Div 6Termination of residents' rights

Division 6—Termination of residents' rights 44—Termination of residents' rights (1) A resident of a residence in a retirement village has a right of occupation that cannot be terminated unless— (a) the resident dies; or (b) the resident terminates the residence contract or ceases to reside in the retirement village in circumstances in which there is no reasonable prospect of the resident returning to reside in the retirement village; or (c) the resident— (i) commits a breach of the residence contract or the residence rules; or (ii) acts in a manner that adversely affects the health and safety of persons working in the retirement village or that seriously disturbs the peace or comfort of other residents of the retirement village, and the operator terminates the resident's right of occupation on that ground; or (d) the residence becomes an unsuitable place of residence for the resident because of the resident's mental or physical incapacity and the operator terminates the resident's right of occupation on that ground; or (e) the holder of a mortgage or charge that was in existence at the commencement of the Retirement Villages Act 1987 becomes entitled to vacant possession of the residence pursuant to rights conferred by the mortgage or charge; or (f) circumstances exist that make it no longer appropriate for the resident to continue to reside in the residence; or (g) the Supreme Court terminates the residence contract in proceedings under section 58. (2) Subject to subsection (4), the rights of termination under subsection (1)(a), (b), (c) or (d) are subject to— (a) any limitations or qualifications arising from the residence contract; and (b) any rights of the resident deriving from the resident's ownership of an interest in the residence. (3) The rights of termination under subsection (1)(c)(ii) must not be exercised unless the operator has made reasonable efforts to stop the resident acting in the manner complained of by— (a) giving the resident a written notice warning the resident to stop acting in such a manner; or (b) conducting some form of mediation or other dispute resolution process with the resident; or (c) any other means appropriate in the circumstances, and those efforts have failed to prevent the resident so acting. (4) A residence contract cannot limit or qualify the right of a resident to terminate a right of occupation during their settling‑in period. (5) If a resident terminates a right of occupation during their settling‑in period, the resident is only liable to pay— (a) fair market rent in respect of their period of occupation of a residence, less any amount paid by the resident for services that would otherwise be included in the assessment of fair market rent (for example, the recurrent charges paid by the resident); and (b) remarketing fees; and (c) subject to subsection (5a), refurbishment fees; and (d) subject to subsection (5b), the costs to reinstate the residence to the condition it was before an alteration was made by the resident (or to some other agreed condition). (5a) A resident is only liable to pay a refurbishment fee under subsection (5)(c) in circumstances where refurbishment of the residence is reasonably necessary due to damage to, or degradation of, the residence caused by an act or omission of the resident during the resident's period of occupation of the residence. (5b) A resident is only liable to pay reinstatement costs under subsection (5)(d) if the resident, having made alterations to the residence, is bound under an agreement made with the operator to reinstate the residence to the same condition as before the alteration was made (or to some other agreed condition), but has failed to do so. (6) An amount payable by a resident under subsection (5) may be deducted from an exit entitlement due to the resident. (7) No provision in a contract between the operator and the resident can have the effect of making the resident liable to pay an amount by way of a penalty if they terminate a right of occupation during their settling‑in period (and any such provision is void to the extent that it would have such an effect). (8) The operator's decision to terminate a resident's right of occupation under subsection (1)(c), (d) or (f) is ineffective unless the Tribunal, on the application of the operator— (a) is satisfied that proper grounds, which are sufficiently serious to justify termination of the right of occupation, exist; and (b) confirms the operator's decision. (8a) An application to the Tribunal under subsection (8) in relation to a decision to terminate a resident's right of occupation may only be made by an operator if the operator has given the resident notice of the application in writing at least 5 business days before the making of the application. (9) If the Tribunal confirms the operator's decision to terminate a right of occupation, it must fix a period within which the resident must vacate the residence. (10) The Tribunal may make an order for the ejectment of a resident who has not vacated a residence at the expiration of the period referred to in subsection (9). (11) An order under subsection (10) may be enforced by a bailiff in the same manner as an order for the possession of premises under the Residential Tenancies Act 1995 (and, for that purpose a bailiff may, in particular, exercise the powers of a bailiff under section 99 of that Act). (12) If the operator decides to terminate a resident's right of occupation, the operator must give the resident a notice— (a) setting out the grounds of the operator's decision; and (b) providing the resident with a copy of the operator's dispute resolution policy; and (c) informing the resident that the decision is subject to review by the Tribunal; and (d) informing the resident of their rights with regard to such a review.