or who made the request under subsection (3) (as the case may be), may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to comply with the relevant requirement of this section. Part 4 Entry into retirement villages 21 Waiting list fee (1) The operator of a retirement village must not require or accept any waiting list fee unless— (a) the fee does not exceed $200 (or such other amount as may be prescribed by the regulations), and (b) the operator has a written policy setting out the way in which the waiting list operates, and (c) the operator gives to the person who pays the fee, at the time payment is made, a copy of the policy and a receipt for the payment. Maximum penalty—100 penalty units. (2) If a waiting list fee is paid by or on behalf of any person, the operator must deduct the amount of the fee from any ingoing contribution payable by the person concerned (unless the fee is refunded in accordance with this section). If no ingoing contribution is payable, the waiting list fee must be refunded no later than at the time the person concerned first enters into a village contract with the operator. (3) A waiting list fee must be refunded in full no later than 14 days after the operator receives a written request for a refund from the person (or from the executor or administrator of the person's estate) by or on whose behalf the fee was paid. (4) If a waiting list fee is not refunded as required by this section, the person to whom the refund is payable may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to refund the fee. (5) In this section, waiting list fee means any payment made to the operator other than— (a) an ingoing contribution, or (b) a holding deposit, or (c) a payment under a village contract. 22 Holding deposit (1) The operator of a retirement village must not require or accept a holding deposit in respect of any residential premises in the village that are occupied by a resident. Maximum penalty—50 penalty units. (2) Subsection (1) does not apply if the resident has given the operator written notice of intention to vacate the premises. 23 Deposits to be kept in trust (1) (Repealed) (2) The operator of a retirement village must ensure that any money paid to the operator— (a) as a holding deposit, or (b) as a deposit under a village contract, is held in trust in accordance with this section. Maximum penalty—50 penalty units. (3) The money may be held— (a) in an Australian legal practitioner's trust account, or (b) in the trust account of a person licensed as a real estate agent under the Property and Stock Agents Act 2002, or (c) in a licensed conveyancer's trust account, or (d) by a trustee company (within the meaning of the Trustee Companies Act 1964), or (e) in such other manner as the regulations may prescribe. (3A) Subsection (3) does not apply to or in respect of money held by an operator of a retirement village if the operator is— (a) a body constituted or established by an Act, or (b) a body constituted or established for any benevolent, philanthropic or patriotic purpose. (4) Money paid to the operator as a holding deposit or ingoing contribution is to be held in trust until— (a) the prospective resident enters into a residence contract with the operator (whether in relation to the premises concerned or to other premises in the same village or in another village), in which case the money may, if both parties so agree, be taken to form part of the deposit under the contract, or (b) the operator is notified in writing that the prospective resident— (i) does not intend to enter into such a contract, or (ii) has died, in which case the money is to be refunded in full (to the prospective resident or to the executor or administrator of the prospective resident's estate, as the case may be) no later than 14 days after the operator receives the notification. (5) If the operator of a retirement village does not make any refund required by subsection (4), the prospective resident concerned (or the executor or administrator of his or her estate) may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the repayment. (6) Money paid to the operator as a deposit under a village contract is to be held in trust until final payment is made under the contract. (7) Subsections (2) (b) and (6) do not apply in respect of a contract for the sale of residential premises if the contract provides for the manner in which the deposit is to be held. Part 5 Village contracts Division 1 General 24 Resident to enter village contract (1) The operator of a retirement village must not permit a prospective resident of the village to occupy residential premises in the village before the prospective resident enters into at least one of the following contracts with the operator in writing— (a) a residence contract, (b) a service contract. Maximum penalty—50 penalty units. Note— A residence contract, a service contract and any other village contract may be contained in a single document. (2) However, a prospective resident may occupy residential premises in the village without entering into a contract referred to in subsection (1) if— (a) the prospective resident occupies the premises with a person who has entered into such a contract with the operator, or (b) the prospective resident and the operator enter into a residential tenancy agreement to which this Act does not apply in relation to the premises. (3) If the operator contravenes subsection (1), then (despite the provisions of Part 10)— (a) the former occupant (if any) of the residential premises concerned has no liability to pay any recurrent charges or departure fees relating to the premises in respect of any period after the date on which the prospective resident occupies the premises, and (b) the operator must, no later than one month after that date, make any refund of the former occupant's ingoing contribution, and make any other payment that is required, under a village contract, to be made to the former occupant. (4) If a refund, in whole or in part, is not made to a former occupant within the period required by subsection (3) (b)— (a) the former occupant may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment, and (b) interest is payable, at the rate prescribed by the regulations, on and from the date that the refund becomes overdue. 24A Retirement village land to be recorded on Register (1) The operator of a retirement village must, in accordance with this section, notify the Registrar-General in writing that the land comprising the retirement village (or land that is part of the retirement village) is used as a retirement village. Maximum penalty—100 penalty units. (2) Any such notice is to be provided— (a) in the case of land that, immediately before the commencement of this section, was used as a retirement village—within 3 months after the commencement of this section, or (b) in any other case—before entering into a residence contract with respect to residential premises on that land. (3) Nothing in this section requires the operator of a retirement village to notify the Registrar-General before entering into a residence contract regarding residential premises on land that is already the subject of a recording under this section. (4) Form of notice for recording The notice referred to in subsection (1) must be— (a) in the form approved by the Registrar-General, and (b) in the case of a notice relating to land under the Real Property Act 1900—accompanied by the fee prescribed under that Act, and (c) in the case of a notice relating to land not under the Real Property Act 1900—accompanied by the fee prescribed under the Conveyancing Act 1919. (5) Registrar-General to record retirement village on Register On receipt of a notice under subsection (1), the Registrar-General is to make a recording on the relevant Register indicating that the land to which the notice relates comprises, or is part of, a retirement village. (6) Operator to notify of recording being made As soon as practicable after the Registrar-General makes a recording under this section, the operator of the retirement village is to notify, in writing— (a) the holder of any other registered interest in the land to which the recording relates, and (b) the Residents Committee (if any) of the retirement village, that the recording has been made. (7) Operator to notify Registrar-General of certain changes The operator of a retirement village must notify the Registrar-General if any of the information contained in a notice lodged under subsection (1) ceases to be accurate by submitting a new notice under that subsection. (8) Use of recording on Register Information that is recorded under this section may be used to establish a publicly available list of retirement villages. (9) Application to remove recording A person may apply in writing to the Registrar-General for the removal of a recording made under this section. (10) Form of application for removal of recording The application referred to in subsection (9) must be— (a) in the form approved by the Registrar-General, and (b) in the case of an application relating to land under the Real Property Act 1900—accompanied by the fee prescribed under that Act, and (c) in the case of an application relating to land not under the Real Property Act 1900—accompanied by the fee prescribed under the Conveyancing Act 1919. (11) Registrar-General may remove recording If the Registrar-General receives an application referred to in subsection (9), the Registrar-General may, if satisfied that— (a) there are no residential premises located on the land to which the recording relates that are the subject of a village contract, and (b) there are no amounts outstanding that are payable under a village contract relating to residential premises located on the land to which the recording relates, remove the recording to which the application relates. 25 Inconsistency between village contract and disclosure statement (1) To the extent that any term in a village contract is inconsistent, to the detriment of the resident, with the information contained in the disclosure statement provided to the resident concerned, the contract is to be construed (as far as is practicable) as if it contained the information in the statement instead of the inconsistent term, unless the inconsistent term is a term of a standard contract prescribed under section 43. (2) If there is a dispute between a resident of a retirement village and the operator of the village as to whether there is an inconsistency referred to in subsection (1), the resident concerned may apply to the Tribunal for (and the Tribunal may make) an order determining the dispute. (3) Any such order is to specify the way in which the contract concerned is to be construed. 26 Village contracts to be in writing Despite the provisions of any other Act or law, a village contract entered into after the commencement of this section is not enforceable by the operator of a retirement village against a resident of the village unless the contract is in writing. 27 Operator to allow time for examination of village contracts The operator of a retirement village must not enter into a village contract with a person earlier than 14 days after the person (or another person acting on behalf of that person) has been provided with a copy of each village contract that the person is to enter into. Maximum penalty—100 penalty units. 28 No restriction on right to seek independent advice (1) An operator of a retirement village must not restrict any person's right to seek independent advice before entering into a village contract with the operator. Maximum penalty—10 penalty units. (2) An operator of a retirement village must not require a resident or a prospective resident to use the services of an Australian legal practitioner, licensed conveyancer or other adviser nominated by the operator. Maximum penalty—10 penalty units. (3) If a resident or a prospective resident is required to use the services of an Australian legal practitioner, licensed conveyancer or other adviser in contravention of this section, the operator of the village concerned is liable to pay to the resident or prospective resident the amount of any fees paid by the resident or prospective resident to that Australian legal practitioner, licensed conveyancer or other adviser for those services. (4) If the operator of a retirement village does not, on request, pay the amount due to a resident or prospective resident under subsection (3), the resident or prospective resident concerned (or the executor or administrator of his or her estate) may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment. 29 Variation or replacement of village contracts (1) A purported variation of a village contract, and a purported termination of a village contract and entry into a new village contract by the same parties in relation to the same residential premises, is of no effect (and the contract continues as in force before the purported variation or termination) unless the resident who is a party to the contract obtains a written certificate in accordance with this section. (1A) An operator must not purport— (a) to vary a village contract, or (b) to terminate a village contract and enter into a new village contract in relation to the same residential premises, unless the resident who is a party to the contract has obtained a certificate in accordance with this section. Maximum penalty—100 penalty units. (2) The certificate— (a) must be signed by an Australian legal practitioner of the resident's choosing, and (b) must contain a statement to the effect that— (i) the Australian legal practitioner explained to the resident the effect of the proposed variation of the contract (or the proposed new contract, as the case may be), and (ii) the resident appeared to understand the explanation and to consent to the variation (or to the new contract). (3) Sections 27 and 28 apply in respect of a variation of contract as if the variation were a new contract. (4) This section does not apply if the resident requested the variation or new contract. (5) A resident is not obliged to agree to a variation or replacement of his or her village contract because of the enactment of this Act (or for any other reason). 30 Costs of obtaining certificate (1) The reasonable costs of obtaining a certificate required by section 29 are payable by the operator of the retirement village as if the operator, and not the resident, were the client of the Australian legal practitioner concerned. (2) The resident must provide the operator with a copy of any account presented to the resident in respect of those costs and the operator is not required to make any payment in respect of the costs until the resident has done so. (3) If the operator does not pay all the costs within 28 days after being provided with a copy of the relevant account, the resident (or the executor or administrator of his or her estate) may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment. (4) On application to it under this section, the Tribunal— (a) may make the order sought, or (b) may order the operator and the resident to pay the costs in such proportion as the Tribunal considers just in the circumstances. 31 Costs of preparation of village contracts (1) Legal and other expenses incurred by the operator of a retirement village in connection with the preparation of a village contract are payable by the operator and the resident concerned in equal shares (except as provided by section 30). (2) The operator must provide the resident with a copy of any account presented to the operator in respect of those expenses and the resident is not required to make any such payment until the operator has done so. (3) The regulations may prescribe a maximum amount payable by a resident for legal and other expenses incurred by the operator in connection with the preparation of a village contract. (4) If the regulations prescribe such a maximum amount, any difference between the resident's share of the amount incurred by the operator and the maximum amount prescribed is payable by the operator. (5) If a residence contract is in the form of a lease— (a) duty (if any) payable on the lease, and (b) the registration fee (if the lease is to be registered under the Real Property Act 1900), is payable by the resident. (6) This section does not apply in respect of a contract for the sale of residential premises that are subject to a community land scheme, company title scheme or strata scheme. 32 Cooling-off period (1) A resident or prospective resident may, within the period (the cooling-off period) of 7 business days after entering into a village contract, serve a written notice on— (a) the other party to the contract, and (b) the operator of the retirement village concerned (if the operator is not the other party), to the effect that the resident or prospective resident rescinds the contract. (2) For this purpose, a contract is taken to have been entered into at midnight on the day on which a copy of the contract signed by the resident is given to the other party to the contract. The cooling-off period ends at midnight 7 business days after that day. (3) A contract must not be completed until after the cooling-off period has expired. (4) The cooling-off period under a residence contract is waived if the resident commences to live in the residential premises to which the contract relates. (5) This provision has effect despite the provisions of any other Act or law. 33 Rescission of village contract on grounds relating to disclosure statement (1) If a disclosure statement is not provided in accordance with this Act, or if the information in it is false or misleading in a material particular, the person to whom (or on whose behalf) it was provided may, within 3 months after occupying residential premises in the village, apply to the Tribunal for an order allowing the person to rescind any village contract to which the person and the operator of the village are parties. (2) The Tribunal is not to make an order referred to in subsection (1) if it is of the opinion that— (a) the disclosure statement was provided in accordance with this Act, or (b) the information in the disclosure statement is not false or misleading in a material particular, or (c) the operator acted reasonably and honestly and ought to be excused for the failure to provide accurate information, or to provide the disclosure statement in accordance with this Act, or (d) the person to whom (or on whose behalf) the disclosure statement was provided is in substantially as good a position as he or she would have been had the failure not occurred. (3) If the Tribunal makes the order sought— (a) it may also make an order as to compensation payable to the person by the operator of the village, and (b) the person may, by notice in writing to the operator, rescind the contract. 34 Effect of rescission notice (1) A rescission notice takes effect on service of the notice. (2) A village contract that is rescinded under this Part is taken to be void. (3) However, subsection (2) does not affect the rights and obligations set out in sections 35–37. 35 Consequences of resident's rescission of service contract (1) If a resident of a retirement village serves a rescission notice in relation to the resident's service contract but does not serve a rescission notice in relation to the residence contract, the resident and the operator of the village are to attempt to renegotiate the service contract. (2) If the operator of the village and the resident cannot agree on the terms of the new contract, the operator or the resident may apply to the Tribunal for an order setting out the terms of the new contract. (3) On application to it under this section, the Tribunal may— (a) make the order sought, and (b) if the Tribunal considers it advisable, order the operator and the resident to enter into a new contract in the terms set out in the order. (4) Section 27 does not apply to a new service contract arising out of an order of the Tribunal under this section. 36 Consequences of resident's rescission of residence contract (1) A rescission notice in relation to a residence contract is taken also to apply to the service contract and any other village contract entered into by the resident concerned, and each of those contracts is taken to be void. (2) As soon as is reasonably practicable (and no later than one month) after a rescission notice that applies to a residence contract takes effect— (a) the rescinding party is to be repaid all money paid by or on behalf of the party under the residence contract, and (b) if the residence contract related to residential premises that are subject to a community land scheme, company title scheme or strata scheme and was rescinded under section 33, the rescinding party must— (i) execute such instruments as may be necessary to enable re-registration of the shares (in the case of premises that are subject to a company title scheme) or title (in any other case) in the name of the operator under the rescinded contract, and (ii) deliver up to the operator the relevant share documents. (3) The Tribunal may do either or both of the following— (a) on the application of the rescinding party—order the other party to the contract to comply with subsection (2) (a), (b) on the application of the operator—order the rescinding party to comply with subsection (2) (b). (4) Any fees or costs associated with a rescission during the cooling-off period are to be paid by the party incurring them. (5) Any fees or costs associated with a rescission at any other time (including registration fees) are payable by the operator, and the Tribunal may, on the application of the rescinding party, order the operator to make the relevant payment. (6) The rescinding party is not liable to make any payment to the operator in relation to the rescinded contract unless ordered to do so by the Tribunal. (7) Any order under subsection (5) is subject, in the case of a rescinding party to whom subsection (2) (b) applies, to his or her compliance with that paragraph. (8) Either party to a rescinded residence contract is entitled to make a claim to the Tribunal for— (a) such compensation, adjustment or accounting as is just and equitable between the parties if the rescinding party has received the benefit of possession of the residential premises concerned, or (b) the payment of damages, costs, or expenses arising out of a breach of any term, condition or warranty contained or implied in the contract (other than a term, condition or warranty referred to in section 52A of the Conveyancing Act 1919), but not so as to affect rights and obligations under this section. Note— Section 52A of the Conveyancing Act 1919 provides (among other things) that a vendor under a contract for the sale of land is taken to have included in the contract such terms, conditions and warranties as may be prescribed. The remedies and relief available to a purchaser under such a contract (and the penalties that may be incurred by a vendor) for a breach of a prescribed term, condition or warranty are specified in the regulations made under that Act. (9) This section has effect despite the provisions of Division 8 of Part 4 of the Conveyancing Act 1919. Note— Division 8 of Part 4 of the Conveyancing Act 1919 provides (among other things) for a cooling off period in relation to a contract for the sale of residential property (within the meaning of that Division) and allows such a contract to be rescinded during that period. However, the rights and obligations of the parties under that Division differ from those under this section. Division 8 of Part 4 does not allow rescission after completion of the contract, and the purchaser under the rescinded contract forfeits 0.25% of the purchase price to the vendor. See section 50 of the Duties Act 1997 for refund of duty paid on a rescinded agreement for the sale or transfer of dutiable property. 37 Consequence of resident's rescission of other village contract (1) As soon as is reasonably practicable (and no later than one month) after a rescission notice that applies to a village contract other than a residence contract or a service contract takes effect, the rescinding party is to be repaid all money paid by or on behalf of the party under the rescinded contract.