39Repaying etc holding deposits and ingoing contributions

39 Repaying etc holding deposits and ingoing contributions (1) An amount paid by a prospective resident to the operator of a retirement village as a holding deposit or ingoing contribution must be held in trust until— (a) the prospective resident enters into a residence contract with the operator (whether in relation to the residential premises concerned or to other residential premises in the same village or another village); or (b) the operator receives written notice that the prospective resident— (i) does not intend to enter into a residence contract for a reason other than that mentioned in subparagraph (ii); or (ii) does not intend to enter into a residence contract because the prospective resident has been approved for access for, and intends to enter into, a residential care home; or (iii) has died. (2) If the prospective resident enters into a residence contract with the operator, an amount paid under this section as a holding deposit may, if both parties agree, form part of the deposit under the contract. (3) If the operator receives written notice under subsection (1) (b), the operator must refund the amount to the person lawfully entitled to it not later than 14 days after the operator receives the notice. (4) However, for notice under subsection (1) (b) (i), the operator may keep an amount mentioned in subsection (5) if— (a) the prospective resident and the operator have entered into a (b) the prospective resident gives the notice— (i) after the end of the cooling-off period for the contract; and (ii) before final payment is made under the contract; and

(iii) before the settling-in period for the contract begins. Note Cooling-off period—see s 53 (5). (5) For subsection (4), the amount is the reasonable costs incurred by the operator in relation to the residential premises for the period— (a) starting on the day after the village contract in relation to the premises is entered into; and (b) ending on the earliest of the following: (i) 14 days after the day the prospective resident gives notice under subsection (1) (b) (i); (ii) the day the operator of the retirement village enters into a village contract with an incoming resident in relation to the (iii) the day the operator enters into a residential tenancy agreement with an incoming tenant in relation to the (iv) the day a person takes up residence in the premises with the operator’s consent. Examples—reasonable costs legal expenses, commissions, advertising and marketing costs, recurrent charges (6) However, the amount mentioned in subsection (5) must not exceed— (a) an amount prescribed by regulation; or (b) if no amount is prescribed—$10 000.

(7) The operator may ask for evidence— (a) for notice given under subsection (1) (b) (ii)—of the prospective resident’s intention; or 1 statement from a hospital that the person is in hospital waiting for approval to access a residential care home 2 evidence that the person has been approved for access for, and intends to enter into, a residential care home (b) for notice given under subsection (1) (b) (iii)—that the prospective resident has died. (8) An amount paid to the operator as a deposit under a village contract is to be held in trust until final payment is made under the contract. (9) Subsection (8) does not apply in relation to a contract for the sale of residential premises if the contract provides for the way in which the deposit is to be held. (10) In this section: settling-in period, for a village contract, means the period worked out for the contract under section 71 (Meaning of end of the settling-in period—div 5.2).