Retirement Villages Act 2004 (Tas)

Retirement Villages Act 2004 An Act to regulate retirement villages and the rights and obligations of their operators and all persons residing in those villages and to amend the Consumer Affairs Act 1988 , the Residential Tenancy Act 1997 and the Strata Titles Act 1998 [Royal Assent 17 December 2004] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Retirement Villages Act 2004 . 2. Commencement This Act commences on a day to be fixed by proclamation which is not to be earlier than 1 July 2005. 3. Interpretation In this Act, unless the contrary intention appears – accounts, in respect of a retirement village, means a document giving full details of the income and expenditure of the retirement village during the preceding financial year or, as the case may require, since the date when it commenced to operate as such; approved form means a form approved by the Recorder; business day means any day except a Saturday, Sunday or public holiday; commencement date means the date of commencement of this Act; Director means the Director of Consumer Affairs and Fair Trading; ingoing contribution has a meaning given by section 4 ; operator of a retirement village means a person who, alone or with another person, controls the operation of a retirement village or purports to control its operation; personal service means an optional service provided or made available, by or on behalf of an operator, to individual residents of a retirement village; prospective resident means a person carrying on any negotiations or dealings with the operator of a retirement village with a view to becoming a resident; Recorder means the Recorder of Titles; Register means the Register kept under the Land Titles Act 1980 ; regulations means regulations made and in force under this Act; residence contract means a contract under which a person pays an ingoing contribution and enters into occupation of any residential premises; resident of a retirement village means a person who has paid an ingoing contribution in respect of any residential premises in that retirement village and includes a spouse of any such person who – (a) is residing with that person; or (b) was residing with that person at the time of that person's death – whether or not that person has entered into occupation of any such premises; residential premises means premises, or a part of premises, in a retirement village designed for separate occupation as a place of residence; retired person means a person who has attained the age of 55 years and retired from full-time employment; retirement village means a complex of residential premises, including adjacent land, established for retired persons and their spouses, or predominantly for retired persons and their spouses, at least one of whom, before or on becoming a resident, pays or is required to pay an ingoing contribution, where – (a) the residential premises are occupied by virtue of a residence contract, lease or written licence; or (b) a right of occupation of the residential premises is conferred by ownership of shares; or (c) the residential premises are purchased from the operator subject to a right or option of repurchase; or (d) the residential premises are purchased by prospective residents on conditions restricting their subsequent disposal – but does not include – (e) a complex of residential premises to which this Act does not apply as mentioned in section 5(2) ; or (f) a complex of residential premises or class of residential premises which under the regulations is excluded from the application of this Act; service contract means a contract under which a resident of a retirement village is provided with general services or personal services in the village; special resolution means a resolution passed at a meeting of residents and tenants of a retirement village if – (a) written notice of the meeting, containing a statement of the proposed resolution, has been given to all residents and tenants for a period of at least 10 business days; and (b) the resolution has been passed by a majority of not less than three-quarters of the number of residents and tenants voting either personally or by proxy and entitled to vote at the meeting; spouse, in relation to a person, includes the person who is or was in a significant relationship, within the meaning of the Relationships Act 2003 , with that person; strata scheme means – (a) a strata scheme; or (b) a staged development scheme; or (c) a community development scheme – within the meaning of the Strata Titles Act 1998 ; tenant means a person, other than a resident, who has a right to occupy any residential premises; Tribunal means the Tasmanian Civil and Administrative Tribunal; village rules means the rules made under Part 4 . 4. Meaning of "ingoing contribution" (1) For the purposes of this Act, an ingoing contribution is taken to be a payment, including a gift or bond, made to the operator of a retirement village in consideration for, or in contemplation of, admission of the person by or on whose behalf the payment was made as a resident of the retirement village and includes any such payment made for the purchase of – (a) any residential premises in the retirement village; or (b) the issue or assignment of shares conferring a right of occupation of any such residential premises – but does not include – (c) a bond paid under the Aged Care Act 1997 of the Commonwealth; or (d) recurrent charges. (2) Subsection (1) applies to a payment whether or not the whole or any part of it is expressed to be for rent in advance. 5. Application of Act (1) Subject to this section – (a) this Act applies to retirement villages, whether established before or after the commencement date, and to the operators, residents and tenants of those villages; and (b) this Act binds the Crown in right of the State of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities, but not so as to impose criminal liability on the Crown. (2) Where no resident or prospective resident is required to pay an ingoing contribution, this Act does not apply to the retirement village unless the owner of the relevant land, by an application to the Recorder in an approved form and on payment of the prescribed fee, elects that this Act is to apply to the retirement village. (3) This Act does not apply to any building or any part of a building in a retirement village that is 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. (4) If a provision of this Act is inconsistent with a provision of the Strata Titles Act 1998 , the provision of this Act prevails to the extent of the inconsistency. PART 2 - Rights of residents 6. Creation of residence rights (1) A residence contract is to be in writing and comply with the requirements specified in Schedule 1 . (2) A residence contract may have effect notwithstanding Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 . (3) Before a person enters into a residence contract, the operator must give to that person – (a) a copy of the proposed residence contract in a form ready for execution; and (b) a notice of the person's rights under this Act in accordance with Schedule 2 ; and (c) a copy of the village rules required under section 21 ; and (d) a check list in accordance with Schedule 3 ; and (e) a copy of the accounts and estimates presented at the last annual general meeting of residents and tenants, including a written statement of any subsequent change in the affairs of the retirement village and the operator that may significantly affect the person's decision to occupy residential premises in the retirement village; and (f) any other prescribed documents. (4) If an operator is unable to comply with subsection (3)(e) because the retirement village was not operating at any time in the previous financial year, he or she must give to a person entering into a residence contract statements and information in accordance with section 14(5)(b) , (c) and (d) . (5) A representation made by an employee or agent of an operator is taken to be a representation of the operator unless the operator proves that the employee or agent was not acting in the course of his or her employment or agency. (6) If a residence contract is signed without provision of the documents referred to in subsection (3) or (4) , termination of the contract does not render the resident or prospective resident liable to any financial penalty. (7) Without limiting any right of rescission conferred by law, a resident or prospective resident is entitled to rescind the residence contract – (a) at any time within 5 business days after the date of the contract; or (b) on a contravention of subsection (3) or (4) , within 5 business days after the day on which any of the documents required under that subsection is given to the resident or prospective resident. (8) A contract may be rescinded under this section by notice in writing to the operator. (9) If a provision of this section is contravened, the operator is guilty of an offence. Penalty: Fine not exceeding 350 penalty units. 7. Requirement for resident to be retired (1) Notwithstanding the Anti-Discrimination Act 1998 , an operator may refuse to enter into a residence contract or service contract with a prospective resident or resident on the ground that he or she is not a retired person. (2) Subsection (1) does not apply to a resident or prospective resident who is not a retired person if he or she is the spouse of a retired person. 8. Termination of residence rights (1) A resident of any residential premises has a right of occupation that may not be terminated unless – (a) the resident dies; or (b) the resident terminates the residence contract; or (c) the resident ceases to reside in the retirement village in circumstances in which there is no reasonable prospect of him or her returning to reside in the retirement village; or (d) the resident commits a serious breach of the residence contract or the village rules and the operator terminates the resident's right of occupation; or (e) the residential premises become an unsuitable place of residence for the resident owing to the resident's mental or physical incapacity and the operator or resident terminates the resident's right of occupation on that ground as provided by subsection (3) ; or (f) the holder of a mortgage or charge that was in existence at the commencement date becomes entitled to vacant possession of the residential premises under rights conferred by the mortgage or charge; or (g) the resident and the operator agree on the termination. (2) The rights of termination under subsection (1)(a) , (b) , (d) or (e) are subject to – (a) any limitations or qualifications arising from a contract between the operator and the resident; and (b) any rights of the resident deriving from the resident's ownership of an interest in any residential premises. (3) If – (a) a resident vacates the retirement village owing to mental or physical illness or incapacity, as certified by – (i) an independent geriatrician or independent general medical practitioner who, in either case, is acceptable to both the resident and the operator; or (ii) an Aged Care Assessment Team or any similar assessment group established to replace Aged Care Assessment Teams; and (b) the resident desires, or needs, to move to another kind of accommodation which provides a higher level of care; and (c) the resident must pay an amount in order to enter that accommodation; and (d) the resident does not have ready access to funds of that amount, or the payment of that amount by the resident would have a serious effect on his or her personal finances; and (e) the resident has paid an ingoing contribution to the operator; and (f) the resident applies to the operator for repayment of the ingoing contribution – (i) before he or she vacates the retirement village; or (ii) within 10 business days after he or she vacates the retirement village – the operator must, within 45 business days or any extended period granted by the Director under section 13 , repay to the resident so much of the ingoing contribution as the resident requires to enter into that accommodation, and the balance of the ingoing contribution is to be paid in accordance with section 12 . Penalty: Fine not exceeding 350 penalty units. (4) A notice by the operator to terminate a resident's right of occupation is to be given to the resident but is of no effect unless it informs the resident – (a) of the reason for the termination; and (b) of any right of review provided by the village rules; and (c) that the decision is subject to a right of review by the Director on application in accordance with Part 5 . (5) A notice by a resident to terminate a right of occupation is to be given to the operator and is to state the reason for the termination. 9. Ingoing contributions (1) An ingoing contribution paid to an operator by any person is to be held in trust in an account with an authorised deposit-taking institution or in a form of investment in which trustees are authorised by law to invest trust money until – (a) the resident enters into occupation of any residential premises; or (b) it becomes apparent that the resident will not enter into occupation of any residential premises. (2) If the resident does not enter into occupation of any residential premises, any question affecting an entitlement to, or disposition of, the ingoing contribution is to be determined by reference to the residence contract, subject to the following qualifications: (a) if the resident's failure to enter into occupation is attributable to a failure on the part of the operator to carry out contractual obligations, interest and accretions arising from investment of the ingoing contribution must be paid to the resident; (b) in any other case, the operator is entitled to retain any such interest and accretions. (3) Subsection (2) does not affect any entitlement to rescind a residence contract that a resident may have under section 6(7) . (4) If a provision of this section is contravened, the operator is guilty of an offence. Penalty: Fine not exceeding 350 penalty units. 10. Contractual rights of residents (1) A service contract may be enforced against the operator of a retirement village. (2) Where an ingoing contribution is paid under a residence contract which provides that it will be repaid in whole or in part on the happening of a contingency and the contingency occurs, the resident or a person claiming under the residence contract may recover the amount that is repayable as a debt from the operator of the retirement village. (3) An action does not lie against the owner of land in a retirement village for the enforcement of rights under subsection (1) or (2) unless – (a) the owner is a party to the contract under which the ingoing contribution is repayable; or (b) the owner is the sole operator of the retirement village; or (c) an operator other than the owner has failed to satisfy a judgment given for the enforcement of those rights. (4) The rights of a resident to repayment of an ingoing contribution, or part of an ingoing contribution, are a charge on land in the retirement village other than – (a) any residential premises owned by a resident; or (b) common property that is subject to a strata scheme. (5) A charge referred to in subsection (4) may be enforced only with the approval of the Supreme Court and subject to any conditions that the Court thinks just and equitable. (6) If the Supreme Court approves the enforcement of the charge, it may, subject to any conditions imposed by the Court, be enforced in the same way as a mortgage registered under the Land Titles Act 1980 . 11. Arrangements if resident is absent or vacates (1) Where a resident has given to the operator at least 30 days' notice of any period during which he or she intends to be absent from the retirement village, the resident is not liable to pay any amount for any personal service that the operator ceases to provide to the resident in the resident's absence during that period. (2) Where – (a) a resident is absent from a retirement village for a continuous period of at least 30 days; and (b) has not given notice as mentioned in subsection (1) – the resident is not liable to pay, in respect of a period of absence after those 30 days, any amount for any personal service that the operator ceases to provide to the resident in the resident's absence during that period. (3) Where a resident vacates his or her residential premises in a retirement village, 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 operator ceases to provide to the resident after the resident vacates the residential premises. (4) If the resident is entitled to the repayment (in whole or in part) of an ingoing contribution, the resident is not liable to pay any amount in respect of charges for personal service that may accrue after he or she has ceased to reside in the retirement village until the ingoing contribution is repaid, but the operator may then, at the time of repayment, deduct from the ingoing contribution any amount payable by the resident. 12. Repayment of ingoing contribution Where a resident dies or vacates his or her residential premises in a retirement village, the operator must – (a) refund to the resident or the resident's personal representative any amount to which the resident is entitled within – (i) 6 months after the resident dies, or any extended period granted by the Director under section 13 ; or (ii) 6 months after the operator or resident receives notice of termination of the residence contract, or any extended period granted by the Director under section 13 ; or (iii) 30 days after the resale or reoccupation of the resident's residential premises – whichever first occurs; and (b) take all reasonable steps for resale or reoccupation of the residential premises. Penalty: Fine not exceeding 350 penalty units. 13. Serious financial hardship of operator If, on application by the operator, the Director is satisfied that – (a) the repayment required under section 8(3) ; or (b) the refund required under section 12(a)(i) or (ii) – would cause serious financial hardship to the operator if paid within the required period, the Director may extend that period for a further period not exceeding 12 months, either unconditionally or subject to any conditions considered appropriate in the circumstances of the case. 14. Meetings of residents and tenants (1) The operator of a retirement village – (a) may convene a meeting of residents and tenants at any time; and (b) must convene an annual general meeting of residents and tenants not later than 30 November in each year. (2) A representative of the operator who is authorised to speak on behalf of the operator must – (a) attend a meeting convened under subsection (1) ; and (b) give responses to questions put at the meeting in accordance with this section. (3) A meeting of residents and tenants may also be convened by a residents' and tenants' committee elected under section 16(1) . (4) A meeting is to be convened by notifying each resident and tenant at least 10 business days before the date of the meeting and the notice is to set out – (a) the time and place of the meeting; and (b) the business to be transacted at the meeting stating, in particular, the terms of any special resolution proposed to be put to the meeting. (5) A notice for an annual general meeting under subsection (1) is to be accompanied by – (a) if the retirement village was operating at any time during the previous financial year, a statement of income received from residents and tenants, and expenditure from that income, for the previous financial year; and (b) a statement of estimates of income from residents and tenants, and expenditure from that income, for the current financial year; and (c) a statement of estimates of income, from any source, and expenditure, for the current financial year in respect of any contingency, sinking or other reserve fund or account established for the purposes of capital replacement or improvements, irregular long-term maintenance or other similar items; and (d) such other information as the regulations may require; and (e) an invitation to residents and tenants – (i) to submit written questions to the operator at least 5 business days before the date of the meeting; and (ii) to ask any other questions at the meeting; and (f) a balance sheet for the retirement village together with a summary expressed in clear and simple terms of the general effect of the balance sheet. (6) A statement of income and expenditure under subsection (5)(a) is to be audited by a person who is a registered company auditor within the meaning of the Corporations Act or, as the case may require, approved to conduct an audit under section 24(1)(b) of the Associations Incorporation Act 1964 . (7) The operator must ensure that any resident or tenant is afforded, on reasonable request, a reasonable opportunity to inspect a balance sheet for the retirement village, together with a summary expressed in clear and simple terms of the general effect of the balance sheet. (8) The operator must ensure – (a) that residents and tenants have a reasonable opportunity to put questions to the operator or his or her representative at a meeting of residents and tenants convened by the operator; and (b) that questions submitted in writing under subsection (5)(e)(i) , 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, as soon as reasonably practicable after the meeting by the presentation of detailed written answers. (9) Nothing in this section requires an operator, or the representative of an operator, to answer an unreasonable question. (10) The operator of a retirement village must ensure that accurate minutes are kept of any meeting of residents and tenants convened by the operator. (11) Without limiting what may be recorded in the minutes of a meeting of residents and tenants, the operator of a retirement village must ensure that any minutes of a meeting kept under subsection (10) record – (a) any questions asked by residents and tenants at the meeting; and (b) any answers given by the operator, or a representative of the operator, to questions asked at the meeting; and (c) such other matters as may be prescribed. (11A) The operator of a retirement village must – (a) make any minutes kept under subsection (10) available for inspection by residents of the retirement village within 30 days after the day on which the meeting, to which the minutes relate, is held; and (b) arrange for the minutes to be adopted at the following meeting of residents and tenants convened by the operator. (12) In the case of a retirement village managed by a body corporate for a strata scheme, a meeting under this section may be held in conjunction with a meeting of the body corporate as required under the Strata Titles Act 1998 . (13) If a requirement of this section is contravened, the operator is guilty of an offence. Penalty: Fine not exceeding 200 penalty units. (14) Where 2 or more residents or tenants are in occupation of the same residential premises in a retirement village, each of them is entitled to vote at a meeting of residents and tenants. (15) A vote may be cast by proxy. 14A. Increase in recurrent charges (1) In this section – CPI figure for Hobart means the Consumer Price Index: All Groups Index Number for Hobart published by the Australian Statistician under the authority of the Census and Statistics Act 1905 of the Commonwealth. (2) The operator of a retirement village may not increase recurrent charges payable by the residents of that retirement village unless – (a) the operator submits, to a meeting of residents and tenants of that retirement village convened under section 14(1)(b) , a written explanation that demonstrates that the increase in recurrent charges is reasonable in the circumstances, having regard to the accounts for the previous financial year and the estimates for the current financial year; and (b) in a case where the increase in recurrent charges exceeds the CPI increase amount for those recurrent charges – (i) the increase is authorised at the meeting by a resolution passed by at least 65% of the residents and tenants voting, either personally or by proxy, and entitled to vote at the meeting; or (ii) the increase in excess of the CPI increase amount is attributable to any one or more of the following: (A) an increase in rates, taxes or charges payable under an Act in respect of the land in the retirement village; (B) an increase in the salaries or wages payable to the manager of the retirement village, or a person employed for the purposes of the retirement village's operation, as a consequence of a change in award, registered agreement or other industrial instrument; (C) an increase in insurance premiums, or insurance excesses paid, in relation to the retirement village or its use; (D) any other prescribed reason. (3) For the purposes of subsection (2)(b) , in determining any increase in recurrent charges payable in respect of a retirement village, an increase in a recurrent charge is only to be included to the extent that the increase is attributable to expenses relating to that retirement village. (4) For the purposes of this section, the CPI increase amount for recurrent charges is the amount of increase in the recurrent charges that would result from the recurrent charges being increased by the percentage change between – (a) the average of the CPI figures for Hobart in respect of the 4 quarters immediately preceding the meeting; and (b) the average of the CPI figures for Hobart in respect of the 4 quarters immediately preceding the 4 quarters referred to in paragraph (a) . (5) The operator of a retirement village must not increase, or attempt to increase, recurrent charges payable by a resident of the retirement village unless – (a) that increase is in accordance with this section; or (b) the Tribunal has ordered that the increase take effect under section 14B . Penalty: Fine not exceeding 200 penalty units. (6) Any increase in a recurrent charge by the operator of a retirement village that does not comply with this section is void and is not payable by the residents of the retirement village unless the Tribunal has ordered that the increase take effect under section 14B . 14B. Tribunal may order increase in recurrent charges in certain circumstances (1) The operator of a retirement village may make an application to the Tribunal for an order in respect of a proposed increase in recurrent charges payable by the residents of a retirement village if – (a) the proposed increase may only occur if authorised by a resolution under section 14A(2)(b) ; and (b) the proposed increase is put to a meeting of residents and tenants and the meeting does not pass a resolution authorising the increase. (2) An application to the Tribunal under subsection (1) must be made within 28 days after the operator of the retirement village becomes aware that the meeting referred to in subsection (1)(b) did not pass a resolution authorising the proposed increase. (3) The operator of a retirement village must, as soon as reasonably practicable after making an application for an order under subsection (1) , give each resident and tenant of that retirement village written notice of the making of that application. (4) The Tribunal may, on application made under subsection (1) – (a) order that the proposed increase is to take effect, with or without modification, from a date specified in the order; or (b) order that the proposed increase is not to take effect. (5) In determining an application made under subsection (1) , the Tribunal may have regard to the following: (a) the general market level of recurrent charges paid at similar retirement villages in the same or a similar locality as the retirement village; (b) the level and cost of services and facilities provided for in estimates of expenditure for the current financial year; (c) any proposed amendments (including additions) to the services and facilities to which the residents have consented or are considered necessary by the applicant; (d) the cost of general services required to be provided by the operator, including where the increase in the cost of general services is greater than the CPI increase amount for those services, as calculated in accordance with section 14A ; (e) the frequency and amount of past amendments of the recurrent charges; (f) previous agreement or support given by residents to future increases in recurrent charges necessitated by improvements made to the retirement village; (g) if the retirement village is subject to a strata scheme, the amounts of levies and other contributions payable by the residents under the Strata Titles Act 1998 ; (h) any other matter that the Tribunal considers relevant. (6) Subject to subsection (7) , the provisions of the Tasmanian Civil and Administrative Tribunal Act 2020 apply in relation to an application made to the Tribunal under this section. (7) Clauses 4, 5, 8, 9, 12 and 13 of Part 8 of Schedule 2 to the Tasmanian Civil and Administrative Tribunal Act 2020 do not apply in respect of proceedings relating to an application under this section. (8) For the avoidance of doubt, the making of an order by the Tribunal under this section is w