Queensland: Retirement Villages Act 1999 (Qld)

Retirement Villages Act 1999 An Act to provide for the establishment and operation of retirement villages, and for other purposes Part 1 Preliminary Division 1 Introduction 1 Short title This Act may be cited as the Retirement Villages Act 1999. 2 Commencement This Act commences on a day to be fixed by proclamation. Division 2 Objects of Act and relationship with FTI Act 3 Objects (1) The main objects of this Act are— (a) to promote consumer protection and fair trading practices in operating retirement villages and in supplying services to residents by— (i) declaring particular rights and obligations of residents and scheme operators; and (ii) facilitating the disclosure of information to prospective residents of a retirement village to ensure the rights and obligations of the residents and scheme operator may be easily understood; and (b) to encourage the continued growth and viability of the retirement village industry in the State. (2) The following are also objects of this Act— (a) to maintain public confidence in the retirement village industry by enhancing— (i) the financial transparency of the operations of retirement villages; and (ii) the accountability of scheme operators; (b) to encourage the adoption of best practice standards by the retirement village industry; (c) to provide a clear regulatory framework to ensure certainty for the retirement village industry in planning for future expansion; (d) to facilitate participation by residents, who want to be involved, in the affairs of retirement villages; (e) to provide for processes for resolving disputes between residents and scheme operators. 3A Relationship with Fair Trading Inspectors Act 2014 (1) The Fair Trading Inspectors Act 2014 (the FTI Act) enacts common provisions for this Act and particular other Acts about fair trading. (2) Unless this Act otherwise provides in relation to the FTI Act, the powers that an inspector has under that Act are in addition to and do not limit any powers the inspector may have under this Act. (3) In this section— inspector means a person who holds office under the FTI Act as an inspector for this Act. Note— See also the modifying provision for this Act stated in the FTI Act, section 8. Division 3 Interpretation and basic concepts 4 Definitions The dictionary in the schedule defines particular words used in this Act. 5 What is a retirement village (1) A retirement village is premises where older members of the community or retired persons reside, or are to reside, in independent living units or serviced units, under a retirement village scheme. (2) In this section— premises does not include a site within the meaning of the Manufactured Homes (Residential Parks) Act 2003. 6 What is retirement village land Land is retirement village land if the land is used, or to be used, for a retirement village and, for land included in a community titles scheme, includes the lots and common property into which the land is subdivided. 7 What is a retirement village scheme A retirement village scheme is a scheme under which a person— (a) enters into a residence contract; and (b) in consideration for paying an ingoing contribution under the residence contract, acquires personally or for someone else, a right to reside in a retirement village, however the right accrues; and (c) on payment of the relevant charge, acquires personally or for someone else, a right to receive 1 or more services in relation to the retirement village. 8 Who is a retirement village scheme operator A person is a retirement village scheme operator if the person, alone or with someone else, controls the scheme's operation or purports to control the scheme's operation. 9 Who is a resident A resident of a retirement village is a person who has a right to reside in the retirement village and a right to receive 1 or more services in relation to the retirement village under a residence contract. 10 What is a residence contract (1) A residence contract is 1 or more written contracts, other than an excluded contract, about residence in a retirement village entered into between a person and the scheme operator. (2) A residence contract includes any other contract (an ancillary contract) between the person and the scheme operator if the ancillary contract is dependent on, or arises out of, the making of the residence contract or another ancillary contract. (3) Without limiting the interests that a residence contract may be based on, a residence contract may be based on a freehold interest in an accommodation unit. (4) To be a residence contract, a contract must— (a) either— (i) purport to give a person, or give rise to a person having, an exclusive right to reside in an accommodation unit in the retirement village; or (ii) provide for, or give rise to, obligations on a person in relation to the person's or someone else's residence in the retirement village; and (b) purport to give a person, or give rise to a person having, a right in common with other residents in the retirement village, to use and enjoy the retirement village's communal facilities; and (c) contain or incorporate— (i) a service agreement or an agreement to enter into a service agreement that includes a copy of the service agreement; and (ii) if the contract includes an ancillary agreement that is not signed contemporaneously with the contract, an agreement to enter into the ancillary agreement that includes a copy of the ancillary agreement; and (d) restrict the way in which, or the persons to whom— (i) the right to reside in the retirement village may be disposed of during the resident's lifetime; or (ii) if the contract is based on a freehold interest in an accommodation unit—the resident's freehold property may be disposed of during the resident's lifetime. 11 What is an existing residence contract An existing residence contract is a residence contract existing immediately before the commencement of this Act. 11A What is freehold property of a resident or former resident (1) A freehold interest in an accommodation unit is a resident's freehold property if— (a) the freehold interest is— (i) held by the resident; or (ii) held by another person but not held directly or indirectly by the scheme operator; and Examples for subparagraph (ii)— • a freehold interest in an accommodation unit held by— • the trustee of a trust in which the resident holds an interest; or • a corporation in which the resident holds shares; or • the resident's child or another family member (b) the resident has a right to reside in the accommodation unit. (2) A freehold interest in an accommodation unit is a former resident's freehold property if— (a) the freehold interest is— (i) held by the former resident; or (ii) held by another person but not held directly or indirectly by the scheme operator; and (b) the former resident had a right to reside in the accommodation unit that has been terminated under this Act. 12 What is a service agreement (1) A service agreement is an agreement made between a person and a scheme operator under which general services or personal services are to be supplied for or to the person or someone else when the person or other person becomes a resident of a retirement village. (2) A service agreement may be in a residence contract. 13 [Repealed] 14 What is an ingoing contribution (1) An ingoing contribution is the amount payable by a person under a residence contract to secure the person's, or someone else's, right to reside in a retirement village, but does not include a recurrent payment for rent, fees or charges. (2) It is immaterial whether— (a) the right to reside in the village is enforceable or not; or (b) the payment alone secures the right, or something else is also required to secure it. 15 What is an exit fee (1) An exit fee is the amount that a resident may be liable to pay to, or credit the account of, a scheme operator under a residence contract arising from— (a) the resident ceasing to reside in the accommodation unit to which the contract relates; or (b) the settlement of the sale of the right to reside in the accommodation unit. (2) The exit fee for a residence contract, including an existing residence contract, that a resident may be liable to pay to, or credit the account of, the scheme operator is to be calculated as at— (a) the day the resident ceases to reside in the accommodation unit to which the residence contract relates; or (b) if a relative of the resident resides in the accommodation unit under section 70B(2)—the sooner of the following days— (i) the day the relative vacates the accommodation unit; (ii) the day that is 3 months after the resident's right to reside in the accommodation unit under the residence contract is terminated under this Act. Notes— 1 Subsection (2) states the day at which the exit fee for a residence contract is to be worked out, and not the method of working out the exit fee. 2 Section 53A states how to work out the exit fee for a residence contract that is worked out under the contract having regard to the length of time the resident has resided in the unit. (3) Subsection (2) applies despite anything to the contrary in an existing residence contract. (4) In this section, a reference to a resident includes a reference to a person, other than a scheme operator, who enters into a residence contract for the purpose of giving someone else a right to reside in the retirement village. Example for subsection (4)— Mr Smith enters into a residence contract with a scheme operator which gives Mr Smith's mother the right to reside in the retirement village. For this section, a reference to a resident includes not only Mr Smith's mother who has a right to reside in the retirement village but also Mr Smith. 16 What is an exit entitlement (1) An exit entitlement is the amount that a scheme operator may be liable to pay to, or credit the account of, a former resident under a residence contract arising from— (a) the resident ceasing to reside in the accommodation unit to which the contract relates; or (b) the settlement of the sale of the right to reside in the accommodation unit. (2) In this section, a reference to a former resident includes a reference to a person, other than a scheme operator, who enters into a residence contract for the purpose of giving someone else a right to reside in the retirement village. 17 What is a capital replacement fund A capital replacement fund is a fund established under section 91 for replacing the retirement village's capital items. 18 [Repealed] 18A What is a general services charges fund A general services charges fund is a fund established under section 102AA for general services. 18B What is a general services charge A general services charge is a charge payable by a resident in a retirement village, of an amount decided by the scheme operator under the resident's residence contract, for the general services supplied to residents in the village for a financial year. 19 What is a maintenance reserve fund A maintenance reserve fund is a fund established under section 97 for maintaining and repairing the retirement village's capital items. 20 What is a maintenance reserve fund contribution A maintenance reserve fund contribution is an amount payable by a resident to the scheme operator, under the resident's residence contract, as a contribution to the maintenance reserve fund. 21 What is a retirement village dispute (1) A retirement village dispute is a dispute between a scheme operator and a resident of a retirement village about the parties' rights and obligations under the resident's residence contract or this Act. (2) For subsection (1), a retirement village dispute includes a dispute about compliance by a scheme operator or a resident with this Act, whether or not a particular failure to comply is an offence against this Act. (3) In this section— resident includes a former resident. Note— In some provisions of this Act there is no means of enforcement apparent on the face of the provision but enforcement by the dispute resolution process is available because of this section. 22 What is a retirement village issue A retirement village issue is— (a) a retirement village dispute; or (b) an application for an order under sections 169 to 171 or 173. Division 4 Operation of Act 23 Application of Act This Act applies to— (a) a retirement village scheme, including a scheme for a retirement village to which the Body Corporate and Community Management Act 1997 applies, the scheme operator and inducements and invitations to enter into the scheme if— (i) the retirement village is, or is to be, situated in the State, irrespective of where the scheme is operated or inducements or invitations to enter into the scheme are given or published; or (ii) the scheme is operated in the State, irrespective of where the retirement village is, or is to be, situated or inducements or invitations to enter into the scheme are given or published; and (b) a residence contract entered into before or after the commencement of this section, unless this Act states otherwise. 24 Application of Body Corporate and Community Management Act 1997 If there is an inconsistency between this Act and the Body Corporate and Community Management Act 1997 in relation to a person's rights and obligations under a retirement village scheme, this Act prevails to the extent of the inconsistency. 25 Application of Fair Trading Act 1989 This Act does not limit the application of the Fair Trading Act 1989, including the Australian Consumer Law (Queensland) forming part of that Act, to the acquisition, under a residence contract, of goods or services, within the meaning of that Act. 26 Certain age restrictions on residence not unlawful Despite the Anti-Discrimination Act 1991, it is not unlawful for a scheme operator to discriminate on the basis of age if the discrimination merely limits residence in a retirement village to older members of the community and retired persons. Part 2 Retirement village schemes Division 1 Registration 27 Application for registration of a retirement village scheme (1) A person may apply to the chief executive to register a retirement village scheme. Note— See part 15 for transitional and savings provisions about existing retirement village schemes. (2) The application must be in the approved form and accompanied by— (a) particulars of the following— (i) the land on which the retirement village's buildings and facilities are, or are to be, constructed; (ii) the accommodation units and communal facilities the scheme operator undertakes are, or are to be, available for the village when the scheme is registered; (iii) the accommodation units and communal facilities the scheme operator intends to make available for the village after the scheme is registered, depending on the sales activity, finance availability, or market conditions, for the village; (iv) the terms under which persons are, or are to be, invited to enter into the scheme under the residence contracts for the retirement village; (v) other particulars of the scheme prescribed under a regulation; and (b) a copy of the village comparison document for the scheme; and (c) the application fee prescribed under a regulation; and (d) if, before or when the application is made, the chief executive requires the payment of costs under section 88AA(1)—the amount of the costs required to be paid. (3) A requirement mentioned in subsection (2)(d) is sufficiently made of the applicant if it is made generally of applicants in the approved form or notified on the department's website. 28 Registration of retirement village scheme (1) The chief executive may register, or refuse to register, a retirement village scheme for which an application for registration has been made. (2) The chief executive's decision must be made within 60 days of the later of— (a) the day the application is received; or (b) if the particulars with the application do not conform with the requirements of section 27(2) and the chief executive asks for further particulars, the day the particulars are given. (3) The chief executive may register the scheme only if satisfied— (a) the application complies with section 27; and (b) the applicant is not prohibited from operating a retirement village scheme under section 88. (4) If the chief executive registers the scheme, the chief executive must promptly give the applicant a registration certificate, in the approved form, stating the day the scheme was registered. (5) If the chief executive refuses to register the scheme, the chief executive must promptly give the applicant a QCAT information notice for the decision. (6) If the chief executive fails to decide the application in the time required under subsection (2), the chief executive is taken to have refused the application. Note— See section 29 about applying to the tribunal to review a refusal decision made, or taken to have been made, by the chief executive under this section. 28A Deregistration of retirement village scheme (1) This section applies if the chief executive reasonably believes that either— (a) a scheme operator is implementing an approved closure plan for a retirement village scheme; or (b) a retirement village scheme is no longer operating. (2) The chief executive may, by written notice (a deregistration notice) given to the scheme operator, deregister the scheme, effective from— (a) if subsection (1)(a) applies—the day that, under the approved closure plan, the scheme will stop operating; or (b) if subsection (1)(b) applies—30 days after the deregistration notice is given to the scheme operator. (3) The chief executive must also give the scheme operator a QCAT information notice for the decision. 29 Application to QCAT for review (1) A person whose application to register a retirement village scheme has been refused, or is taken to have been refused, may apply, as provided under the QCAT Act, to the tribunal for a review of the decision. (2) However, if the chief executive is taken to have refused the application under section 28, the period within which the person may apply to the tribunal for a review of the decision is 88 days after the application to register the scheme was made. (3) The scheme operator may apply, as provided under the QCAT Act, to the tribunal for a review of the chief executive's decision to deregister a retirement village scheme. 30 [Repealed] 31 [Repealed] 32 [Repealed] 33 [Repealed] 34 Offence to operate etc. an unregistered retirement village scheme (1) If a retirement village scheme is not registered, the scheme operator or proposed scheme operator must not— (a) operate the scheme; or (b) induce or invite a person to participate in the scheme by— (i) residing in the retirement village to which the scheme relates; or (ii) paying an ingoing contribution; or (iii) doing another act in relation to the scheme; or (c) use a document, or publish an advertisement, to induce or invite a person to participate in the scheme by— (i) residing in the retirement village to which the scheme relates; or (ii) paying an ingoing contribution; or (iii) doing another act in relation to the scheme; or (d) extend an existing retirement village. Maximum penalty—540 penalty units. (2) However, the scheme operator or proposed scheme operator does not contravene subsection (1)(c) if the document or advertisement merely invites expressions of interest in the scheme. (3) In this section— advertisement includes an advertisement made by publishing a statement or claim— (a) in a document, including a newspaper or magazine; or (b) by broadcast, electronic communication, telecommunication, video or film. induce includes attempt to induce. Division 2 Retirement village scheme register 35 Retirement village scheme register (1) The chief executive must keep a register for retirement village schemes. (2) The register must include the following items (the records) for each registered scheme— (a) copies of the following documents— (i) the registration certificate; (ii) the village comparison document and notices about material changes to information in the village comparison document given under section 74(5); (iii) if former section 36 applies to the scheme operator under section 237I—the public information document and notices about inaccuracies in the public information document given under former section 36; (b) the particulars of the scheme mentioned in section 27(2)(a); (c) a copy of each independent quantity surveyor's written report given to the chief executive under section 92(6) or 98(8); (d) the annual financial statements and audit reports given to the chief executive under section 113(4). (3) The records are to be kept on the register for at least 10 years. (4) A person may, on payment of the fee prescribed under a regulation— (a) inspect the register at a place or places decided by the chief executive; or (b) take extracts from, or obtain a copy of details in, the register. (5) The register may be kept in any form that allows a person to have access to it under subsection (4). (6) In this section— former see section 237H. 36 [Repealed] 37 [Repealed] Division 3 Chief executive may apply for court orders 38 Chief executive may apply for order appointing a manager of a retirement village (1) The chief executive may apply to the District Court for a management order if the chief executive reasonably believes— (a) the scheme operator has not complied with section 40A(2), 40B(1), 40F(1) or (2), 41C(2), 41D(1), 41H(1) or (2), 113D or 113H(1) or (2); or (b) the order is otherwise necessary to protect the interests of residents of a particular retirement village. (2) In urgent circumstances— (a) the application may be made ex parte; and (b) the management order may be made on an interim basis. (3) If the court makes a management order, it may, at any time, make any ancillary order it considers necessary to support the management order. (4) A manager appointed under a management order must, at the request of the chief executive, report to the chief executive about how the manager has exercised, or will exercise, functions of the scheme operator under the order. Maximum penalty—100 penalty units. (5) If a manager is appointed under a management order to exercise a function of a scheme operator, this Act applies to the exercise of the function as if the manager were the scheme operator. (6) In this section— management order means an order appointing a stated person, as manager of a retirement village, to exercise— (a) all the functions of the scheme operator; or (b) stated functions of the scheme operator; or (c) all the functions, other than stated functions, of the scheme operator. 38A Management and administration of retirement village scheme by manager (1) An expense incurred by a manager in, or an amount charged by a manager for, exercising functions of a scheme operator must be paid from— (a) the general services charges fund; or (b) another fund from which the scheme operator would have been able to pay the expense if the manager had not been appointed. (2) The State is not liable for— (a) an expense incurred by a manager in exercising functions of a scheme operator; or (b) any liability of a scheme operator if a manager is appointed to exercise functions of the scheme operator. (3) To remove any doubt, it is declared that the exercise of a function of a scheme operator by a manager is not a service for the purpose of section 108. (4) In this section— manager means a manager appointed under section 38. 39 Additional power of chief executive to seek an order (1) This section applies if the chief executive considers, on reasonable grounds, that a person is contravening section 34. (2) The chief executive may apply to the District Court for an order to stop the person from contravening the section. (3) The court may make any order, including an interim order, it considers appropriate. Division 4 Cancelling registration of retirement village 40 Definition for division In this division— residents meeting notice see section 40B(1)(b). 40A Notice about cancelling registration (1) This section applies if a scheme operator proposes to close a retirement village scheme. (2) The operator must give the chief executive notice about the proposal in the approved form. Maximum penalty—100 penalty units. (3) For subsection (1), a scheme operator proposes to close a retirement village scheme if the scheme operator proposes to— (a) wind down the retirement village scheme; or (b) stop operating the retirement village scheme, including temporarily. 40B Requirement to prepare closure plan (1) The scheme operator must, within 28 days of giving a notice under section 40A(2) (the notice period) or any extension of the notice period granted under subsection (3), give each resident of the retirement village— (a) a proposed closure plan for the retirement village scheme; and (b) a notice (a residents meeting notice), in the approved form, that states— (i) if the proposed closure plan is not approved under section 40D(1)(a), within a stated reasonable period that is not less than 21 days after the giving of the residents meeting notice, the scheme operator may apply to the chief executive for approval of the proposed closure plan under section 40D(1)(b); and (ii) if the chief executive approves the proposed closure plan under section 40D(1)(b), a resident may apply to the tribunal for a review of the decision under section 41A. Maximum penalty—100 penalty units. (2) The scheme operator may, within the notice period, apply to the chief executive for an extension of the notice period. (3) The chief executive may grant the extension if the chief executive is satisfied it is not reasonably practicable for the scheme operator to comply with subsection (1) within the notice period. 40C Meaning of closure plan (1) A closure plan, for a retirement village scheme, is a written plan about closing the retirement village scheme. (2) A closure plan for a retirement village scheme must be in the approved form and state the matters prescribed by regulation. 40D Approval of closure plan (1) A proposed closure plan may be approved— (a) by the residents, by a special resolution at a residents meeting; or (b) on application under subsection (3), by the chief executive. (2) If the proposed closure plan is approved under subsection (1)(a), the scheme operator must give the chief executive a copy of the approved closure plan within 14 days of the vote. (3) The scheme operator may apply to the chief executive for approval of a proposed closure plan if— (a) the residents, by special resolution at a residents meeting, vote against the approval of the proposed closure plan; or (b) the proposed closure plan is not approved under subsection (1)(a) within the period stated in the residents meeting notice. (3A) Before deciding the application, the chief executive must— (a) give each resident of the retirement village a written notice stating that— (i) the scheme operator has applied for approval of the proposed closure plan; and (ii) the resident may make submissions to the chief executive about the proposed closure plan in a stated way and by a stated day; and (b) if a resident of the retirement village requests a copy of the proposed closure plan—give a copy of the proposed closure plan to the resident; and (c) have regard to any submissions made to the chief executive by the residents in the stated way and by the stated day. (4) After receiving an application for approval of a proposed closure plan, the chief executive must decide— (a) to approve the plan; or (b) to give the scheme operator a written direction to take action, or particular action, to revise the plan. (4A) The chief executive's decision must be made within 90 days of the later of— (a) the day the application is received; or (b) if the chief executive reasonably requires further information for the purpose of making the decision and asks the scheme operator for the further information—the day the information is given. (5) The chief executive may approve the proposed closure plan only if the chief executive is satisfied the plan provides for a clear, orderly and fair process for the closure of the retirement village scheme. (6) If the chief executive approves the proposed closure plan, the chief executive must give— (a) written notice of the decision to the scheme operator; and (b) a QCAT information notice for the decision to each resident. (7) Before giving a direction under subsection (4)(b), the chief executive must— (a) give the operator a written notice stating— (i) that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the proposed closure plan (the proposed action); and (ii) the particulars of the action to be taken; and (iii) the reasons for the proposed action; and (iv) that the operator may make written submissions to the chief executive about the proposed action before a stated day; and (b) have regard to any written submissions made to the chief executive by the operator before the stated day. (8) If the chief executive gives a direction under subsection (4)(b), the chief executive must also give the operator a QCAT information notice for the decision. (9) If the chief executive fails to decide the application in the time required under subsection (4A), the chief executive is taken to have approved the proposed closure plan. 40E Revision of approved closure plan (1) The chief executive may, on the chief executive's own initiative or on the application of the scheme operator, give the scheme operator a written direction to take action, or particular action, to revise an approved closure plan. (2) The chief executive may approve the revised closure plan only if the chief executive is satisfied the revised closure plan provides for a clear, orderly and fair process for the closure of the retirement village scheme. (3) If the chief executive approves the revised closure plan, the chief executive must give— (a) written notice of the decision to the scheme operator; and (b) a QCAT information notice for the decision to each resident. (4) Before giving a direction under subsection (1) to a scheme operator on the chief executive's own initiative, the chief executive must— (a) give the operator a written notice stating— (i) that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the approved closure plan (the proposed action); and (ii) the particulars of the action to be taken; and (iii) the reasons for the proposed action; and (iv) that the operator may make written submissions to the chief executive about the proposed action before a stated day; and (b) have regard to any written submissions made to the chief executive by the operator before the stated day. (5) If the chief executive gives a direction under subsection (1) to a scheme operator on the chief executive's own initiative, the chief executive must also give the operator a QCAT information notice for the decision. 40F Requirement to implement approved closure plan (1) A scheme operator must, when closing a retirement village scheme, comply with an approved closure plan for the retirement village scheme. Maximum penalty—100 penalty units. (2) The scheme operator must, at the request of the chief executive, notify the chief executive about how the approved closure plan is being implemented by the scheme operator. Maximum penalty—100 penalty units. 40G Discontinuing closure of retirement village scheme (1) This section applies if— (a) a scheme operator has given a notice to the chief executive under section 40A(2); and (b) the scheme operator decides not to proceed with the closure of the retirement village scheme. (2) The operator must give the chief executive, and each resident of the retirement village, notice (a notice of discontinuation) of the decision in the approved form. Maximum penalty—100 penalty units. (3) If the operator gives a notice of discontinuation to the chief executive, any approved closure plan, for the closure of the retirement village scheme, is no longer approved. 40H Applying to cancel registration (1) A scheme operator may ask the chief executive to cancel the registration of the retirement village scheme if the operator— (a) stops operating the scheme; or (b) proposes to stop operating the scheme. (2) The request must be written. 41 Cancelling registration (1) Subsection (2) applies if— (a) the scheme operator asks the chief executive to cancel the registration of the retirement village scheme under section 40H; and (b) if a statutory charge existed over the retirement village land—the chief executive has released the charge; and (c) the chief executive is satisfied— (i) the scheme operator has implemented the approved closure plan for the retirement village scheme; and (ii) cancelling the registration of the retirement village scheme is appropriate. (2) The chief executive may— (a) cancel the registration of the scheme; and (b) record the cancellation in the register. 41A Application to tribunal for review A person who has been given a QCAT information notice under this division may apply, as provided under the QCAT Act, to the tribunal for a review of the decision. Division 5 Change of scheme operator 41B Definitions for division In this division— existing scheme operator see section 41C(1). new scheme operator see section 41C(1). 41C Notice about change of scheme operator (1) This section applies if a scheme operator (the existing scheme operator) proposes to transfer control of a retirement village scheme's operation to another person (the new scheme operator). (2) The existing scheme operator must give the chief executive notice about the proposal in the approved form. Maximum penalty—100 penalty units. 41D Requirement to prepare transition plan (1) The existing scheme operator must, within 28 days of giving a notice under section 41C(2) (the notice period) or any extension of the notice period granted under subsection (3), give the chief executive a proposed transition plan for the change of scheme operator. Maximum penalty—100 penalty units. (2) The existing scheme operator may, within the notice period, apply to the chief executive for an extension of the notice period. (3) The chief executive may grant the extension if the chief executive is satisfied it is not reasonably practicable for the existing scheme operator to comply with subsection (1) within the notice period. 41E Meaning of transition plan (1) A transition plan, for a retirement village scheme, is a written plan about transitioning control of the scheme's operation from the existing scheme operator to the new scheme operator. (2) A transition plan for a retirement village scheme must be in the approved form and state the matters prescribed by regulation. 41F Approval of transition plan (1) After receiving the proposed transition plan, the chief executive must decide— (a) to approve the proposed transition plan; or (b) to give the existing scheme operator a written direction to take action, or particular action, to revise the proposed transition plan. (1A) The chief executive's decision must be made within 90 days of the later of— (a) the day the proposed transition plan is received; or (b) if the chief executive reasonably requires further information for the purpose of making the decision and asks the existing scheme operator or the new scheme operator for the further information—the day the information is given. (2) The chief executive may approve the proposed transition plan only if the chief executive is satisfied the plan provides for a clear, orderly and fair process for transitioning control of the scheme's operation from the existing scheme operator to the new scheme operator. (3) For the purpose of deciding whether or not to approve the proposed transition plan, the chief executive may— (a) give a copy of the plan to a person whom the chief executive reasonably considers has an interest in the transitioning of the control of the scheme's operation; and (b) receive and consider submissions from the person about the transitioning of the control of the scheme's operation. (4) If the chief executive approves the proposed transition plan, the chief executive must give— (a) written notice of the decision to the existing scheme operator and the new scheme operator; and (b) a QCAT information notice for the decision to each resident. (5) Before giving a direction under subsection (1)(b), the chief executive must— (a) give the operator a written notice stating— (i) that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the proposed transition plan (the proposed action); and (ii) the particulars of the action to be taken; and (iii) the reasons for the proposed action; and (iv) that the operator may make written submissions to the chief executive about the proposed action before a stated day; and (b) have regard to any written submissions made to the chief executive by the operator before the stated day. (6) If the chief executive gives a direction under subsection (1)(b), the chief executive must also give the operator a QCAT information notice for the decision. (7) If the chief executive fails to decide whether or not to approve the proposed transition plan in the time required under subsection (1A), the chief executive is taken to have approved the proposed transition plan. 41G Revision of approved transition plan (1) The chief executive may, on the chief executive's own initiative or on the application of the existing scheme operator, give the existing scheme operator a written direction to take action, or particular action, to revise an approved transition plan. (2) The chief executive may approve the revised transition plan only if the chief executive is satisfied the revised transition plan provides for a clear, orderly and fair process for the transitioning of the control of the scheme's operation from the existing scheme operator to the new scheme operator. (3) If the chief executive approves the revised transition plan, the chief executive must give— (a) written notice of the decision to the existing scheme operator and the new scheme operator; and (b) a QCAT information notice for the decision to each resident. (4) Before giving a direction under subsection (1) to the existing scheme operator on the chief executive's own initiative, the chief executive must— (a) give the operator a written notice stating— (i) that the chief executive proposes to give the operator a direction to take action, or particular action, to revise the approved transition plan (the proposed action); and (ii) the particulars of the action to be taken; and (iii) the reasons for the proposed action; and (iv) that the operator may make written submissions to the chief executive about the proposed action before a stated day; and (b) have regard to any written submissions made to the chief executive by the operator before the stated day. (5) If the chief executive gives a direction under subsection (1) to the existing scheme operator on the chief executive's own initiative, the chief executive must also give the operator a QCAT information notice for the decision. 41H Requirement to implement approved transition plan (1) The existing scheme operator and new scheme operator must, when transitioning control of the scheme's operation from the existing scheme operator to the new scheme operator, comply with an approved transition plan for the retirement village scheme. Maximum penalty—100 penalty units. (2) The existing scheme operator and new scheme operator must, at the request of the chief executive, notify the chief executive about how the approved transition plan is being implemented. Maximum penalty—100 penalty units. 41I Discontinuing change of scheme operator (1) This section applies if— (a) an existing scheme operator has given a notice to the chief executive under section 41C(2); and (b) the existing scheme operator and the new scheme operator decide not to proceed with the transfer of the control of the retirement village scheme's operation. (2) The existing scheme operator must give the chief executive notice (a notice of discontinuation) of the decision in the approved form. Maximum penalty—100 penalty units. (3) If the existing scheme operator gives a notice of discontinuation to the chief executive, any approved transition plan, about the transitioning of the control of the retirement village scheme's operation from the existing scheme operator to the new scheme operator, is no longer approved. 41J Effect of change of scheme operator (1) This section applies if control of a retirement village scheme's operation is transferred (the transfer) from an existing scheme operator to a new scheme operator. (2) Within 14 days after the transfer takes effect, the new scheme operator must give, to each resident of the retirement village, a notice stating— (a) the scheme operator for the retirement village scheme has changed; and (b) the name, address and telephone number of the new scheme operator; and (c) the date the transfer took effect. Maximum penalty—10 penalty units. (3) Without limiting part 3, division 6, on and from the date the transfer takes effect the new scheme operator— (a) is the scheme operator for the retirement village scheme; and (b) obtains the benefits, and is subject to the obligations, of the previous scheme operator in relation to a residence contract associated with the retirement village scheme. 41K Application to tribunal for review A person who has been given a QCAT information notice under this division may apply, as provided under the QCAT Act, to the tribunal for a review of the decision. Part 3 Residence contracts Division 1 Purpose and intention of part 42 Purpose and intention of part (1) The purpose of this part is to state minimum requirements for residence contracts. (2) However, it is not the intention of this part to prevent a scheme operator agreeing in a residence contract or otherwise to conditions that are more beneficial to a resident or former resident than the provisions of this part. Division 2 General 43 Scheme operator may enter into residence contract only if scheme is registered (1) A scheme operator may enter into a residence contract for the retirement village with someone else only if the scheme is registered under this Act. Maximum penalty—540 penalty units. (2) If a scheme operator enters into a residence contract in contravention of subsection (1), the contract is not invalid or unenforceable for that reason only, but may be terminated under section 52. 44 Person signing residence contract to be given copy When a person signs a residence contract with a scheme operator, the operator must immediately give the person a single bound document comprised of— (a) a signed copy of the contract; and (c) if it is intended to enter into another contract, the terms of which are known, that is ancillary to the residence contract—an unsigned copy of the other contract. Maximum penalty—100 penalty units. 45 Form and content of residence contract (1) A scheme operator must ensure each residence contract for the retirement village includes details, including the details prescribed by regulation, about the following— (a) the right to rescind the contract under section 48 before the cooling-off period ends; (b) if the cooling-off period starts on the day the residence contract is signed—the date the cooling-off period ends; (c) if the cooling-off period starts on the day a later event happens or another contract is entered into—the later event or other contract; (d) the ingoing contribution payable under the contract; (e) the exit fee payable under the contract; (f) the resident's exit entitlement; (g) the services charges; (h) the amounts payable, and when the amounts are payable, by the resident for the maintenance reserve fund for the retirement village; (i) the insurance for the retirement village, and insurance for which the resident is responsible; (j) all conditions precedent to the resident's right to reside in the retirement village; (k) the resident's right to resell the right to reside in the accommodation unit; (l) the resident's entitlement to audited and unaudited financial statements for the village; (m) the dispute resolution process established under this Act; (n) the statutory charge, if relevant to the resident's title to, or interest in, the accommodation unit; (o) the resident's and scheme operator's rights to terminate the contract; (p) the funds the scheme operator is required to keep; (q) the retirement village facilities; (r) the retirement village land; (s) whether the resident and the scheme operator are to share any capital gain or capital loss after the resident's right to reside in the unit is terminated and, if so, how it is to be shared; (t) another matter prescribed by regulation. (2) A regulation may prescribe a term that must be included in a residence contract (a required term) or that must not be included in a residence contract (a prohibited term). (3) A scheme operator must not enter into a residence contract that— (a) is not in the approved form; or Note— See section 227AA(2). (b) does not include details required under subsection (1); or (c) does not include a required term; or (d) includes a prohibited term. Maximum penalty—100 penalty units. (4) A provision of a residence contract is of no effect to the extent it— (a) includes a prohibited term; or (b) purports to restrict or exclude the operation of a provision of this Act; or (c) is otherwise inconsistent with this Act. 45A Scheme operator to give notice of end of cooling-off period in particular circumstances (1) This section applies if the cooling-off period for a residence contract starts on the day a later event happens or another contract is entered into. (2) The scheme operator must, as soon as practicable after the later event happens or the other contract is entered into, give the resident written notice of— (a) the date the later event happens or the other contract is entered into; and (b) the date the cooling-off period ends. Maximum penalty—100 penalty units. 46 Dealing with ingoing contribution (1) A person who receives an amount as an ingoing contribution under a residence contract must give it to one of the following persons (the trustee) to hold in trust— (a) the public trustee; (b) the scheme operator's lawyer; (c) a real estate agent; (d) any authorised trustee corporation under the Corporations Act, section 9. Maximum penalty—100 penalty units. (2) If the trustee receives an amount under subsection (1), the trustee's receipt for the amount is a sufficient discharge for the person for the amount paid. (3) The trustee must hold the amount in trust until the latest of— (a) the day the conditions precedent, if any, to the creation of the right to reside to which the amount relates are fulfilled; or (b) the day the cooling-off period ends; or (c) if the ingoing contribution relates to an accommodation unit that has not previously been occupied—the day the resident's accommodation unit is suitable for habitation and the resident is entitled to vacant possession of the unit. Maximum penalty—100 penalty units. (4) At the end of the later day, the trustee must pay the amount to the person lawfully entitled to it. Maximum penalty—100 penalty units. (5) For subsection (3)(c), without limiting when an accommodation unit is not suitable for habitation, an accommodation unit is not suitable for habitation if— (a) reticulated water is not connected to the unit; or (b) all sanitary installations are not installed or are not operational in the unit. (6) Despite subsection (1), if a person receives an amount as an ingoing contribution under a residence contract after the end of the latest day mentioned in subsection (3), the person may— (a) if the person is lawfully entitled to the amount—keep the amount; or (b) otherwise—pay the amount directly to the person lawfully entitled to it. (7) If there is a dispute between a resident and a scheme operator about who is lawfully entitled to the amount, the dispute is a retirement village dispute. (8) If a retirement village dispute arises under subsection (7), the scheme operator must give the trustee written notice of the dispute immediately it arises. Maximum penalty—100 penalty units. (9) If the trustee is given a notice under subsection (8), the trustee must hold the amount in trust until the dispute is resolved— (a) as provided for under this Act; or (b) by agreement, by deed, between the parties. Maximum penalty—100 penalty units. (10) However, if the contract is rescinded in the cooling-off period, the trustee must immediately pay the amount to the person by whom it was paid under the contract. Maximum penalty—100 penalty units. (11) If a person (the payer) who is required to pay an amount to someone (the payee) under this section does not pay the amount, the payee may recover it, as a debt payable by the payer to the payee. 47 Dealing with instruments assigning property under a residence contract (1) This section applies if the person (the assignor) who enters into a residence contract to secure the person's, or someone else's, right to reside in a retirement village assigns property under the residence contract before the cooling-off period ends. (2) The scheme operator must ensure the assignment instrument is held in escrow by the public trustee or the scheme operator's lawyer (the authorised person). Maximum penalty—100 penalty units. (3) If the residence contract is rescinded in the cooling-off period, the authorised person must release the assignment instrument to the assignor. Maximum penalty—100 penalty units. (4) If the residence contract is not rescinded in the cooling-off period, the authorised person must, at the end of the cooling-off period, release the assignment instrument to the assignee, or someone else at the assignee's written direction. Maximum penalty—100 penalty units. (5) In this section— assignee means the person in whose favour property is assigned under an assignment instrument. Division 3 Rescinding residence contracts 48 Residence contract may be rescinded during cooling-off period A person who, personally or for someone else, enters into a residence contract to secure the person's, or other person's, right to reside in a retirement village may, by written notice given to the scheme operator, rescind the contract before the cooling-off period ends. 49 Reassignment of property acquired in cooling-off period (1) This section applies if the assignee under an assignment instrument mentioned in section 47 acquires the property the subject of the assignment within the cooling-off period. (2) As soon as possible after the assignee becomes aware the residence contract has been rescinded, the assignee must reassign the property to— (a) the person from whom the assignee acquired it (the assignor); or (b) someone else, at the assignor's written direction. Maximum penalty—100 penalty units. (3) The assignee must reassign the property free of all interests, mortgages and other charges to which it has become subject since the assignee acquired it. Maximum penalty—100 penalty units. (4) The assignee is responsible for the costs, expenses and duties relating to the reassignment under this section. 50 Scheme operator to compensate assignor if property assigned in cooling-off period is not reassigned (1) This section applies if section 49 requires an assignee to reassign property on rescission of a residence contract but the assignee— (a) has disposed of the property; or (b) is unable, when the contract is rescinded, to discharge any interests, mortgages and other charges to which the property has become subject since the assignee acquired it. (2) The scheme operator for the retirement village to which the contract relates must pay compensation to— (a) the assignor; or (b) someone else, at the assignor's written direction. (3) The amount of compensation payable— (a) is, after discounting for any GST payable on any supply relating to the payment of the compensation, the amount equalling the value attributed to the assigned property under the residence contract; and (b) may be recovered as a debt payable by the scheme operator to the assignor, or other person mentioned in subsection (2)(b), in a court having jurisdiction for the recovery of the amount claimed. (4) If there are 2 or more scheme operators for the retirement village, the scheme operators are jointly and severally liable to pay the compensation. Division 4 Terminating right to reside 51 Definition for div 4 In this division— resident includes a person who, for someone else, enters into a residence contract to secure the other person's right to reside in a retirement village. 52 Termination by resident (1) A resident may terminate the resident's right to reside in a retirement village by 1 month's written notice given to the scheme operator. (2) Also, a resident may terminate the resident's right to reside in a retirement village by written notice given to the scheme operator if the retirement village scheme is not registered. (3) A notice under subsection (2) must— (a) be given within 14 days after the resident becomes aware the retirement village scheme is not registered; and (b) state the day, no earlier than the day on which notice is given, on which the termination takes effect. (4) If a resident terminates the resident's right to reside in a retirement village under subsection (2), the scheme operator must refund the full amount of the resident's ingoing contribution to the resident within 30 days of the termination. Maximum penalty—540 penalty units. (5) A resident may recover an amount owing under subsection (4) as a debt owed by the scheme operator. 53 Termination by scheme operator (1) A scheme operator may terminate a resident's right to reside in the retirement village by giving the written notice required by this section to the resident. (2) If the resident's right to reside in the retirement village is to be terminated on either of the following grounds, the scheme operator must give the resident 14 days notice— (a) the resident has intentionally or recklessly— (i) injured a person while the person is in the retirement village; or (ii) seriously damaged the resident's accommodation unit; or (iii) seriously damaged property of another person in the retirement village; (b) the resident is likely, intentionally or recklessly, to do something mentioned in paragraph (a)(i) to (iii). (3) The scheme operator must give the resident 2 months notice if the resident's right to reside in the retirement village is to be terminated on any of the following grounds— (a) the resident has committed a material breach of the contract; (b) the scheme operator reasonably believes the resident has abandoned the resident's right to reside in the retirement village; (c) the scheme operator and a person who has assessed the resident's care needs under the Aged Care Act 1997 (Cwlth), section 22.4 reasonably believe the resident's type of accommodation is now unsuitable for the resident; Example of accommodation that is now unsuitable for the resident— The resident resides in an independent living unit and now needs help with personal care not normally provided by the scheme operator. (d) the operator is implementing an approved closure plan. (4) The notice must state— (a) the grounds on which the right to reside is being terminated; and (b) the day by which the resident must vacate the retirement village. (5) If the scheme operator does not know the resident's current address, the scheme operator may give the notice by publishing it in— (a) a newspaper circulating throughout the State; and (b) a newspaper circulating throughout Australia. (6) The scheme operator must not include the grounds for the termination in the newspaper notice. Maximum penalty for subsection (6)—50 penalty units. 53A How to work out particular exit fee for a residence contract (1) This section applies to an exit fee for a residence contract that is worked out under the contract having regard to the length of time the resident has resided in the accommodation unit to which the contract relates. Example— This section applies if the exit fee is 5% of the ingoing contribution payable under the contract after 1 year's residence in the unit and 6% of the ingoing contribution payable under the contract after 2 years residence in the unit. (2) If the contract was entered into before the commencement of this section, the exit fee must be worked out on a daily basis unless the contract provides a way of working out the exit fee that is not on a daily basis. Example of how to work out the exit fee for a residence contract on a daily basis— If— (a) the exit fee is 5% of the ingoing contribution payable under the contract after 1 year's residence in the unit and 6% of the ingoing contribution payable under the contract after 2 years residence in the unit; and (b) the resident resides in the unit for 1 year and 14 days, but not during a leap year; the exit fee is 5% of the ingoing contribution payable under the contract for the first year of residence plus 14/365 of 1% of the ingoing contribution payable under the contract for the 14 days of the second year of residence. (3) If the contract is entered into after the commencement of this section, the exit fee must be worked out on a daily basis. 54 Resident may ask for estimate statement of resident's exit entitlement (1) This section applies if a resident gives a scheme operator a written notice— (a) stating the resident is considering terminating the resident's right to reside in the retirement village under section 52; and (b) asking the operator to give the resident a written estimate of the resident's exit entitlement as at the date of the notice. (2) The scheme operator must comply with the request within 14 days after it is given. Maximum penalty—40 penalty units. (3) However, the scheme operator does not contravene subsection (2) if the scheme operator has given the resident an estimate under that subsection within the 6 months immediately preceding the resident's request. 55 Right to reside in a retirement village terminates automatically on resident's death A right to reside in an accommodation unit in a retirement village held by a resident terminates on the death of the resident. Division 5 Reselling and valuing resident's right to reside 56 Interpretation for div 5 (1) In this division— reinstatement work means replacements or repairs that are reasonably necessary to reinstate a former resident's accommodation unit to the condition required under section 58(1). termination date means— (a) the date a resident's right to reside under a residence contract, including an existing residence contract, in an accommodation unit in a retirement village is terminated under this Act; or (b) if a relative of the resident has a right to reside in the accommodation unit under section 70B(2)—the date the relative advises the scheme operator, under section 70B(5)(d), that the relative wants to enter into a residence contract for the accommodation unit. (2) In this division, if a person holds a freehold interest in an accommodation unit, a reference to