Retirement Villages Act 1999

• Operators: who must comply with extensive disclosure, contracting, management, and financial obligations.
• Residents and prospective residents: who are the primary beneficiaries of the Act's protections.
• Families of residents: who may assist residents in understanding their rights or may administer estates.
• NCAT (the Tribunal): which has jurisdiction to resolve disputes between residents and operators.
• The Secretary (the head of the relevant government department): who has functions under the Act including making exit entitlement orders (section 182AC) and receiving compliance reports.
• Financial institutions: that may hold residents' ingoing contributions in trust.
• Strata and community land schemes: that coexist with retirement village regulation where the village has such an ownership structure.

Pre-entry disclosure (Part 3):

• Operators must not advertise or promote a proposed village before development consent is obtained, or represent that a residential aged care facility is associated with the village before obtaining the requisite authorisations (sections 14-15).
• Operators must give prospective residents a disclosure document in the prescribed form before the contract is signed.

Contracts (Part 5):

• The operator must not permit a prospective resident to occupy residential premises before the resident enters into at least one written village contract (a residence contract or service contract) (section 24).
• Village contracts must be in writing and comply with the requirements of the Act.
• If a resident occupies without a contract, the former occupant has no liability for recurrent charges from that date, and the operator must make any refund due within one month (section 24(3)-(4)).

General management (Part 6):

• Village rules must be made available to residents.
• Village rules must be consistent with the Act and other applicable laws (section 47).
• Operators must hold annual management meetings (section 72A) and allow residents to form a residents committee.
• Operators must consult the residents committee on specified matters.

Financial management (Part 7):

• Operators must maintain a capital works fund for capital replacement (section 99).
• Operators must keep village accounts and make them available for inspection.
• Operators must prepare an annual budget and accounts in accordance with the Act.

Exit obligations:

• The operator must pay the exit entitlement to the resident (or estate) within the prescribed timeframe after the residence right terminates.
• Failure to pay within the timeframe may give rise to an exit entitlement order by the Secretary under section 182AC.

NCAT jurisdiction (Part 8): the Tribunal has very broad jurisdiction. A resident may apply to the Tribunal for an order in relation to a village contract that is harsh, oppressive, unconscionable, or unjust (section 123(1)). The Tribunal may make orders including: requiring compliance with contractual obligations; varying a contract; awarding compensation; appointing an administrator of the village; and terminating a residence contract (section 128 et seq).

Secretary's exit entitlement orders (section 182AC): the Secretary may make an order requiring the operator to pay the resident's exit entitlement if the operator has failed to pay within the prescribed timeframe. This provides an administrative remedy independent of NCAT proceedings.

Operator's discretion on village rules (Part 6 Division 1): the operator may make village rules on the prescribed subject matters, but the rules must be fair and not discriminatory. Residents may challenge unfair rules through NCAT.

Financial management discretions (Part 7): operators have discretion in managing the capital works fund and setting annual budgets, subject to the Act's requirements for transparency, consultation, and accounting standards.

The Act creates a range of offences with specific penalty amounts. Examples:

• Section 14 (advertising a proposed village before development consent): maximum 100 penalty units.
• Section 15 (representing that aged care is associated without the relevant authorisations): maximum 100 penalty units.
• Section 24(1) (permitting occupation without a contract): maximum 50 penalty units.

The Tribunal's broad order-making power under Part 8 provides the primary civil enforcement mechanism. The Secretary's exit entitlement orders under section 182AC provide administrative enforcement for unpaid exit entitlements.

Residence contract termination (section 129):

• For a registered interest holder (owner): the residence right terminates on completion of the sale or on payment of an exit entitlement order amount.
• For an assignable lease: terminates on assignment.
• For other residence contracts: terminates on the date the resident permanently vacates, which must be (except as otherwise provided) at least one month after written notice of intention to vacate. Can also terminate on death of the last surviving resident, disclaimer, Tribunal order, frustration, or abandonment.

Exit entitlement payment: the Act prescribes timeframes within which the operator must pay the exit entitlement after the residence right terminates. Failure to pay within the prescribed period may lead to a Secretary's exit entitlement order.

Annual management meeting (section 72A): must be held by the operator each year.

Capital works fund (section 99): must be established and maintained throughout the village's operation. The operator must prepare a capital works schedule and maintain the fund at the prescribed level.

NCAT dispute resolution: applications to the Tribunal may be made at any time. The Tribunal may determine whether to hold a hearing and may conduct hearings by audio link for NZ parties (referenced in the related Trans-Tasman legislation context).

Community Land Management Act 2021 (NSW): where part of a retirement village is subject to a community land scheme, the by-laws of that scheme apply to that part and the village rules in Division 1 of Part 6 do not apply (section 45).

Strata Schemes Management Act 2015 (NSW): where part of a village is subject to a strata scheme, the strata by-laws apply to that part in lieu of village rules (section 45).

Residential Tenancies Act 2010 (NSW): the Retirement Villages Act applies to retirement village residence contracts; the Residential Tenancies Act does not apply to such contracts unless expressly stated (section 24(2)(b) context). Some occupancies in retirement villages may be residential tenancies if the operator and resident enter into a residential tenancy agreement to which this Act does not apply.

Aged Care Act 1997 (Cth): operators of retirement villages that also have a residential aged care facility must hold the required aged care approvals before representing that aged care is associated with the village (section 15).

National Disability Insurance Scheme: retirement village residents who are NDIS participants may have rights under both this Act and the NDIS framework.

Retail Leases Act 1994 (NSW) and Conveyancing Act 1919 (NSW): interactions arise where retirement village tenure involves commercial leases or conveyancing of residential premises.

Source text duplication: the stored source text has 10 concatenated copies. Practitioners should use the NSW Legislation website version for definitive reference.

Contract type determines termination mechanism: the method of termination in section 129 differs depending on whether the resident is a registered interest holder, holds an assignable lease, or holds another form of residence right. Practitioners advising residents or operators on termination must identify the correct tenure category.

Exit entitlement timing obligations are strict: the Act imposes specific timeframes for payment of exit entitlements. The Secretary's order-making power under section 182AC means that operators who fail to pay face an administrative remedy as well as NCAT jurisdiction. Operators should ensure their systems track exit entitlement payment deadlines carefully.

Village rules are separate from, and subordinate to, the Act: village rules cannot override the Act or contradict its provisions. Rules that discriminate against residents, restrict lawful activities, or impose conditions beyond those authorised by the Act may be set aside by the Tribunal.

Capital works fund obligations are mandatory: operators must establish and maintain a capital works fund for capital replacement (section 99). Failure to do so is a breach of the Act and may expose operators to Tribunal orders.

Occupancy without a contract triggers automatic consequences: section 24(3) provides that if an operator permits occupation without a contract, the former occupant loses any liability for recurrent charges and the operator must make any refund due within one month. These consequences arise automatically without any order.

Part 3 disclosure obligations apply to advertising and pre-contract representations: sections 14 and 15 create offences for advertising proposed villages before development consent, or representing that aged care is available before the requisite approvals. These obligations arise before any contract is signed and are enforced by penalty notice or prosecution.

Entry into a retirement village under a loan licence: an elderly person pays an ingoing contribution of $800,000 to an operator in exchange for a licence to occupy a villa in a retirement village. The licence is not a registered interest. The operator must provide a disclosure document, and the parties must enter into a written residence contract and service contract. The contract must set out the departure fee schedule (for example, 2.5% of the ingoing contribution per year of occupancy, capped at 10%). When the resident later vacates, the operator must pay the exit entitlement (the ingoing contribution less the departure fee) within the prescribed period.

Resident committee and annual management meeting: the residents of a retirement village form a residents committee. Under Part 6, the operator must consult the committee before making or changing village rules, before changing recurrent charges (in specified circumstances), and before certain capital works decisions. The operator must hold an annual management meeting at which residents may raise issues. Residents who cannot attend in person may request proxy or electronic participation.

NCAT application for unconscionable contract term: a resident finds that the departure fee calculation in their contract would result in the operator retaining 30% of the ingoing contribution after only 3 years, leaving the resident with a minimal exit entitlement. The resident applies to NCAT under section 123(1) for an order declaring the relevant contract term harsh, oppressive, unconscionable, or unjust. The Tribunal may vary the departure fee provision or award compensation.

Exit entitlement order: an operator fails to pay a former resident's exit entitlement within the prescribed period following permanent vacation. The resident lodges a complaint with the Secretary. The Secretary makes an exit entitlement order under section 182AC requiring the operator to pay the resident the outstanding amount. The operator must comply with the order within the specified period.