Retirement Villages Act 1999 (NSW)

Retirement Villages Act 1999 No 81 An Act to set out particular rights and obligations of residents and operators of retirement villages; to establish mechanisms for the resolution of certain disputes between residents and operators of retirement villages; to repeal the Retirement Villages Act 1989; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Retirement Villages Act 1999. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by this section. (2) Clause 14 of Schedule 4 commences on the date of assent to this Act. 3 Objects of Act The objects of this Act are— (a) to set out particular rights and obligations of residents and operators of retirement villages, and (b) to facilitate the disclosure of information to prospective residents of retirement villages, and (c) to require contracts between residents and operators of retirement villages to contain full details of the rights and obligations of the parties, and (d) to facilitate resident input, where desired by residents, into the management of retirement villages, and (e) to establish appropriate mechanisms for the resolution of certain disputes between residents and operators of retirement villages, and (f) to encourage the retirement village industry to adopt best practice management standards. 4 Definitions (1) In this Act— accounts of a retirement village means the accounts referred to in Division 6 of Part 7. annual management meeting means the meeting referred to in section 72A. approved annual budget means a budget taken to be an approved annual budget under section 116. association and association property have the same meanings as they have in the Community Land Management Act 2021. business day means a day that is not— (a) a Saturday or Sunday, or (b) a public holiday or bank holiday throughout the State. capital maintenance means works carried out for the purpose of repairing or maintaining an item of capital and includes works prescribed by the regulations as being capital maintenance, but does not include works that are prescribed by the regulations as not being capital maintenance. capital replacement means works carried out for the purpose of replacing an item of capital, but does not include capital maintenance. capital works fund means a fund established under section 99. close associate of an operator of a retirement village means— (a) if the operator is a natural person— (i) the spouse, de facto partner, parent, child or sibling of the operator, or (ii) the parent, child or sibling by marriage of the operator, or (iii) a body corporate of which the operator (or the operator's spouse, de facto partner, parent, child or sibling, or the operator's parent, child or sibling by marriage) is a director or secretary, and (b) if the operator is a body corporate— (i) a director or secretary of the body corporate or of a related body corporate (within the meaning of the Corporations Act 2001 of the Commonwealth), or (ii) the spouse, de facto partner, parent, child or sibling (or the parent, child or sibling by marriage) of such a director or secretary, or (iii) a related body corporate, and (c) in either case—an agent or employee of the operator. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. community land scheme means a scheme (other than a strata scheme) within the meaning of the Community Land Management Act 2021. company title scheme means a scheme under which a group of adjoining or adjacent premises (including residential premises) is owned or leased by a corporation each of whose shareholders has, by virtue of his or her shares, an exclusive right (under a lease or otherwise) to occupy one or more of the residential premises. condition report means a report referred to in section 38. Consumer Price Index means the Consumer Price Index (All Groups) for Sydney as published by the Australian Statistician. de facto relationship has the same meaning as it has in the Property (Relationships) Act 1984. departure fee—see section 156. development and development consent have the same meanings as they have in the Environmental Planning and Assessment Act 1979. disclosure statement means a statement referred to in section 18 (3A). exercise a function includes perform a duty. financial year of a retirement village is the period determined under section 91. former occupant of a retirement village means a resident, or a former resident, of the village— (a) who has permanently vacated any residential premises in the village, and (b) whose residence contract has been terminated (unless the resident is a registered interest holder (other than a person referred to in section 7 (1) (c)) in respect of the residential premises concerned), and (c) who continues to have rights or liabilities under a village contract relating to the village, and includes, except in Part 10AA, the executor or administrator of the estate of such a person. function includes a power, authority or duty. general inquiry document means a document referred to in section 18 (2). general services means services provided, or made available, by or on behalf of the operator, to all residents of a retirement village, and includes such services as may be prescribed by the regulations for the purposes of this definition. Note— Examples of general services are management and administration services and gardening and general maintenance. holding deposit means money paid to the operator of a retirement village in consideration for not offering particular residential premises in the village to any other person pending a prospective resident's entering into a residence contract with the operator. ingoing contribution—see section 6. investigator means an investigator appointed under the Fair Trading Act 1987. item of capital means— (a) any building or structure in a retirement village, and (b) any plant, machinery or equipment used in the operation of the village, and (c) any part of the infrastructure of the village, and (d) any other item prescribed by the regulations, but does not include any item excluded from this definition by the regulations. licensed conveyancer means the holder of a licence in force under the Conveyancers Licensing Act 2003. operator of a retirement village means the person who manages or controls the retirement village, and includes— (a) a person (other than a resident or other person referred to in subsection (2)) who owns land in the village, and (b) any other person or class of persons prescribed by the regulations for the purposes of this definition, but does not include— (c) the relevant association of a community land scheme or the owners corporation of a strata scheme, or (d) the managing agent of such a scheme, or (e) any person or class of persons excluded from this definition by the regulations. optional services means optional services made available, by or on behalf of the operator, to individual residents of a retirement village, and includes such services as may be prescribed by the regulations for the purposes of this definition. Note— Examples of optional services are the provision of meals, laundry services and the cleaning of the residents' residential premises. proposed annual budget means a proposed annual budget referred to in section 112. prospective resident of a retirement village means a person who indicates (or on whose behalf it is indicated) to the operator of the village that he or she is (or might be) interested in becoming a resident of the village. proxy of a resident of a retirement village means a person appointed by the resident for the purpose of voting on the resident's behalf at meetings of residents. public holiday means a day appointed under the Public Holidays Act 2010 or another Act as a public holiday. recurrent charge means any amount (including rent) payable under a village contract, on a recurrent basis, by a resident of a retirement village. Note— Levies payable under a community land scheme or strata scheme are not recurrent charges (because they are not payable under a village contract). Register means— (a) in relation to land under the Real Property Act 1900—the Register kept under that Act, and (b) in relation to any other land—the General Register of Deeds kept under the Conveyancing Act 1919. relative of a person means— (a) the person's grandparent, parent, sibling or child, and (b) the person's grandparent, parent, sibling or child by marriage, and (c) the person's step-grandparent, step-parent, step-brother, step-sister or step-child, and (d) the person's aunts and uncles. rescission notice means a notice under section 32 or 33. residence contract means a contract that gives rise to a residence right. residence right of a person means the person's right to occupy residential premises in a retirement village, being a right arising from a contract— (a) under which the person purchased the residential premises, or (b) under which the person purchased shares entitling the person to occupy the residential premises, or (c) in the form of a lease, licence, arrangement or agreement of any kind, other than a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010— (i) that is entered into under Division 5 of Part 10, or (ii) that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement, or (d) in the form of any other contract of a kind prescribed by the regulations, or any other right of a kind prescribed by the regulations. Note— See also subsection (2). resident of a retirement village means a retired person who has a residence right in respect of residential premises in the village and includes the following persons (each of whom is taken also to have a residence right in respect of the residential premises concerned)— (a) the spouse of the retired person, if the spouse occupies the residential premises with the retired person, (b) if the retired person is in a de facto relationship—the other party to that relationship, if the other party occupies the residential premises with the retired person, (c) any person or class of persons prescribed by the regulations for the purpose of this definition, (d) in Parts 6, 7 and 8 and Division 5 of Part 10—a former occupant of the retirement village. residential aged care facility means any residential accommodation for retired people that includes— (a) meals and cleaning services, and (b) personal care or nursing care, or both, and (c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care. residential premises means any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence. residential tenancy agreement has the same meaning as it has in the Residential Tenancies Act 2010. Residents Committee means a committee established under section 70. retired person means a person who has reached the age of 55 years or has retired from full-time employment. retirement village—see section 5. Secretary means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Customer Service. service contract means a contract under which a resident of a retirement village is provided with general services or optional services in the village. special resolution means a resolution described in Part 3 of Schedule 1. strata scheme has the same meaning as it has in the Strata Schemes Management Act 2015. tenant means a person who has the right to occupy residential premises under a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010— (a) that is entered into under Division 5 of Part 10, or (b) that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement. Note— A tenant is not a resident. Tribunal means the Civil and Administrative Tribunal. village contract means— (a) a residence contract, or (b) a service contract, or (c) a contract under which a resident of a retirement village obtains the right to use a garage or parking space, or a storage room, in the village, or (d) any other contract of a kind prescribed by the regulations for the purpose of this definition. Note— A residence contract, a service contract and any other village contract may be contained in a single document. village rules means the rules made and in force from time to time under Division 1 of Part 6. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) For the purposes of the definition of residence right in subsection (1), it does not matter that the person who obtains the right— (a) is a corporation, if the premises concerned are intended for use as a residence by a natural person, or (b) obtains it for the purpose of allowing another person to live in the residential premises (instead of the person who obtained the right), and in those cases, a retired person who lives in the premises with the consent of the corporation or of the person (as the case may be) is taken to have the residence right. Note— Subsection (2) would apply in the case, for example, of a person who buys a strata-titled unit in a retirement village for the person's parent to live in. (3) In this Act, a reference to the sale, the sale price, or a contract for the sale, of residential premises in a retirement village that were or are to be occupied under a company title scheme is taken to be a reference to the sale, the sale price, or a contract for the sale, of the residence right in respect of the premises. (4) It is sufficient compliance with the requirements of this Act if— (a) an agent of the operator of a retirement village exercises the functions of the operator under this Act or the regulations, and (b) any notice or other document required to be given to the operator under this Act or the regulations is given to an agent of the operator. (5) If there is more than one operator for a retirement village, it is sufficient compliance with the requirements of this Act if— (a) any of the operators exercises the functions of an operator under this Act or the regulations, and (b) any notice or other document required to be given to the operator under this Act or the regulations is given to any of the operators. (6) A reference in this Act to an operator of a retirement village extends to the operator for the time being. 5 Meaning of "retirement village" (1) For the purposes of this Act, a retirement village is a complex containing residential premises that are— (a) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons who have entered into village contracts with an operator of the complex, or (b) prescribed by the regulations for the purposes of this definition. (2) It does not matter that some residential premises in the complex may be occupied by employees of the operator or under residential tenancy agreements containing a term to the effect that this Act does not apply to the premises the subject of the agreement (instead of being occupied under residence contracts), or that those premises do not form part of the retirement village. (3) However, a retirement village does not include any of the following— (a) any building or any part of a building used or intended to be used for the provision of residential care, within the meaning of the Aged Care Act 1997 of the Commonwealth, by an approved provider under that Act, Note— Paragraph (a) excludes from the definition of retirement village buildings that are commonly known as Commonwealth-subsidised hostels and nursing homes. (b) a nursing home within the meaning of the Public Health Act 2010, (c) any building or part of a building intended to be used for the provision of respite care (within the meaning of Aged Care Act 1997 of the Commonwealth), (d) a community within the meaning of the Residential (Land Lease) Communities Act 2013, (e) any residential premises the subject of a residential tenancy agreement to which the NSW Aboriginal Housing Office or the New South Wales Land and Housing Corporation is a party, (f) a boarding-house or lodging house, (g) any accommodation provided in a complex for employees of the complex who are not residents of the retirement village, (h) any residential premises the subject of a residential tenancy agreement in the form prescribed under the Residential Tenancies Act 2010 to which the operator of a retirement village is a party and that contains a term to the effect that this Act does not apply to the residential premises the subject of the agreement, (i) any other place or part of a place excluded from this definition by the regulations. 6 Meaning of "ingoing contribution" (1) For the purposes of this Act, an ingoing contribution is— (a) any money payable to the operator under a residence contract, or (b) any other money, regardless of how it is described, that is paid to the operator of a retirement village in consideration for, or in contemplation of, the person by whom (or on whose behalf) the payment was made becoming a resident of the village, regardless of whether the payment is made in a lump sum or by instalments. (2) Despite subsection (1), an ingoing contribution does not include any of the following— (a) a waiting list fee referred to in section 21, (b) recurrent charges, (c) if the resident is the registered proprietor of land, the owner of a lot in a strata scheme or the proprietor of a lot in a community land scheme on which the residential premises are located—the purchase price of the land or lot, (c1) if the person is the owner of shares in a company title scheme that give rise to a residence right in respect of the premises—the purchase price of the shares, (d) any other payment of a kind prescribed by the regulations. 7 Meaning of "registered interest holder" (1) For the purposes of this Act, a person is the registered interest holder with respect to residential premises in a retirement village if— (a) the person is— (i) the registered proprietor of land, or (ii) the owner of a lot in a strata scheme, or (iii) the proprietor of a lot in a community land scheme, within a retirement village and as such has a residence right in respect of residential premises within the retirement village, or (b) the person is the owner of shares in a company title scheme that give rise to a residence right in respect of residential premises within a retirement village, or (c) the person's residence contract is in the form of a registered long-term lease that includes a provision that entitles the person to at least 50% of any capital gain. (2) In this section— registered long-term lease means a lease registered under the Real Property Act 1900 that— (a) has a term of at least 50 years (including any option to renew), or (b) is for the life of the lessee. 7A Meaning of "capital gain" (1) In this Act, capital gain, in relation to a resident's entitlement under a residence contract or the sharing of a capital gain under a village contract between the operator and a resident, means any increase between the amount that the resident paid for the residence right for the relevant premises and the amount that the next resident pays for a residence right for the same premises, less any costs associated with the subsequent sale or lease of the premises. (2) Fees and charges payable under a village contract are not to be included in the calculation of the capital gain. 8 "Permanent vacation" of residential premises For the purposes of this Act, a person is taken to have permanently vacated residential premises in a retirement village when— (a) the person (or another person on behalf of the person) delivers up vacant possession of the person's residential premises to the operator of the village following the person's vacation of the premises, or (b) the executor or administrator of the person's estate delivers up vacant possession of the person's residential premises to the operator of the village following the person's death, or (c) the Tribunal makes an order under section 143 declaring that the person's residential premises were abandoned by the person (and the person is taken to have permanently vacated the premises on the day specified in the order), or (d) if the person is a registered interest holder in relation to residential premises or is taken to be a resident of the premises by the operation of section 4 (2)— (i) the person dies or moves out of the premises, or (ii) for the purposes of the payment of recurrent charges under section 152—the person moves out of the premises or the executor or administrator of the person's estate delivers up vacant possession of the person's residential premises to the operator of the retirement village following the person's death. 9 "Consent" of residents (1) Schedule 1 provides for the way in which the residents of a retirement village give their consent to a proposed measure or action relating to the village for the purposes of this Act or the regulations. (2) If a resident or the operator of a retirement village considers that— (a) the residents' consent to a particular measure or action has been obtained otherwise than as provided for by Schedule 1, or (b) the votes of the residents were inaccurately counted, the resident or operator concerned may apply to the Tribunal for an order as to the validity of the consent. (3) On an application made to it under this section, the Tribunal may make an order— (a) declaring the consent to have been validly obtained, or (b) voiding the purported consent and directing that the residents vote again on the proposed measure or action. 10 Notes Notes included in this Act are explanatory notes and do not form part of this Act. Part 2 Application of Act 11 Application of Act (1) This Act applies to all retirement villages (whether established before or after the commencement of this section) and so applies despite the terms of any contract, agreement, scheme or arrangement (whether made or entered into before or after the commencement of this section). (2) This Act extends to apply to and in respect of— (a) a retired person who continues to occupy residential premises in a former retirement village that was a retirement village when the retired person took up residence in the premises, and (b) a retired person who has a right to occupy residential premises in a former retirement village that was a retirement village when the right was obtained, and (c) a former resident of a former retirement village who continues to have rights or liabilities under the contract, agreement or arrangement under which he or she occupied (or had the right to occupy) the residential premises in the former retirement village when it was a retirement village, and (d) the person who is the other party to the contract, agreement or arrangement under which the retired person occupies or occupied (or has or had the right to occupy) the residential premises in the former retirement village, even though the former retirement village is no longer a retirement village. (3) However, this Act does not so apply in respect of any place or part of a place referred to in section 5 (3). (4) The regulations may prescribe other modifications to the application of this Act for the purposes of this section. (5) For the purposes of this Act— (a) a reference in this Act to a resident of a retirement village includes a reference to a person described in subsection (2) (a), (b) or (c), and (b) a reference in this Act to the operator of a retirement village includes a reference to the person referred to in subsection (2) (d). (6) In this section, former retirement village means a complex that was previously, but is no longer, a retirement village within the meaning of this Act (even if it ceased to be such a retirement village before the commencement of this Act). 12 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. 13 Effect of Act on other legislation (1) This Act is to be construed as being in addition to, and not in derogation of, any other law of the State, except as otherwise provided by this Act. (2) The Landlord and Tenant Act 1899, the Landlord and Tenant (Amendment) Act 1948 and Part 8 of the Residential Tenancies Act 2010 do not apply to or in respect of residential premises the subject of a residence contract under this Act. Part 3 Representations and information about retirement villages 14 Development consent If development consent is required before development for the purposes of a retirement village can be carried out, a person must not— (a) advertise, or otherwise promote, the proposed village, or (b) advertise the sale of residential premises (or the right to occupy residential premises) in the proposed village, before the consent has been obtained. Maximum penalty—100 penalty units. 15 Approvals for certain facilities The operator of a retirement village (or a person intending to carry out development for the purposes of such a village) must not advertise or otherwise represent that a residential aged care facility is (or will be) associated with the village or the proposed village unless all authorisations required by law for the residential aged care facility concerned have been obtained. Maximum penalty—100 penalty units. 16 Exceptions to prohibitions on advertising A person is not guilty of an offence under section 14 or 15 merely because the person— (a) carries out market surveys in relation to a proposed retirement village before the relevant development consent is obtained, or (b) carries out market surveys in relation to a proposed residential aged care facility in connection with a retirement village before obtaining the requisite authorisations, or (c) gives public notice of, or otherwise advertises, a development application relating to a proposed retirement village or a proposed residential aged care facility in accordance with the requirements of the Environmental Planning and Assessment Act 1979. 17 Representations about retirement villages (1) A person who manages or controls a complex containing residential premises must not knowingly represent that the complex is a retirement village unless the complex is a retirement village within the meaning of this Act. Maximum penalty—50 penalty units. (2) The operator of a retirement village must not make a representation to a prospective resident knowing that it is inconsistent with the information contained in the disclosure statement provided to the prospective resident. Maximum penalty—50 penalty units. (3) The operator of a retirement village must not knowingly represent to a prospective resident that a particular service or facility is provided to or available at the village or to the residents, or is associated with the village, unless the service or facility is so provided or made available or associated. Maximum penalty—50 penalty units. (4) If the operator of a retirement village represents to a prospective resident of the village that a service or facility is to be provided to or made available by the operator at the village or to the residents in the future, the operator must ensure that a village contract entered into by that person and the operator specifies the service or facility concerned and the date by which it is to be provided or made available. Maximum penalty—50 penalty units. (5) The resident concerned may apply to the Tribunal for (and the Tribunal may make) an order that the operator pay compensation to the resident if the service or facility concerned is not provided or made available— (a) by the date specified in the village contract, or (b) if the village contract (in contravention of subclause (4)) does not specify the date—within a reasonable time. (5A) The operator of a retirement village must not publish or distribute written promotional material that makes a representation in relation to the retirement village of a kind prescribed by the regulations. Maximum penalty—50 penalty units. (6) For the purposes of this section, a representation made by an agent or employee of the operator of a retirement village is taken to be a representation of the operator unless the operator establishes, to the satisfaction of the Tribunal or court, that, in making the representation, the agent or employee was acting otherwise than in his or her capacity as the operator's agent or employee. Note— Any advertising, and promotional and sales material, relating to a retirement village must also comply with the Fair Trading Act 1987 and the Competition and Consumer Act 2010 of the Commonwealth. 18 General inquiry document and disclosure statement concerning retirement village (1) The operator of a retirement village must provide a person with a general inquiry document within 14 days after becoming aware that the person is a prospective resident or is acting on behalf of a prospective resident. (2) A general inquiry document is to give a basic explanation of the residential premises, services and facilities that are available within a retirement village, and must— (a) be in the form prescribed by the regulations, and (b) contain the information prescribed by the regulations. (3) The operator of a retirement village must provide a disclosure statement to a prospective resident, or person acting on behalf of a prospective resident, who— (a) requests a copy, or (b) expresses an interest in particular premises within the retirement village, within 14 days after the request is received or the expression of interest is made. Maximum penalty—20 penalty units. (3A) A disclosure statement is to give specific details of particular residential premises in a retirement village (including details of the fees and charges that will be payable by the resident of the premises) and must— (a) be in the form prescribed by the regulations, a