South Australia: Retirement Villages Act 2016 (SA)

South Australia Retirement Villages Act 2016 An Act to regulate retirement villages and the rights of residents of such villages; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Objects 4 Interpretation 5 Application of Act Part 2—Administration Division 1—Registrar 6 Appointment of Registrar 7 Registrar's functions 8 Registrar's power to require information 9 Registrar's obligation to preserve confidentiality 10 Delegation 11 Annual report Division 2—Registration of retirement village schemes 12 Register 13 Notification of information required for register Division 3—Authorised officers 14 Appointment of authorised officers 15 Identification of authorised officers 16 General powers of authorised officers 17 Power to require information etc 18 Offence to hinder etc authorised officers 19 Self incrimination Part 3—Rights of residents Division 1—Creation and exercise of residents' rights 20 Residence contracts 21 Disclosure statements 22 Information to be provided before residence contract entered into 23 Premises condition report 24 Rights in relation to contract etc 25 Offences Division 2—Financial matters 26 Ingoing contributions 27 Exit entitlements 28 Payment of capital fund contributions deducted from exit entitlement 29 Arrangements if resident is absent or leaves 30 Arrangements if resident leaves to enter residential aged care facility 31 Certain taxes, costs and charges must not be charged to residents 32 Rights in relation to remarketing Division 3—Meetings 33 Convening meetings of residents 34 Proceedings at meetings 35 Offences relating to meetings 36 Consultation with new operator 37 Consultation about village redevelopment Division 4—Residents' committees 38 Residents' committees 39 Mandatory consultation with residents' committee in relation to annual budget Division 5—General matters 40 Interim financial reports 41 Harsh or unconscionable residence rules 42 Documents to be supplied to residents 43 Information about managers to be supplied to residents Division 6—Termination of residents' rights 44 Termination of residents' rights Division 7—Resolution of disputes 45 Dispute resolution policy 46 Application to Tribunal Part 4—Administrators, receivers and managers 47 Application for order appointing administrator 48 No application without consent 49 Terms and conditions of appointment 50 Effect of appointment 51 Expenses of administration 52 Administrator may vary residence contract 53 Revocation of appointment 54 Receivers and managers 55 No personal liability of administrator, receiver or receiver and manager Part 5—Miscellaneous 56 Endorsement of certificates of title 57 Lease of land in retirement village 58 Termination of retirement village scheme on application to Supreme Court 59 Voluntary termination of retirement village scheme 60 Certain persons not to be involved in the administration of a retirement village 61 Non-compliance may be excused by the Tribunal 62 Contract to avoid Act 63 Codes of conduct 64 Representations relating to retirement villages 65 Offences 66 Delegation 67 Service 68 Review of Act 69 Regulations Schedule 1—Proceedings before the Tribunal 1 Application of Schedule 3 Presentation of cases before Tribunal 4 Costs on referral of question of law Schedule 2—Transitional provisions Part 4—Transitional provisions 5 Exemptions 6 Registrar 7 Register 8 Authorised officers 9 Residence contracts 10 Exit entitlements 11 Surplus or deficit of accounts 12 Proceedings 13 Application of offences under section 64 14 Regulations Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Retirement Villages Act 2016. 3—Objects The objects of this Act are— (a) to provide a regulatory framework for the operation of retirement villages in South Australia under which a balance is achieved between the rights and responsibilities of— (i) residents of retirement villages; and (ii) operators of retirement villages; (b) to encourage best practice management standards among the operators of retirement villages; (c) to ensure that there is proper disclosure of information to prospective residents of retirement villages; (d) to regulate the making, content, operation and termination of residence contracts; (e) to ensure that residents are properly consulted about matters affecting their residence in the retirement village; (f) to provide for dispute resolution processes. 4—Interpretation (1) In this Act, unless the contrary intention appears— annual meeting of residents means the meeting required to be convened in accordance with section 33(1)(b); authorised officer means a person appointed to be an authorised officer under Part 2; bailiff means a bailiff appointed under the South Australian Civil and Administrative Tribunal Act 2013; business day means any day except a Saturday, Sunday or public holiday; capital fund means a contingency, sinking or other reserve fund or account established for the purposes of capital replacement or improvements, long‑term maintenance or other similar items in respect of a retirement village; community retirement village means a retirement village divided into separate residences and common property by a community plan under the Community Titles Act 1996 or a strata plan under the Strata Titles Act 1988; Deputy President means a Deputy President of the Tribunal appointed under the South Australian Civil and Administrative Tribunal Act 2013; disclosure statement—see section 21; dispute resolution policy—see section 45; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; eligible person means a person who has attained the age of 55 years and retired from full-time employment; exit entitlement means the amount of money that is, under a residence contract, payable by the operator of a retirement village on a person ceasing to reside in the retirement village or when certain conditions specified in the contract are fulfilled and includes an exit entitlement payable in circumstances referred to in section 27(2)(b); exit fee means the amount of money that is, under a residence contract, payable by a resident of a retirement village on the resident ceasing to reside in the retirement village or on the sale of the resident's right to reside at the retirement village; Note— This would include, for example, any deferred management fees, refurbishment costs and remarketing costs. ingoing contribution means a payment (however described) made by or on behalf of a person in consideration for, or in contemplation of, the person becoming a resident in a retirement village (but does not include a recurrent charge, an exit fee, a special levy or any other payment excluded by the regulations from the ambit of this definition); operator of a retirement village means the person by whom or on whose behalf the retirement village scheme is administered; period of occupation—a resident's period of occupation of a residence in a retirement village is the period— (a) commencing on the day on which the resident enters into occupation of the residence in the retirement village; and (b) concluding on the day on which the resident ceases to reside in the residence in the retirement village; Note— See also subsection (2). premises condition report—see section 23; President means the President of the Tribunal appointed under the South Australian Civil and Administrative Tribunal Act 2013; recurrent charge means a fee, charge or other amount (as specified in the residence contract) payable by a resident to the operator of a retirement village on a recurrent basis; register—see section 12; related body corporate has the same meaning as in the Corporations Act 2001 of the Commonwealth; remarketing policy—see section 22; residence means premises or a part of premises designed for separate occupation as a place of residence; residence contract means a contract under which a person enters into occupation of a residence in a retirement village in accordance with a retirement village scheme; residence rules means the rules with which residents of a retirement village are expected by the operator to comply; resident of a retirement village means a person who has entered into occupation of a residence in accordance with the scheme and (subject to the terms of a residence contract) includes a spouse or domestic partner of such a person who— (a) is residing with that person; or (b) was residing with that person at the time of his or her death; retirement village means a complex of residences or a number of separate complexes of residences (including appurtenant land) occupied or intended for occupation under a retirement village scheme but does not include a complex excluded from the ambit of this definition by the regulations; retirement village scheme or scheme means a scheme established for eligible persons and their spouses or domestic partners, or predominantly for eligible persons and their spouses or domestic partners, under which— (a) residences are occupied pursuant to a lease or licence; or (b) a right to occupation of residences is conferred by ownership of shares; or (c) residences are purchased from the operator subject to a right or option of repurchase; or (d) residences are purchased by prospective residents on conditions restricting their subsequent disposal, but does not include a scheme under which no resident or prospective resident of a residence pays an ingoing contribution in consideration for, or in contemplation of, admission as a resident under the scheme; senior manager, in relation to a retirement village, means any person to whom the village manager reports or who is responsible for directing the activities of the village manager (but does not include a person appointed as a receiver and manager of a body corporate); special levy—see section 21(2)(b); special resolution means a resolution passed at a meeting of residents of a retirement village in the following circumstances: (a) at least 15 business days written notice of the meeting, containing a statement of the proposed special resolution, must have been given to all residents; (b) the resolution must have been passed by a majority of not less than three‑quarters of the number of residents who were entitled to vote at the meeting (either in person or by way of an absentee vote exercised in accordance with this Act); spouse—a person is the spouse of another if they are legally married; Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; village land owner, in relation to a retirement village, means the owner of the land used for the retirement village but does not include an owner who is a resident of the retirement village; village manager, in relation to a retirement village, means the person responsible for the day to day management of that retirement village but does not include a person appointed as a receiver and manager of a body corporate. Note— This could be the operator or a person employed or engaged by the operator to manage the retirement village. (2) For the purposes of this Act— (a) a person enters into occupation of a residence in a retirement village on the day on which the person's right of occupation arises (whether or not the person chooses to exercise the right on that day); (b) a resident's settling-in period is— (i) the period— (A) commencing on— • the day on which the resident enters into occupation of the residence in the retirement village; or • the day on which the resident signs the residence contract, whichever is later; and (B) concluding 90 days after the day referred to in subsubparagraph (A); or (ii) such longer period as may be specified in the resident's residence contract; (c) a person will be taken to cease to reside in a residence in a retirement village— (i) when the person (or someone else on behalf of the person) delivers up vacant possession of the residence to the operator; or (ii) when the executor or administrator of the person's estate delivers up vacant possession of the residence to the operator following the person's death; or (iii) if— (A) the operator decides to terminate the person's right of occupation under Part 3; and (B) the Tribunal confirms the operator's decision to terminate the right of occupation, at the end of the period fixed by the Tribunal within which the person must vacate the residence; (d) a person will be taken to have delivered up vacant possession of a residence in a retirement village if— (i) the residence is no longer occupied; and (ii) all personal property has been removed from the residence (other than property that remains the property of the operator of the retirement village or that is to remain in the residence by agreement with the operator). 5—Application of Act (1) Subject to this section— (a) this Act applies to retirement villages established either before or after the commencement of this Act; and (b) this Act binds the Crown in right of this State and (so far as the legislative power of the State permits) the Crown in any other capacity, but not so as to impose criminal liability on the Crown. (2) The Minister may, by notice in the Gazette, confer exemptions from this Act or specified provisions of this Act— (a) on specified religious or charitable organisations or religious or charitable organisations of a specified class; or (b) in relation to specified retirement villages or retirement villages of a specified class. (3) An exemption under subsection (2) may be conditional or unconditional. (4) A person who contravenes or fails to comply with a condition of an exemption is guilty of an offence. Maximum penalty: $10 000. Note— This Act does not apply in relation to aged care facilities under the Aged Care Act 1997 of the Commonwealth. Part 2—Administration Division 1—Registrar 6—Appointment of Registrar (1) There will be a Registrar for the purposes of this Act. (2) The Minister will appoint a Public Service employee to be the Registrar. (3) The Minister may assign a Public Service employee to act as the Registrar— (a) during a vacancy in the office of Registrar; or (b) when the Registrar is absent from, or unable to discharge, official duties. 7—Registrar's functions (1) The Registrar's functions are— (a) to gather and maintain current information about retirement villages and retirement village schemes in South Australia in a manner consistent with the Registrar's obligations of confidentiality; and (b) to advise the Minister on the administration and operation of this Act; and (c) to perform any other function assigned to the Registrar under this Act or by the Minister. (2) The Registrar may, at any time, and must, at the request of the Minister, report to the Minister on any issue concerning retirement villages. 8—Registrar's power to require information (1) A person must, if required to do so by written notice given by the Registrar— (a) give the Registrar, within a time and in a manner stated in the notice (which must be reasonable), information in the person's possession that the Registrar reasonably requires for the performance of the Registrar's functions under this Act; and (b) verify the information by statutory declaration. Maximum penalty: $2 500. Expiation fee: $210. (2) A person cannot be compelled to give information under this section if the information might tend to incriminate the person of an offence. 9—Registrar's obligation to preserve confidentiality (1) The Registrar must preserve the confidentiality of information gained in the course of the performance of the Registrar's functions under this Act that— (a) could affect the competitive position of the operator of a retirement village or some other person; or (b) is commercially sensitive for some other reason. (2) Subsection (1) does not apply to the disclosure of information between— (a) persons engaged in the administration of this Act; or (b) the Registrar and the Tribunal for the purposes of resolving a dispute under this Act. (3) Information classified by the Registrar as confidential is not liable to disclosure under the Freedom of Information Act 1991. 10—Delegation (1) The Registrar may delegate a power or function vested in or conferred on the Registrar by or under this Act— (a) to a particular person or body; or (b) to the person for the time being holding or acting in a particular office or position. (2) A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated. (3) A delegation— (a) may be absolute or conditional; and (b) does not derogate from the power of the delegator to act in a matter; and (c) is revocable at will by the delegator. 11—Annual report (1) The Registrar must, on or before 30 September in every year, forward to the Minister a report on his or her work and operations for the preceding financial year. (2) The Minister must, within 12 sitting days after receiving a report under this section, have copies of the report laid before both Houses of Parliament. Division 2—Registration of retirement village schemes 12—Register (1) The Registrar must maintain a register containing the following information: (a) in respect of each retirement village— (i) the name and business address of the operator of the village; and (ii) the name and address of the village; and (iii) the references for the certificates of title of the land used for the village; and (iv) the name, address and contact details of the village land owner; and (v) the name, address and contact details of the village manager; and (vi) the name, address and contact details of any senior manager; (b) any other information that the Registrar considers appropriate. (2) The register is to be available for inspection, without fee, during ordinary office hours at a public office, or public offices, determined by the Minister. (3) The Minister must ensure that copies of material on the register can be purchased for a reasonable fee at the public office, or public offices, at which the register is kept available for inspection. 13—Notification of information required for register (1) The operator of a retirement village established after the commencement of this section must, within 28 days after the first person enters into occupation of his or her residence in accordance with the scheme, give the Registrar— (a) the name and business address of the operator; and (b) the name and address of the village; and (c) the references for the certificates of title of the land used for the village; and (d) the name, address and contact details of the village land owner; and (e) the name, address and contact details of the village manager; and (f) the name, address and contact details of any senior manager; and (g) any other information that the Registrar considers appropriate. Maximum penalty: $2 500. Expiation fee: $210. (2) The operator of a retirement village must, within 28 days of any change in the information given under subsection (1) (including a change by virtue of the sale of an interest in the land within the village, or the name of the operator or business address), give the Registrar notice of details of the change. Maximum penalty: $2 500. Expiation fee: $210. (3) Any information required under this section must be given in a manner and form determined by the Registrar. Division 3—Authorised officers 14—Appointment of authorised officers (1) The Minister may appoint suitable persons to be authorised officers for the purposes of this Act. (2) An appointment may be made subject to conditions specified in the instrument of appointment. (3) The Minister may, at any time, revoke an appointment of an authorised officer or vary or revoke a condition of appointment or impose a further condition of appointment. 15—Identification of authorised officers (1) An authorised officer must be issued with an identity card by the Minister. (2) If the powers of the authorised officer have been limited by conditions, the identity card issued to the officer must contain a statement of those conditions. (3) An authorised officer must, at the request of a person in relation to whom the officer intends to exercise powers under this Act, produce for the inspection of the person his or her identity card. 16—General powers of authorised officers (1) An authorised officer may (subject to any conditions of the officer's appointment) exercise the following powers for the purposes of the administration or enforcement of this Act: (a) subject to subsection (2)—enter and inspect at any reasonable time premises, a place or a vehicle that the authorised officer believes on reasonable grounds are used for purposes connected to the management of or carrying on of the business of a retirement village and use such force as may be reasonably necessary to gain entry; (b) require a person to produce documents in the person's possession or control for inspection; (c) require a person who has been issued a document under this Act, or who is required to keep records under this Act, to produce the document or records for inspection; (d) inspect, take copies of or extracts from, or make notes from, any documents or records produced and, for that purpose, take temporary possession of any such documents or records; (e) take possession of any documents or records produced (if the authorised officer considers it necessary to do so for the purpose of obtaining evidence or protecting evidence from destruction); (f) take such photographs, films and audio, video and other recordings as the authorised officer considers necessary; (g) require any person in the premises, place or vehicle to answer questions or otherwise furnish information in relation to the carrying on of the business of a retirement village or a contravention of a provision of this Act; (h) require a person who the officer reasonably suspects has committed, is committing or is about to commit, an offence against this Act to state the person's full name and usual place of residence and to produce evidence of the person's identity; (i) require the owner or occupier (including a resident) of the premises, place or vehicle to provide the authorised officer with such assistance and facilities as is or are reasonably necessary to enable the authorised officer to exercise the functions of an authorised officer under this Act. (2) An authorised officer cannot exercise the power conferred by subsection (1)(a) to enter a part of premises used for residential purposes except— (a) with the consent of the owner or occupier of the premises; or (b) on the authority of a warrant issued by a justice. (3) A justice must not issue a warrant under subsection (2) unless satisfied, by information given on oath, that the warrant is reasonably required in the circumstances. (4) In the exercise of powers under this Act, an authorised officer may be assisted by such persons as the officer considers necessary in the circumstances. (5) An application for a warrant under this section cannot be made to a justice who is a resident of the retirement village in respect of which the warrant is to be executed. 17—Power to require information etc If an authorised officer believes on reasonable grounds that a person is capable of giving information, producing documents or answering questions in relation to a matter that constitutes, or may constitute, an offence under this Act or the regulations, the authorised officer may, by written notice given to the person, require the person— (a) to provide an authorised officer with any such information in writing within the time and in the manner specified in the notice; or (b) to produce to an authorised officer, in accordance with the notice, any such documents; or (c) to appear before an authorised officer at a time and place specified in the notice and answer any such questions, either orally or in writing, and produce any such documents. 18—Offence to hinder etc authorised officers (1) A person who— (a) hinders or obstructs an authorised officer, or a person assisting an authorised officer, in the exercise of powers under this Act; or (b) uses abusive, threatening or insulting language to an authorised officer or a person assisting an authorised officer; or (c) subject to section 19—refuses or fails to comply with a requirement of an authorised officer under this Act; or (d) provides information or answers questions in purported compliance with a requirement made or question asked by an authorised officer under this Act knowing the information or answer to be false or misleading in a material particular; or (e) falsely represents, by words or conduct, that he or she is an authorised officer, is guilty of an offence. Maximum penalty: $10 000. (2) A person who assaults an authorised officer, or a person assisting an authorised officer, in the exercise of powers under this Act, is guilty of an offence. Maximum penalty: $20 000 or imprisonment for 2 years. 19—Self incrimination A person may refuse to comply with a requirement of an authorised officer under this Division to provide information if the information might tend to incriminate the person of an offence. Part 3—Rights of residents Division 1—Creation and exercise of residents' rights 20—Residence contracts (1) A residence contract must be in writing and comply with this section and the requirements (if any) prescribed by the regulations. (2) The residence contract must include the following information: (a) details about the residence in respect of which the person is entering the contract; (b) the name and contact details of the operator of the retirement village (and the manner in which the resident will be notified if the operator changes); (c) details about the resident's rights and obligations created by or under the contract, including— (i) the right to cool‑off (that is, to rescind the contract and not proceed with becoming a resident in the retirement village); and (ii) the right to occupation of the residence; and (iii) recurrent charges for which the resident is liable; and (iv) additional services and facilities available to residents of the retirement village and the costs of those services and facilities; and (v) the right to terminate the right of occupation of the residence and to receive an exit entitlement; and (vi) the operator's dispute resolution policy; (d) detailed information about who will be responsible for repairing or replacing the fixtures, fittings and furnishings provided in the residence and how the cost of repairing or replacing such fixtures, fittings and furnishings is to be funded; (e) any other information prescribed by the regulations. (3) A residence contract will be taken to include a warranty on the part of the operator of the correctness of the information contained in the documents provided under section 22 (subject to any written alteration made by the operator with the consent of the resident on or before the signing of the contract by the operator), and that warranty prevails over any inconsistent contractual term unless the resident elects to rely on the contractual term (and then the contractual term will prevail to the extent of any inconsistency). 21—Disclosure statements (1) A disclosure statement must be in writing and comply with this section and the requirements (if any) prescribed by the regulations. (2) The disclosure statement must provide information about the financial arrangements relating to residents of the retirement village including— (a) information about— (i) all fees and charges that the person would be responsible for under the residence contract (whether as an ingoing contribution, as a recurrent or other fee or charge payable by a resident or as an exit fee) including a description of each fee or charge and the amount of the fee or charge or manner in which the fee or charge will be calculated; and (ii) what the operator does with the fees and charges; and (iii) any utilities, services or facilities provided or available to residents of the village (such as electricity, telephone or Internet provided by a third party) that the operator has an interest in or would obtain any fee or reward in relation to; and (iv) the manner in which the resident's exit entitlement will be calculated and the effect of section 30; and (v) the insurance arrangements that are in place in relation to the village; and (b) a statement advising that a resident may be required to pay a fee, charge or other amount to the operator to enable the operator to recover an unforseen expense of the retirement village (a special levy); and (c) a statement advising that— (i) the disclosure statement is not a replacement for the residence contract but is intended only as a summary of certain information contained in the contract; and (ii) the prospective resident must ensure that they understand the terms of the residence contract; and (iii) it is recommended that the prospective resident seeks legal and financial advice about the residence contract; and (d) any other information or statement prescribed by the regulations. 22—Information to be provided before residence contract entered into The operator of a retirement village must, at least 10 business days before a person enters into a residence contract, give the person a copy of each of the following documents: (a) the residence contract; (b) the disclosure statement; (c) if the contract relates to a retirement village already established— (i) the financial statements presented at the last annual meeting of residents of the village, including a written statement of any subsequent change in the affairs of the village and the operator that may significantly affect the resident's decision to enter the village; and (ii) a copy of the minutes of the last 2 annual meetings of residents of the village (if 2 or more such meetings have been held) or of the last annual meeting (if only 1 such meeting has been held); (d) the residence rules; (e) the policy of the operator to be applied for the remarketing of residences (the remarketing policy); (f) any code of conduct to be observed by the operator or residents; (g) any other document prescribed by the regulations. 23—Premises condition report (1) A premises condition report must be in writing and comply with this section and the requirements (if any) prescribed by the regulations. (2) The operator of a retirement village must, not more than 10 business days after a person enters into occupation of a residence in a retirement village, complete a premises condition report providing detailed information about— (a) the condition of the fixtures, fittings and furnishings provided in the residence; and (b) any other information prescribed by the regulations. (3) The premises condition report must be signed by, or on behalf of, the operator and by the person. 24—Rights in relation to contract etc (1) An operator of a retirement village must not, without the approval of the Minister— (a) make a representation to a prospective resident that is inconsistent with information given to the prospective resident under this Division; or (b) give information to a prospective resident under this Division that is inconsistent with a representation made by the operator to the prospective resident. (2) For the purposes of subsection (1), a representation made by an employee or agent of an operator will be taken to be a representation of the operator unless the operator proves that the person was not acting in the course of his or her employment or agency. (3) Subject to subsection (4), a prospective resident is entitled to rescind the residence contract (to cool-off) at any time within the period of 10 business days after the day on which the prospective resident signed the contract. (4) If the prospective resident— (a) enters into occupation of the residence before the end of the period referred to in subsection (3); and (b) signs a written waiver acknowledging that the operator has informed them of the entitlement to cool‑off and they have chosen to waive that entitlement, the prospective resident will be taken to have waived the entitlement to cool‑off. (5) A contract is rescinded under this section by written notice to the operator. (6) A residence contract may be enforced against the operator for the time being of the retirement village. 25—Offences (1) If a provision of this Division is not observed, the operator is guilty of an offence. Maximum penalty: $35 000. (2) A person must not knowingly make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of a particular) in information provided to a prospective resident under this Division. Maximum penalty: $35 000. Division 2—Financial matters 26—Ingoing contributions (1) Subject to subsection (2), an ingoing contribution must be held in trust (in an ADI account or in a form of investment in which trustees are authorised by statute to invest trust money) until the person by or on whose behalf the ingoing contribution was paid enters into occupation of the residence. Maximum penalty: $35 000. (2) The Minister may, on the application of an operator, grant an exemption from subsection (1) if satisfied of the operator's capacity and willingness to provide residences in accordance with a contract entered into between the operator and a prospective resident. (3) An exemption may be conditional or unconditional and if an operator contravenes or fails to comply with a condition of an exemption, the operator will be guilty of an offence. Maximum penalty: $10 000. 27—Exit entitlements (1) This section applies despite the terms of a residence contract (but subject to any order of the Tribunal under subsection (7)). (2) If a residence contract provides for payment of an exit entitlement when certain conditions specified in the contract are fulfilled, the resident (or a person claiming under the resident) may recover the amount payable as a debt from the operator, for the time being, of the retirement village when— (a) the specified conditions are fulfilled; or (b) either— (i) a period of 18 months has elapsed since the resident ceased to reside in the retirement village; or (ii) a period of not less than 18 months has elapsed since the resident gave the operator a notice in accordance with subsection (3) (being a notice that has not since been withdrawn in accordance with subsection (4)(b)) and a period of not less than 3 months has elapsed since the resident delivered up vacant possession of the residence; or (c) the operator agrees to pay the exit entitlement to the resident, whichever occurs first. (3) A resident gives an operator notice in accordance with this subsection if— (a) the resident gives the operator a notice, in writing and in accordance with any other prescribed requirements, advising the operator that the resident— (i) intends to cease to reside in the residence in the retirement village; but (ii) wishes to remain in occupation of the residence until the exit entitlement becomes payable in accordance with subsection (2); and (b) a period of 10 business days has elapsed since the notice was given to the operator; and (c) any previous such notice given by the resident to the operator was withdrawn at least 6 months before this notice was given to the operator. (4) A resident who gives an operator notice in accordance with subsection (3)— (a) is, by giving such notice, taken to have agreed to comply with the prescribed requirements for the period during which the resident remains in occupation of the residence pursuant to the notice (and those requirements will, for the purposes of this Act, be taken to be terms of the residence contract during that period); and (b) may withdraw the notice at any time with the agreement of the operator. (5) If— (a) an amount becomes payable to a person in accordance with subsection (2)(b); and (b) that amount should, in accordance with the residence contract, be calculated based on the consideration paid on sale of a right to reside in the retirement village; and (c) the sale referred to in paragraph (b) has not yet occurred, the following provisions apply: (d) the person to whom the exit entitlement is payable may, by written notice given to the operator of the retirement village within the prescribed period, elect not to receive the payment at that time but to wait until the exit entitlement becomes payable in accordance with subsection (2)(a); (e) if the person does not so elect—the amount payable must be calculated in the manner provided in the residence contract but as if the consideration paid on sale of the relevant right to reside in the retirement village was the current market value of that right. (6) For the avoidance of doubt, if a resident receives a payment in accordance with subsection (2)(b), that payment is taken to be the exit entitlement for the purposes of the contract (and is not subject to any adjustment when the conditions specified in the contract for payment of the exit entitlement later occur). (7) The Tribunal may, on the application of the operator of the retirement village made within the period of 18 months referred to in subsection (2)(b), extend that period if satisfied that special circumstances exist. (8) In considering an application under subsection (7), the Tribunal must have regard to— (a) the financial hardship likely to be suffered by the operator if the order were not made; and (b) whether the operator has taken reasonable steps to fulfil the conditions specified in the residence contract for the payment of the exit entitlement. (9) The Tribunal may, when making an order under subsection (7), make any consequential or ancillary orders it thinks fit. (10) The rights of a resident to payment of an exit entitlement are a charge on land in the retirement village other than— (a) a residence owned by a resident; or (b) common property in a community retirement village, provided that the charge only operates to the extent of the ingoing contribution paid by the resident. (11) Despite the Real Property Act 1886, the charge referred to above ranks in priority to any other mortgage, charge or encumbrance over the land to which the charge relates. (12) The charge referred to above can only be enforced— (a) with the approval of the Supreme Court; and (b) subject to any conditions to which the Supreme Court's approval is subject. (13) If the Supreme Court approves the enforcement of the charge it may, subject to the conditions stipulated by the Court, be enforced in the same way as a mortgage registered under the Real Property Act 1886. (14) If the Supreme Court approves the enforcement of the charge in a case where the operator is not the village land owner, the village land owner may, subject to any order of the Supreme Court, recover the amount of the charge so enforced from the operator as a debt. (15) If an operator fails to pay the whole or any part of an exit entitlement within 10 business days after the resident becomes entitled to recover the amount as a debt in accordance with this section, the operator is guilty of an offence. Maximum penalty: $5 000. Expiation fee: $315. (16) If a resident of a retirement village disagrees with the operator's determination of the market value of the right to reside in a residence made for the purposes of determining an exit entitlement, the resident may require the operator to obtain an independent valuation in accordance with any requirements prescribed by the regulations (and in such a case the operator may recover half of the costs of obtaining the valuation from the resident as a debt or by subsequently deducting those costs from the resident's exit entitlement). (17) A reference in this section to a resident includes— (a) any person who has entered into a residence contract (whether or not the person has entered into occupation of the residence); and (b) any person who has entered into a residence contract but has not entered into occupation of the residence as a result of a failure of the operator to comply with a term or condition in the residence contract, and such a person will, for the purposes of this section, be taken to have ceased to reside in the residence on the day on which the person gave written notice to the operator that he or she did not intend to enter into occupation of the residence and wished to terminate the residence contract. 28—Payment of capital fund contributions deducted from exit entitlement (1) If an amount is deducted from an exit entitlement as a contribution to a capital fund, the operator of the retirement village must pay that amount into the relevant fund or account— (a) within 10 business days after making the deduction; or (b) if subsection (2) applies—in accordance with subsection (2). Maximum penalty: $5 000. (2) If an exit entitlement is paid to a resident in accordance with section 27(2)(b), the operator may, instead of paying an amount deducted from it into a fund or account within 10 business days (in accordance with subsection (1)(a)), pay the amount into the relevant fund or account— (a) if the operator determines that the residence will not be subject to another residence contract—at any time before the end of the financial year in which the exit entitlement was paid; or (b) in any other case—at any time before another person enters into occupation of the residence, provided that the operator must keep a record of the outstanding payments, and identify them in any relevant financial statements prepared for the purposes of this Act (while those payments remain outstanding). 29—Arrangements if resident is absent or leaves (1) If a resident is absent from a retirement village for a continuous period of at least 28 days, the resident is not liable to pay, in respect of a period of absence after those 28 days, any amount in respect of any personal service that the retirement village (or the operator) ceases to provide to the resident because of his or her absence from the retirement village. (2) If a resident ceases to reside in a retirement village— (a) the resident ceases to be liable to pay any amount (other than an amount that has already accrued) in respect of any personal service that the retirement village (or the operator) formerly provided to the resident; and (b) the operator must assume responsibility for the payment of any recurrent charges in respect of the residence formerly occupied by the resident, or otherwise payable by the resident in connection with the retirement village (other than with respect to any amount attributable to a charge that has already accrued). (3) If— (a) an operator must assume responsibility for recurrent charges on account of a resident ceasing to reside in a retirement village; and (b) the resident is entitled to the payment of an exit entitlement, then the operator is entitled, subject to subsection (4), to recover from the resident an amount equal to the amount paid by the operator for recurrent charges that would otherwise have been payable by the resident over the prescribed period. (4) An amount recoverable under subsection (3)— (a) cannot exceed the amount of the exit entitlement payable to the resident (and if it would exceed that amount, the amount recoverable under subsection (3) must be reduced so as to equal the amount of the exit entitlement payable to the resident); and (b) cannot be recovered until the exit entitlement is due to be paid to the resident (and may then be recovered as a deduction from the exit entitlement payable to the resident). (5) For the purposes of subsection (3), the prescribed period, in relation to a resident who has ceased to reside in a retirement village, is— (a) unless paragraph (b) applies—the period of 6 months from the day on which the resident ceased to reside in the retirement village; or (b) if the Tribunal has, on the application of the operator, determined that the prescribed period for the purposes of that subsection should in the circumstances of the particular case be longer than 6 months—the period determined by the Tribunal, subject to the qualification that the prescribed period will in any event come to an end when the residence occupied by the resident before he or she left the retirement village is resold or relicensed, or otherwise taken over or occupied by another resident. (6) The Tribunal should not make a determination extending the prescribed period under subsection (5) unless the Tribunal is satisfied that in the circumstances of the particular case it would be harsh and unreasonable to limit the prescribed period to 6 months. (7) If— (a) a resident is liable to pay an amount in respect of any other charges that may accrue after he or she has ceased to reside in a retirement village; and (b) the resident is entitled to the payment of an exit entitlement, then the operator is not entitled to recover the amount until the exit entitlement is due to be paid to the resident (and the amount may then be recovered as a deduction from the exit entitlement payable to the resident). (8) If an operator does not make 1 or more payments for which the operator must assume responsibility under subsection (2)(b) at the same time as the resident would have been required to make the payments if he or she had remained in the retirement village, the operator— (a) must keep a record of the outstanding payments, and identify them in any relevant financial statements prepared for the purposes of this Act (while those payments remain outstanding); and (b) must make the outstanding payments before any other person enters into occupation of the residence; and (c) must not attempt to recover the outstanding payments by increasing the recurrent charges payable by other residents. Maximum penalty: $5 000. (9) In this section— personal service means a service provided to a resident individually (rather than to residents generally). 30—Arrangements if resident leaves to enter residential aged care facility (1) A resident of a retirement village— (a) who has been approved under the Aged Care Act 1997 of the Commonwealth to enter into residential care at an aged care facility provided by an approved provider under that Act; and (b) who, in order to do so, chooses to pay a refundable accommodation deposit under that Act; and (c) who does not have ready access to funds to make the payment, or whose personal finances would be seriously affected by any such payment; and (d) who will be entitled, on conditions specified in the residence contract being fulfilled or otherwise in accordance with section 27, to payment of an exit entitlement, may, within 60 days after being so approved for entry into the facility or ceasing to reside in the village (whichever is the later), apply to the operator for payments to be made to the aged care facility on behalf of the resident under this section. (2) The operator may require a resident to provide evidence of a kind prescribed by regulation with an application under subsection (1). (3) The operator must, within 30 days after receiving an application properly made under this section, commence making payments to the aged care facility for the daily accommodation payment applicable to the resident's care at the aged care facility. (4) The operator must continue to make the payments referred to in subsection (3) until— (a) the total amount of the payments made by the operator on behalf of the resident under this section equals 85% of the operator's reasonable estimate of the amount of the resident's exit entitlement; or (b) the resident becomes entitled to be paid the resident's exit entitlement, whichever occurs first. (5) If an operator fails to pay an amount as required under this section, the operator is guilty of an offence. Maximum penalty: $5 000. Expiation fee: $315. (6) An operator may recover all amounts paid on behalf of a resident under this section by deducting the total of such amounts from the resident's exit entitlement. 31—Certain taxes, costs and charges must not be charged to residents (1) Subject to subsection (2), land tax payable in respect of any of the land comprising a retirement village is not recoverable by the taxpayer directly or indirectly from the residents of the village. (2) Subsection (1) does not prevent a taxpayer from recovering directly from the resident of a residence land tax payable in respect of that residence and its appurtenant land if the residence is not being occupied by the resident as his or her principal place of residence. (3) Subject to this Act, the operator of a retirement village must assume responsibility for— (a) costs relating to the depreciation, amortisation or writing-off of assets of the retirement village; and (b) costs incurred by the operator in obtaining legal advice or undertaking legal proceedings relating to the retirement village; and (c) fines or other penalties incurred by the operator; and (d) fees, charges or other monetary amounts payable by the operator in respect of newly constructed residences in a retirement village that are not yet subject to a residence contract, and must not attempt to recover these amounts by increasing the recurrent charges payable by residents. (4) Despite any provision of a residence contract or other agreement, a resident or prospective resident is not liable to pay recurrent or other charges relating to a residence in a retirement village (other than an ingoing contribution) in respect of a period before he or she entered into occupation of the residence. 32—Rights in relation to remarketing If— (a) a residence contract includes conditions that make the payment of an exit entitlement, or any part of an exit entitlement, contingent on the subsequent sale of a right of occupation of the premises; and (b) a period of 9 months has elapsed since the resident— (i) ceased to reside in the retirement village; or (ii) gave the operator a notice in accordance with section 27(3) (being a notice that has not since been withdrawn in accordance with section 27(4)(b)), the resident (or a person claiming under the resident) is entitled to participate in the remarketing of the premises in accordance with the prescribed scheme. Division 3—Meetings 33—Convening meetings of residents (1) The operator of a retirement village— (a) may convene a meeting of the residents at any time; and (b) must convene such a meeting on an annual basis. (2) The annual meeting must be held not more than 4 months after the end of the financial year that applies in relation to the retirement village. (3) The annual meeting must be chaired by a representative of the operator who is authorised to speak on behalf of the operator and to give responses to questions put at the meeting in accordance with the requirements of this section. (4) A meeting of residents may also be convened by a residents' committee. (5) A meeting will be convened by sending to each resident, at least 10 business days before the day of the meeting, a written notice setting out— (a) the time and place of the meeting; and (b) the business to be transacted at the meeting. (6) A notice for an annual meeting (whether or not given in compliance with subsection (5)) must be accompanied by— (a) the following information relating to the retirement village: (i) an audited statement of accounts in respect of the previous financial year showing— (A) the income received from residents, and expenditure of that income, for the financial year; and (B) if, during the financial year, there was any income received into, or expenditure from, a capital fund—such income or expenditure; (ii) a statement of estimates of income from residents, and expenditure of that income, for the current financial year; (iii) a statement of estimates of income (from any source), and expenditure, for the current financial year in respect of any capital fund; (iv) a list of the expenditure items covered, or proposed to be covered, by the recurrent charges for the current financial year, including a description of each general category of item (to a reasonable degree of particularity) and the amount of expenditure for each such category; (v) if the expenditure for the current financial year includes any management expenditure— (A) a description of each item to which the expenditure relates; and (B) if the expenditure is apportioned between more than 1 retirement village or other businesses—the manner in which such apportionment is calculated; (vi) any other information required by the regulations; and (b) an invitation to residents to submit— (i) written questions to the operator at least 5 business days before the date of the meeting; and (ii) other questions at the meeting. (7) The operator must ensure— (a) that information provided under subsection (6)(a) complies with any standard or principle prescribed by the regulations; and (b) that a resident is afforded, on request, a reasonable opportunity to inspect, depending on how the operator prepares its accounts— (i) an audited balance sheet (with appropriate notes) for the retirement village; or (ii) an audited balance sheet (with appropriate notes) for the operator, as at the end of the previous financial year. (8) In the case of a community retirement village, a meeting convened under this section may be held in conjunction with a meeting of the community corporation or the strata corporation. (9) The operator of a retirement village must, for the purposes of this section, establish a financial year that is to apply (on a yearly basis) in relation to the retirement village. (10) An audit required under this section must be conducted in accordance with any requirements prescribed by the regulations. (11) In this section— management expenditure means expenditure by a retirement village towards management fees or administrative costs and includes any expenditure of a kind prescribed by the regulations for the purposes of this definition. 34—Proceedings at meetings (1) This section applies to a meeting convened under section 33. (2) The operator must ensure that— (a) residents have a reasonable opportunity to put questions to the operator or its representative at a meeting of residents convened by the operator; and (b) questions submitted in writing under section 33(6)(b), or asked at a meeting, are answered— (i) if possible—in reasonable detail at the relevant meeting; or (ii) to the extent that compliance with subparagraph (i) is not possible—within 10 business days after the meeting by the presentation of detailed written answers. (3) The convener of a meeting must cause accurate minutes to be kept of proceedings at the meeting. (4) The minutes of a meeting must, within 10 business days after the meeting— (a) in the case of an annual meeting—be provided, in writing, to each resident; or (b) in any other case—be made available for inspection by residents in a manner that is easily accessible by residents. (5) If a question asked by a resident is answered at a meeting and the resident requests the answer to be provided in writing, the operator must ensure that a detailed written answer is provided to the resident within 10 business days after the meeting. (6) Nothing in this section requires an operator, or the representative of an operator, to answer an unreasonable question. (7) Recurrent charges cannot be increased beyond a level shown to be reasonable in view of the accounts for the previous year, and the estimates for the current financial year, as explained at a meeting of residents. (8) A special levy may not be imposed on residents of a retirement village unless authorised by special resolution passed at a meeting of residents. (9) Subject to subsection (11)— (a) each resident present at a meeting of residents has 1 vote on any question arising for decision at the meeting; and (b) a resident may exercise an absentee vote on a question arising for decision at the meeting by giving the operator written notice of the proposed vote at least 24 hours before the time of the meeting. (10) A decision at a meeting is to be determined by a simple majority of the votes cast by the residents voting at the meeting (in person or by absentee vote). (11) If 2 or more residents are in occupation of the same residence in a retirement village only 1 of them may exercise a vote at a meeting of the residents and if more than 1 purport to vote, the person presiding at the meeting may determine which vote is to be recognised. 35—Offences relating to meetings (1) An operator who fails to comply with section 33(6) is guilty of an offence. Maximum penalty: $10 000. Expiation fee: $315. (2) If— (a) any other requirement of section 33; or (b) any requirement of section 34, applying to the operator of a retirement village is not complied with, the operator is guilty of an offence. Maximum penalty: $10 000. Expiation fee: $315. 36—Consultation with new operator (1) It will be a term of every agreement that will result in a change in the operator of a retirement village (including a change by virtue of the sale of an interest in the land within the village) that, before the change is effected, the person who is to be the new operator will convene a meeting of residents under this section at which the person (or his or her representative) will— (a) present a report on any changes that are proposed for the retirement village (including any proposal to change a charge, fee or levy payable by residents), and his or her plans for the future management and operation of the retirement village; and (b) answer any reasonable question put by a resident. (2) A meeting will be convened by sending to each resident, at least 10 business days before the date of the meeting, a written notice setting out— (a) the time and place of the meeting; and (b) the reason for the meeting. (3) If a change in an operator of a retirement village is effected by an agreement without compliance with the term referred to in subsection (1), the person who is the new operator is guilty of an offence. Maximum penalty: $10 000. 37—Consultation about village redevelopment (1) It will be a term of every residence contract that, before any redevelopment of a retirement village is commenced, the operator will convene a meeting of residents under this section at which the operator will— (a) present a plan of, and report on, the proposed redevelopment; and (b) answer any reasonable question put by a resident. (2) A meeting will be convened by sending to each resident, at least 10 business days before the date of the meeting, a written notice setting out— (a) the time and place of the meeting; and (b) the reason for the meeting. (3) Redevelopment cannot take place unless the operator has given due consideration to a resident's rights arising from his or her residence contract and, if relevant, reasonable arrangements have been put in place with respect to the provision of alternative accommodation. (4) If redevelopment that would have a significant effect on a resident's rights arising from his or her residence contract occurs without compliance with the term referred to in subsection (1), the operator is guilty of an offence. Maximum penalty: $10 000. Division 4—Residents' committees 38—Residents' committees (1) The residents of a retirement village may elect a residents' committee. (2) The function of a residents' committee is to consult with the operator of the retirement village, or a representative of the operator, in relation to matters of interest to residents and to represent the interests of the residents. (3) Only 1 residents' committee may be established in a retirement village and only a resident of the retirement village may be a member of such a committee. (4) If more than 1 body or committee (regardless of its name) purports to be the residents' committee in a particular retirement village, the operator or a resident of the village may apply to the Tribunal for (and the Tribunal may make) an order determining which body or committee (if any) is the residents' committee for the village. (5) Each member of a residents' committee will hold office for 1 year from election but is eligible for re‑election. (6) A member may be removed from office by a special resolution at a meeting of the residents. (7) The members of a residents' committee must ensure that the operator is provided with sufficient information about the membership of the committee and the manner in which the operator may contact members of the committee (or a representative or representatives of the committee). (8) If subsection (7) is not complied with, each member of the residents' committee is guilty of an offence. Maximum penalty: $1 500. Expiation fee: $105. (9) Subject to the regulations, a residents' committee may— (a) determine its own procedure; and (b) appoint sub-committees and determine their procedures. (10) An operator must not— (a) discourage or prevent the appointment of a committee under this section; or (b) obstruct a committee in the performance of its functions. Maximum penalty: $2 500. (11) If a residents' committee reasonably requests a meeting with the operator by written notice setting out the time, place and business agenda of the meeting, the operator must attend the meeting (or ensure that a representative of the operator authorised to speak on behalf of the operator attends the meeting). Maximum penalty: $2 500. (12) If an operator reasonably requests a meeting with the members of a residents' committee (or a representative or representatives of a residents' committee) by written notice setting out the time, place and business agenda of the meeting, the members of the residents' committee (or a representative or representatives of the residents' committee) must attend the meeting. (13) If a contravention of subsection (12) occurs, each member of the residents' committee who is in default is guilty of an offence. Maximum penalty: $2 500. (14) A member of a residents' committee incurs no civil liability for an act or omission in good faith in the exercise of functions under this section. (15) The regulations may make provision for or with respect to the election, functions and procedure of residents' committees and sub‑committees including, without limitation— (a) imposing requirements in relation to the holding of meetings of residents under Division 3 for purposes relating to a residents' committee; and (b) prescribing model rules that may be adopted by a residents' committee; and (c) imposing requirements in relation to record keeping, audit or other matters relating to a residents' committee. 39—Mandatory consultation with residents' committee in relation to annual budget (1) Subject to subsection (2), if— (a) there is a residents' committee in relation to a retirement village; and (b) the committee has provided the operator with the information referred to in section 38(7), the operator must, before any annual meeting is held, convene at least 2 meetings with the members of the residents' committee to discuss the matters set out in section 33(6)(a). (2) However, the meetings, or either 1 of the meetings, required by subsection (1) need not be convened if the residents' committee has advised the operator, in writing, that it does not require the meetings or meeting (as the case may be) to be held. (3) A meeting required under this section will be convened by sending to each member of the residents' committee, at least 10 business days before the date of the meeting, a written notice setting out the time, place and business agenda of the meeting. (4) A meeting under this section must be chaired by the operator or by a representative of the operator who is authorised to speak on behalf of the operator and to give responses to questions put at the meeting in accordance with the requirements of this section. (5) The operator must ensure that— (a) members of the residents' committee have a reasonable opportunity to put questions to the operator or its representative at a meeting under this section; and (b) questions asked at a meeting under this section are answered— (i) if possible—in reasonable detail at the relevant meeting; or (ii) to the extent that compliance with subparagraph (i) is not possible—before the holding of the annual meeting, either at a subsequent meeting under this section or by the presentation of de