Part 3—Rights of residents
Division 1—Creation and exercise of residents' rights
20—Residence contracts
(1) The operator of a retirement village must ensure that each residence contract is in writing, complies with the requirements prescribed by the regulations (if any) and includes 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) whether the resident may make alterations to the residence (including details of any necessary approval process that may apply) and any obligations applying at the end of the resident's right to occupation of the residence in relation to alterations made by the resident; and
(vi) any fee or charge payable in relation to the remarketing of the residence at the end of the resident's period of occupation, including the manner of calculation of such fees or charges; and
(vii) the right to terminate the right of occupation of the residence and to receive an exit entitlement; and
(viii) the amount of, or manner of calculation of, the exit fees that will be payable on the exercise of a right to terminate the right of occupation of the residence; and
(ix) the operator's dispute resolution policy;
(d) information about—
(i) 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; and
(ii) who will be responsible at the end of the contract for reinstating the residence to the same condition as when the resident first entered into occupation (allowing for fair wear and tear such as deterioration of the condition of the premises or a fixture or fitting caused by reasonable or natural environmental forces); and
(iii) who will be responsible at the end of the contract for any work to improve the residence in excess of that required to reinstate the premises to the condition it was when the resident first entered into occupation;
(e) any other information prescribed by the regulations.
(2) 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).
(3) For the purposes of subsection (1)(c)(ii), if the right to occupation under a residence contract is conferred pursuant to a lease or licence or by ownership of shares, the residence contract must clearly state at the front of the contract that—
(a) the right to occupation under the contract is conferred pursuant to a lease or licence or by ownership of shares (as the case requires); and
(b) the person entering into the contract as a prospective resident is not purchasing the residence.
21—Disclosure statements
(1) The operator of a retirement village must ensure that each disclosure statement is in writing, complies with the requirements prescribed by the regulations (if any) and includes—
(a) information about the financial arrangements relating to residents of the retirement village including—
(i) information about—
(A) 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
(B) what the operator does with the fees and charges; and
(C) 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
(D) the manner in which the resident's exit entitlement will be calculated and the effect of section 30; and
(E) the insurance arrangements that are in place in relation to the village; and
(ii) a statement of—
(A) estimated exit entitlements and exit fees payable under the residence contract in the event that the right to occupation of the residence under the contract is terminated at 2 years, 5 years and 10 years after the contract is entered into; and
(B) the manner of calculation of the estimated entitlements and fees referred to in subsubparagraph (A) and any inbuilt assumptions used in such a calculation; and
(C) when an exit entitlement is payable; and
(iii) 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 unforeseen expense of the retirement village (a special levy); and
(b) information about—
(i) the number of persons residing at the retirement village, and the percentages of residents—
(A) occupying a residence pursuant to a lease or licence; and
(B) occupying a residence pursuant to a right to occupation conferred by ownership of shares; and
(C) occupying a residence that they have purchased; and
(D) occupying land within the village pursuant to a lease or licence under section 57; and
(ii) any limitation or requirement that applies, or is known to apply at a future time, in relation to a resident's choice of provider for utilities, services and facilities that are provided or available to residents of the village (such as electricity, telephone or Internet services); and
(iii) any special levy in place and payable by residents of the retirement village, including the purpose of the special levy, the amount and frequency of payments and the proposed date of final payment; and
(iv) any major capital item expenditure project in place or planned for the next 2 years, including the cost of the project and how it will be funded; 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) the estimated exit entitlements and exit fees included under paragraph (a)(ii) are estimates only and are subject to change depending on circumstances prevailing at the relevant time in the future, such as the amount of a new ingoing contribution; and
(iv) 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.
(2) For the purposes of subsection (1)(a)(ii), estimates of exit entitlements and exit fees, including the manner of calculation of the entitlements and fees and any inbuilt assumptions used in such a calculation, must be reasonable in the circumstances.
(3) Information provided by an operator under subsection (1)(b) must be as up to date as reasonably practicable, but in any event accurate as at 1 July of the financial year within which the information is provided to a prospective resident.
22—Information to be provided before residence contract entered into
(1) Subject to subsection (2), 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;
(da) the policy applying at the retirement village for dealing with surplus and deficits in the accounts relating to recurrent charges for any financial year;
(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, village manager, senior manager, person employed or engaged to work at the retirement village or residents;
(g) any other document prescribed by the regulations.
(2) The requirement in subsection (1) to provide documents at least 10 business days before a person enters into a residence contract does not apply if—
(a) the person has received the documents referred to in subsection (1); and
(b) the person's legal representative has confirmed, by notice in writing, the provision of legal advice to the person in relation to the documents and the proposal to enter into the residence contract; and
(c) the person has given notice in writing that they wish to enter into the contract before the 10 business day period referred to in subsection (1) has expired.
23—Premises condition report
(1) The operator of a retirement village must, before a person enters into occupation of a residence in a retirement village, complete and provide to the person a report (a premises condition report) providing detailed information about—
(a) the condition of the fixtures, fittings and furnishings provided in the residence; and
(b) who has responsibility under the residence contract for the maintenance, repair and replacement of fixtures, fittings and furnishings provided in the residence and, if the operator is responsible for the maintenance, repair and replacement, how the maintenance, repair and replacement will be funded; and
(c) any other information prescribed by the regulations.
(2) A premises condition report must be in writing and comply with the requirements (if any) prescribed by the regulations (which may, without limitation, prescribe the form of a premises condition report).
(3) A person who enters into occupation of a residence in a retirement village must complete the premises condition report provided to the person by the operator and return the completed report to the operator within 10 business days of entering into occupation of the residence.
(4) A resident who fails to return a completed report in accordance with subsection (3) is taken to have agreed to the premises condition report as provided to the resident by the operator.
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 their 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.
(5a) If a person rescinds a residence contract in accordance with this section, the operator must take all reasonable steps to refund the ingoing contribution paid by the person within 10 business days after—
(a) if the operator requests the person to provide the operator with the person's payee details under subsection (5b)—the payee details are provided to the operator; or
(b) in any other case—the rescinding of the residence contract.
If an operator has engaged an external trustee service to hold funds received as an ingoing contribution from a person who rescinds a residence contract in accordance with this section, a direction from the operator to the trustee service to release the funds to the person as soon as reasonably practicable will be reasonable steps taken by the operator to refund the ingoing contribution to the person.
(5b) A resident who is entitled to a refund under this section must, at the request of the operator made by notice in writing to the resident, provide the operator with the resident's payee details for the purposes of the refund being made, and the payee details must be provided by the resident in accordance with any requirements specified in the regulations (and the refund to the resident will not be enforceable until such details have been provided).
(6) A residence contract may be enforced against the operator for the time being of the retirement village.
25—Offences
(1) If the right to occupation of a residence under a residence contract or a proposed residence contract is conferred pursuant to a lease or licence or by ownership of shares, a person must not represent that a resident or prospective resident (as the case requires), by entering into the contract, purchases the residence.
(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.
Division 2—Financial matters
25A—Residence contract holding deposits
(1) The operator of a retirement village must not seek or accept a deposit from a person in contemplation of the person becoming a resident in the retirement village that exceeds—
(a) $5 000; or
(b) if an amount is prescribed by the regulations for the purposes of this paragraph, that amount.
(2) If the operator of a retirement village accepts a deposit from a prospective resident in contemplation of the person entering into occupation of a particular residence under a residence contract, the operator must not, during the deposit holding period—
(a) increase a fee or charge under the residence contract that the person would be responsible for; or
(b) enter into a residence contract for the residence with another person.
(3) If an operator contravenes a provision of subsection (2), the prospective resident who had paid a deposit in contemplation of entering into occupation of the residence may apply to the Tribunal for an order that an increase in a fee or charge contrary to subsection (2)(a), or a residence contract entered into by the operator with another person contrary to subsection (2)(b) (as the case requires) is void and of no effect.
(4) The Tribunal may, on application under subsection (3) make any of the following orders:
(a) in the case of a contravention of subsection (2)(a), order that the increase to a fee or charge is void and of no effect;
(b) in the case of a contravention of subsection (2)(b), order that the residence contract entered into in contravention of that subsection is void and of no effect;
(c) any ancillary or incidental orders as the Tribunal sees fit.
(5) If the operator of a retirement village accepts payment of a deposit from a person in contemplation of the person entering into occupation of a residence in the retirement village but the person does not enter into a residence contract, the operator must, within 10 business days of any of the following occurring, take all reasonable steps to refund the deposit in full to the person:
(a) the person gives the operator notice that they do not intend to sign the residence contract;
(b) the operator enters into a residence contract with another person for the residence or otherwise determines to no longer hold the residence for the person.
Where an operator has engaged an external trustee service to hold funds received as a deposit from a person who does not proceed, a direction from the operator to the trustee service to release the funds to the person as soon as reasonably practicable will be reasonable steps taken to refund the deposit to the person.
deposit holding period in relation to a deposit paid by a person to an operator in contemplation of the person entering into occupation of a particular residence, means the period commencing on the day the operator receives the deposit and ending on the earliest of the following:
(a) the person gives the operator notice that they do not intend to sign the residence contract;
(b) the 12th business day following the day on which the prospective resident received the documents required to be given to the prospective resident under section 22(1);
(c) the day agreed between the operator and the prospective resident for the purposes of this paragraph at the time the deposit was paid.
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.
(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.
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) a period of 12 months has elapsed since the end of the relevant period; or
(c) the operator agrees to pay the exit entitlement to the resident,
whichever occurs first.
(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 referred to in subsection (2)(b), extend that period if satisfied that special circumstances exist.
(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) An operator is guilty of an offence if the operator fails to take all reasonable steps to pay the whole or any part of an exit entitlement within 10 business days after—
(a) if the operator requests the resident to provide the operator with the resident's payee details under subsection (18)—the payee details are provided to the operator; or
(b) in any other case—the resident becomes entitled to recover the amount as a debt in accordance with this section.
If an operator has engaged an external trustee service to hold funds being the exit entitlement of a resident, a direction from the operator to the trustee service to release the funds to the person as soon as reasonably practicable will be reasonable steps taken by the operator to pay the exit entitlement to the person.
(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 they did not intend to enter into occupation of the residence and wished to terminate the residence contract.
(18) A resident who is entitled to a payment under this section must, at the request of the operator made by notice in writing to the resident, provide the operator with the resident's payee details for the purposes of the payment being made, and the payee details must be provided by the resident in accordance with any requirements specified in the regulations (and the debt to the resident will not be enforceable until such details have been provided).
(19) In this section—
relevant period, in relation to a residence in a retirement village, means a period of 30 business days commencing on the first business day after the resident delivered up vacant possession of the residence.
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).
(3) If any amounts are deducted from an exit entitlement as contributions to 1 or more capital funds, the total amount that is deducted must not exceed—
(a) in relation to an amount deducted under a residence contract entered into before the commencement of this subsection—an amount that is 12.5% of the current market value of the residence to which the exit entitlement relates; or
(b) in relation to an amount deducted under a residence contract entered into after the commencement of this subsection—the lesser of the following amounts:
(i) an amount that is 1% of the current market value of the residence to which the exit entitlement relates multiplied by the number of years (including any part year) of occupation of the residence under the residence contract;
(ii) an amount that is 12.5% of the current market value of the residence to which the exit entitlement relates.
This subsection provides a cap on the deductions. If the residence contract provides for some lesser amount as the deduction, then this subsection will not apply.
(4) If an operator deducts an amount from an exit entitlement in contravention of subsection (3) the operator is guilty of an offence.
Maximum penalty: $ 35 000.
(5) For the purposes of subsection (3), the current market value of a residence to which an exit entitlement relates is—
(a) if the right to reside in the retirement village has been sold—the amount paid by the new purchaser as an ingoing contribution; or
(b) in any other case—calculated in the manner provided in the residence contract but as if the consideration paid on sale of the right to reside in the retirement village was the current market value of that right.
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 their 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 or other 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).
Other charges in respect of the residence, or in connection with the retirement village, that the operator must assume responsibility for in accordance with this provision would include, for example, council rates, water rates and emergency services levy.
(3) If—
(a) an operator must assume responsibility for recurrent or other 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 or other 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 they 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.
(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 they 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 or a refundable accommodation contribution 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.
(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 their 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 they entered into occupation of the residence.
(5) A person must not charge an amount as a fee or charge to a resident in relation to the remarketing of a residence under a residence contract unless—
(a) the amount is as specified in, or calculated in accordance with, the residence contract; or
(b) if the residence contract was entered into before the commencement of this paragraph and does not specify the fee or charge or the manner of its calculation—the amount represents the reasonable costs incurred by the operator in relation to the remarketing of the residence (which may include a reasonable portion of the costs of the general marketing strategy of the retirement village).
31A—Recurrent charges
(1) The operator of a retirement village must give a resident at least 10 business days' written notice of any proposed variation to a recurrent charge payable by the resident under the resident's residence contract.
(2) A resident of a retirement village is not required to pay any increase in a recurrent charge unless notice of the increase is given as required under subsection (1).
(3) The operator of a retirement village must not increase recurrent charges payable under a residence contract by an amount that is greater than—
(a) if the residence contract provides for the recurrent charges to be varied by specified amounts—the specified amounts; or
(b) if the residence contract provides for the recurrent charges to be varied according to a fixed formula—the amount calculated under the fixed formula; or
(c) in any other case—an amount that is the CPI percentage increase,
unless—
(d) a majority of the residents whose recurrent charges will be affected by the increase agree to the increase by resolution passed at a meeting of those residents; or
(e) the increase is allowed under subsection (4); or
(f) the Tribunal makes an order under subsection (6) that the increase is to take effect.
(4) For the purposes of subsection (3)(e), an increase in a recurrent charge relating to a retirement village is allowed to the extent that the charge is attributable to—
(a) an increase in rates, taxes or charges levied under an Act in relation to the retirement village land or its use; or
(b) an increase in the salary or wages of a person engaged in the operations of the retirement village and payable under an award, certified agreement or other industrial instrument made, approved, certified or continued in force under the Fair Work Act 1994 or an Act of the Commonwealth; or
(c) an increase in insurance premiums, or insurance excesses paid, in relation to the retirement village or its use; or
(d) subject to subsection (5), an increase in charges applying under prescribed maintenance contracts relating to the operations of the retirement village; or
(e) an increase in the rates applying to utilities supplied to the retirement village.
(5) Before increasing the amount included in a recurrent charge that applies under a prescribed maintenance contract, the operator must consider whether there is a more cost‑effective alternative to the maintenance service.
(6) The Tribunal may, on application by an operator for an order that an increase to recurrent charges payable by residents take effect—
(a) order that the proposed variation is to take effect, with or without modification; or
(b) order that the proposed variation is not to take effect.
(7) An operator may only apply to the Tribunal under subsection (6) if a meeting of the residents whose recurrent charges will be affected by the increase has been convened and the residents resolved to not agree to the increase in the recurrent charges.
(8) In determining an application made under this section, the Tribunal may have regard to the following:
(a) the level and cost of services and facilities provided for in the proposed annual budget;
(b) any proposed variations (including additions) to those services and facilities, being variations to which the residents have agreed;
(c) the cost of general services required to be provided by the operator;
(d) the frequency and amount of past variations of the recurrent charges;
(e) any other relevant matter.
(9) For the purposes of this section, the CPI percentage increase, in relation to a proposed increase in a recurrent charge under a residence contract, is the increase (rounded to the nearest dollar) that would result from the recurrent charge being increased in proportion to the difference between—
(a) the CPI published most recently before 30 June in the financial year that precedes the financial year in which the increase is to take effect; and
(b) the corresponding CPI published 12 months before the Consumer Price Index referred to in paragraph (a).
(10) In this section—
prescribed maintenance contract means a contract for the provision of maintenance services for—
(a) security infrastructure and systems; or
(b) lift infrastructure and systems; or
(c) waste management infrastructure and systems; or
(d) any other infrastructure or system of a kind prescribed by the regulations.
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—
(b) the business to be transacted at the meeting.
(6) A notice for an annual meeting of residents of a retirement village (whether or not given in compliance with subsection (5)) must be accompanied by—
(a) information that enables a comparison to be made between the previous financial year's income and expenditure and the estimates of income and expenditure for the current financial year including—
(i) an audited statement of accounts in respect of the previous financial year showing income and expenditure for that financial year and separately detailing the income and expenditure in respect of any capital fund; and
(ii) estimates of income and expenditure for the current financial year, separately detailing—
(A) estimates of income and expenditure in respect of any capital fund (including a description of each general category of proposed expenditure from the fund and the estimated amount of expenditure for each such category); and
(B) expenditure items covered, or proposed to be covered, by the recurrent charges (including a description of each general category of item and the amount of expenditure for each such category); and
(C) estimates of any management expenditure (including an explanation of each expenditure item and, if the expenditure is apportioned between more than 1 retirement village or other businesses, the manner in which such apportionment is calculated); and
(b) an invitation to residents to submit written questions to the operator at least 5 business days before the date of the meeting and other questions at the meeting; and
(c) any other information required by the regulations.
(7) The operator must ensure—
(a) that information provided under subsection (6) 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 convener of a meeting must ensure that the minutes of the meeting, 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.
(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.
(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.
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 operator will convene a meeting of residents under this section at which the person who is to be the new operator (or their 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 their 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—
(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 former operator and the person who is the new operator are each guilty of an offence.
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—
(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 their 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 their residence contract occurs without compliance with the term referred to in subsection (1), the operator is guilty of an offence.