Retirement Villages (Contractual Arrangements) Regulations 2017 (Victoria)

These Regulations (the Retirement Villages (Contractual Arrangements) Regulations 2017) set out a detailed contractual architecture for residence contracts and management contracts under the Retirement Villages Act 1986. They operate by prescribing required and prohibited contract terms, model contract forms, valuation and refund mechanics for refundable in‑going contributions, and procedures for certain interactions with aged care providers. The Regulations were made under s 43 of the Act (regulation 2) and commenced on 30 July 2017 (regulation 3). They also revoke the earlier 2006 and subsequent amending instruments listed in regulation 4.

Mechanically, the instrument does the following.

Defines key terms used for contract timing and valuation purposes, including the "determined date" that fixes statutory time limits (regulation 5). It cross‑references the Aged Care Act 1997 for concepts such as refundable accommodation deposits and residential care (regulation 5 definitions).
Prescribes minimum procedural and content requirements for residence contracts and management contracts: what must be included (regulation 11), what may be included (regulation 12), and what must not be included (regulation 10). It makes certain prescribed terms compulsory (regulation 13 and Schedule 5) and supplies model contract layouts (regulation 14 and Schedule 6).
Establishes contractual conditions that must be included in specified residence contracts so that non‑owner residents can recover refundable in‑going contributions within particular timeframes (regulation 6 and Schedules 1 and 2). Those conditions set out owner obligations to market the residence right and to deal with estate agents and offers in specified ways (Schedules 1 and 2).
Provides mechanics for bringing forward, in whole or in part, payment of refundable in‑going contributions to meet aged care accommodation requirements where a former resident becomes an "entitled person" under the Regulations (regulation 7). That regime specifies when an owner must pay an approved provider either a reasonable estimate of the unpaid refundable in‑going contribution or daily accommodation payments, the timing for such payments, an 85 per cent cap, deduction rights, and dispute resolution for valuations (regulation 7(2)-(11)).

Version No. 001

Retirement Villages (Contractual Arrangements) Regulations 2017

S.R. No. 67/2017

Version as at
30 July 2017

TABLE OF PROVISIONS

Regulation Page

1 Objectives 1

2 Authorising provision 1

3 Commencement 2

4 Revocation of Regulations 2

5 Definitions 2

6 Condition for refund of in-going contribution to a non-owner resident 3

7 Payment of certain aged care costs 5

8 Calculation of amount of refundable in-going contribution if original in-going contribution based on market value 8

9 Calculation of amount of refundable in-going contribution if original in-going contribution less than market value 9

10 Matters that must not be included in residence or management contracts 9

11 Matters that must be included in residence and management contracts 11

12 Matters that may be included in residence or management contracts 16

13 Prescribed terms for residence and management contracts 16

14 Forms for residence and management contracts 16

15 Regulations not to apply to agreement to lease or contract of sale 17

16 Contracting out 18

17 Transitional provisions 18

Schedule 1—Conditions to be included in certain residence contracts 20

Schedule 2—Conditions to be included in certain residence contracts 22

Schedule 3—Calculation of refundable in‑going contribution based on market value 24

Schedule 4—Calculation of refundable in‑going contribution where in-going contribution less than market value 26

Schedule 5 29

Schedule 6 33

═════════════

Endnotes 48

1 General information 48

2 Table of Amendments 50

3 Amendments Not in Operation 51

4 Explanatory details 52

Version No. 001

Retirement Villages (Contractual Arrangements) Regulations 2017

S.R. No. 67/2017

Version as at
30 July 2017

1 Objectives

The objectives of these Regulations are—

(a) to prescribe conditions for the purposes of section 26(2)(c) of the Retirement Villages Act 1986; and

(b) to provide for full or part payment of refundable in-going contributions to be brought forward to cover certain costs to former residents associated with
aged care accommodation; and

(c) to prescribe clauses to be included in residence contracts that set out how refundable in‑going contributions are calculated in certain cases; and

(d) to prescribe matters that must be, may be and must not be included in residence contracts and management contracts; and

(e) to prescribe terms for residence contracts and management contracts; and

(f) to prescribe the layout of residence contracts and management contracts.

2 Authorising provision

These Regulations are made under section 43 of the Retirement Villages Act 1986.

3 Commencement

These Regulations come into operation on
30 July 2017.

4 Revocation of Regulations

The following Regulations are revoked—

(a) the Retirement Villages (Contractual Arrangements) Regulations 2006[1];

(b) the Retirement Villages (Contractual Arrangements) Amendment (Formula) Regulations 2009[2];

(d) the Retirement Villages (Contractual Arrangements) Amendment Regulations 2016[4].

5 Definitions

In these Regulations—

determined date, in relation to an entitled person, means the latest of—

(a) the day that is 6 months after the entitled person delivers up vacant possession of the premises in the retirement village; or

(b) the day that is 6 months after the entitled person enters into residential care within the meaning of the Aged Care Act; or

(c) the day on which the entitled person is required to pay the refundable accommodation deposit to the approved provider of the residential care within the meaning of the Aged Care Act;

owner includes a person who alone or with others is the owner of an estate other than an estate in fee simple;

quarter means a period of 3 months in any year that ends on 31 March, 30 June, 30 September or 31 December;

the Act means the Retirement Villages Act 1986;

the Aged Care Act means the Aged Care Act 1997 of the Commonwealth;

Victorian Division of the Australian Property Institute means the Victorian Divisional Council of the Australian Property Institute Limited ACN. 608 309 128.

6 Condition for refund of in-going contribution to a non-owner resident

(1) If a residence contract with a non-owner resident includes the clauses in Schedule 1,
it is a condition of that contract for the purposes of section 26(2)(c) of the Act that the non-owner resident or the non-owner resident's legal personal representative is entitled to recover the amount refundable under section 26(1) of the Act—

(a) on a day that is not more than 14 days after the earlier of—

(i) the day on which a payment is made by another person under a residence contract in respect of the premises of the non-owner resident that is equal to or more than the amount owed to the non-owner resident after the non-owner resident has delivered up vacant possession of the premises; or

(ii) the day on which another person takes up residence in the premises of the non‑owner resident after the non-owner resident has delivered up vacant possession of the premises; or

(b) on or after the day a court or tribunal makes a finding that the owner has committed a material breach of any of the clauses in Schedule 1 included in the contract with the non-owner resident.

(2) Subregulation (3) applies to a residence contract with a non-owner resident if—

(a) it is a condition of the residence contract that—

(i) the amount of the in-going contribution is determined with reference to a factor other than or in addition to the market value of the residence right; and

(ii) the amount of the in-going contribution is less than the market value of the residence right; and

(b) the residence contract includes the clauses in Schedule 2.

(3) It is a condition of a contract to which this subregulation applies for the purposes of section 26(2)(c) of the Act that the resident or the resident's legal personal representative is entitled to recover the refundable in-going contribution—

(a) on a day that is not more than 14 days after the earlier of—

(ii) the day on which another person takes up residence in the premises of the non‑owner resident after the non-owner resident has delivered up vacant possession of the premises; or

(b) on or after the day a court or tribunal makes a finding that the owner has breached any of the clauses in Schedule 1 included in the contract with the non-owner resident.

(4) If the whole or any part of a refundable in-going contribution has been paid to the non-owner resident under regulation 7, subregulations (1) and (3) do not apply to the extent of that payment.

7 Payment of certain aged care costs

(1) In this regulation, entitled person means a former non-owner resident of a retirement village—

(a) all or part of whose in-going contribution is a refundable in-going contribution; and

(b) who is not yet entitled to the refundable in‑going contribution under the entitled person's residence contract; and

(d) who is required to make an accommodation payment to the approved provider of the residential care within the meaning of the Aged Care Act.

(2) If an entitled person entered into a residence contract before the date these Regulations commence and notifies the owner of the retirement village in writing that the entitled person has elected to make the accommodation payment by way of a refundable accommodation deposit within the meaning of the Aged Care Act, the owner of the retirement village must, if requested to do so in that notice, pay to the approved provider in accordance with subregulation (3)—

(a) if the amount of the unpaid refundable in‑going contribution, as reasonably estimated by the owner of the retirement village, is equal to or less than the refundable accommodation deposit, the reasonable estimate of the amount of the unpaid refundable in-going contribution; or

(b) if the amount of the unpaid refundable in‑going contribution, as reasonably estimated by the owner of the retirement village, is more than the refundable accommodation deposit, the amount of the refundable accommodation deposit.

(3) Payment under subregulation (2) by the owner of the retirement village must be made—

(a) if notice has been given at least 14 days before the determined date, on or before the determined date; or

(b) if notice is given less than 14 days before the determined date, not more than 14 days after the giving of the notice.

(4) If an entitled person entered into a residence contract (whether before, on or after the commencement of these Regulations) and notifies the owner of the retirement village in writing that the entitled person has elected to make the accommodation payment by way of daily accommodation payments within the meaning of the Aged Care Act, the owner of the retirement village must, if requested to do so in that notice, pay to the approved provider the daily accommodation payments as they fall due.

(5) If an owner of a retirement village is required under this regulation to pay a refundable accommodation deposit but considers that this would cause undue hardship, the owner may at any time apply to the Tribunal for an order to pay to the approved provider the entitled person's daily accommodation payments as they fall due.

(6) Despite anything to the contrary in this regulation, the owner of a retirement village is not required to pay more than 85 per cent of the amount of the unpaid refundable in-going contribution, as reasonably estimated by the owner.

(7) The owner of the retirement village may deduct the amount of a payment under subregulation (2) from the amount of the in-going contribution that the entitled person is entitled to recover under section 26 of the Act.

(8) The owner of the retirement village must notify the entitled person of the owner's reasonable estimate of the amount of the unpaid refundable in‑going contribution and the owner's estimate of the current market value of the entitled person's residence right within 14 days of the relevant notice under subregulation (2).

(9) The reasonable estimate of the amount of the unpaid refundable in-going contribution must be calculated according to the current market value of the entitled person's residence right.

(10) If an entitled person notifies the owner of the retirement village in writing, within 14 days after receiving the notice under subregulation (8), that the entitled person disagrees with the owner's estimate of the amount of the unpaid refundable in-going contribution, the estimate of the amount of the unpaid refundable in-going contribution must be determined by—

(a) an independent valuer agreed on by the entitled person and the owner; or

(b) if the entitled person and the owner cannot agree on a valuer, a valuer appointed by the President of the Victorian Division of the Australian Property Institute.

(11) Any costs of obtaining the valuation under subregulation (10) must be shared equally by the entitled person and the owner.

8 Calculation of amount of refundable in-going contribution if original in-going contribution based on market value

The clauses set out in Schedule 3 are included in a residence contract with a non-owner resident if—

(a) the residence contract provides that the resident's refundable in-going contribution is to be calculated with reference to the amount that will be paid as an in-going contribution by the next resident of the subject premises; and

(b) regulation 9 does not apply to the residence contract.

9 Calculation of amount of refundable in-going contribution if original in-going contribution less than market value

The clauses set out in Schedule 4 are included in a residence contract with a non-owner resident if—

(a) it is a condition of the residence contract that—

(i) the amount of the in-going contribution is determined with reference to a factor other than or in addition to the market value of the residence right; and

(ii) the amount of the in-going contribution is less than the market value of the residence right; and

(b) the residence contract provides for a refundable in-going contribution to be calculated with reference to the amount that will be paid as an in-going contribution by the next resident of the subject premises.

10 Matters that must not be included in residence or management contracts

A residence contract or a management contract must not include any of the following—

(a) a requirement for a resident to have a will or to advise the owner or manager of its location;

(b) a requirement for a resident to take out any insurance policy other than a liability policy for any motorised wheelchair operated by the resident;

(c) a requirement for a resident to pay the owner's or manager's costs for corresponding with the resident or for preparing or providing information required to be given to the resident other than costs of any audit under section 34(4) of the Act;

(d) if the amount of the resident's refundable in‑going contribution depends on the duration of the resident's residence in the village and on the assumption that the premises are the resident's principal place of residence, a restriction on a resident's absence from the village other than a restriction that would result in the resident's premises no longer being the resident's principal place of residence;

(e) a requirement for a resident to pay liquidated damages for breach of a contract, other than a requirement to forfeit a deposit, or for a breach of a by-law relating to the village;

(f) an exclusion of or limitation on the owner's or manager's liability for default or breach of duty;

(g) a right to recover administration and operating costs from a resident other than those—

(i) incurred while the resident resided in the village; or

(ii) associated with the resale or re‑leasing of the resident's premises; or

(iii) that are charges for personal services or that are maintenance charges, the recovery of which would not constitute an offence against section 38A or 38B of the Act;

(h) a requirement, other than a requirement of a clause incorporated by regulation 7, for a resident to pay more than half the costs of any valuation of the resident's premises or residence right that is required or permitted, except where the resident has acted unreasonably;

(i) a requirement for a resident to pay costs of enforcing the contract;

(j) a right of an owner or manager to relocate a resident to other premises without the resident's consent, except for an emergency (including where the resident's premises are destroyed or severely damaged or where a resident's safety, health or property is endangered);

(k) a restriction on the operation or membership of the residents committee;

(l) a provision to the effect that the written contract represents the entire agreement between the parties.

11 Matters that must be included in residence and management contracts

(1) A residence contract must specify the following—

(a) the date of the contract and, if the contract does not commence on that date, the date the contract commences;

(b) the owner's name, address and address for service;

(d) the address of the residential premises;

(e) the duration of the contract;

(f) the resident's garage, storeroom and parking entitlements (other than as accessories to any strata title of the resident);

(g) the date of occupation of the premises or the date of the resident's right to occupy the premises (as the case may be);

(h) the fixtures, fittings and furnishings provided by the owner with the residential premises.

(2) A residence contract must address the following matters—

(a) the resident's ability to alter and add to the residential premises;

(b) the resident's ability to transfer to other residential premises or other types of accommodation;

(c) if the residential premises are incomplete, the resident's ability to determine the design, construction and furnishing of the premises;

(d) any restrictions on the resident's use of the residential premises;

(e) any restrictions on pets, visitors and car parking;

(f) any restrictions on the persons to whom the resident can transfer the residential premises;

(g) any rights of access of the owner to the residential premises;

(h) any right of the owner to relocate the resident to other premises in an emergency;

(i) any legal costs of the owner payable by the resident;

(j) all costs and charges payable by the resident to the owner to gain entry to the village including any in-going contribution and whether interest is payable to the resident;

(k) all costs and charges payable by the resident to the owner during their residency in the village and the period after the resident has ceased to be a resident for which any such cost or charge continues to be payable;

(l) all costs, fees and charges payable by the resident to the owner on permanent departure from the premises;

(m) the method of calculating any refundable in‑going contribution that the owner is liable to make to the resident, including how capital gains or losses are shared and any applicable fees, charges and financial penalties;

(n) the time at which the refund referred to in subparagraph (m) is payable to the resident;

(o) the insurance policies in relation to the retirement village (excluding any policies in relation to any owners corporation in the village) that the owner is to take out;

(p) who is responsible for maintaining the residential premises, including replacement and maintenance of fixtures, fittings and furnishings;

(q) what renovation or reinstatement of the resident's premises will be required and who is liable for the cost;

(r) how the contract may be terminated, including any minimum advance notice;

(s) the resident's right to refuse to agree to amendments to or termination of the contract;

(t) the by-laws relating to the village
(unless this matter is included in the resident's management contract).

(3) A management contract must specify the following—

(a) the date of the contract and, if the contract does not commence on that date, the date the contract commences;

(b) the manager's name, address and address for service;

(d) the address of the residential premises;

(e) the duration of the contract;

(f) the services to be provided to the resident by the manager, including any service that, before the resident entered into the contract, the manager or the manager's agents represented to the resident would be provided or made available and the date (if any) on or by which it was represented that such service would be provided or made available.

(4) A management contract must address the following matters—

(a) any rights of access of the manager to the residential premises;

(b) any legal costs of the manager payable by the resident;

(c) all costs and charges payable by the resident to the manager during their residency in the village, including maintenance charges, and the period after the resident has ceased to be a resident for which any such cost or charge continues to be payable;

(d) the matters for which maintenance charges may be used;

(e) how and when maintenance charges can be adjusted;

(f) the repair and maintenance procedure
for the residential premises, including the responsibilities of the manager and the resident;

(g) how special levies can be imposed;

(h) the method of calculating any refund of the in-going contribution that the manager is liable to make to the resident, including how capital gains or losses are shared and any applicable fees, charges and financial penalties;

(i) the time at which the refund referred to in paragraph (h) is payable to the resident;

(j) the insurance policies in relation to the retirement village (excluding any policies in relation to any owners corporation in the village) that the manager is to take out;

(k) how the contract may be terminated, including any minimum advance notice;

(l) the resident's right to refuse to agree to amendments to or termination of the contract;

(m) the by-laws relating to the village
(unless this matter is included in the residence contract);

(n) the process for consultation with the resident or with the residents of the retirement village on the proposed exercise of any right to change services provided by the manager that will result in a material change in the services provided under the contract.

12 Matters that may be included in residence or management contracts

Without limiting the matters that may be included in a residence contract or a management contract, a residence contract or a management contract may include a warning that the resident is advised to take out a house contents insurance policy or public liability insurance policy.

13 Prescribed terms for residence and management contracts

(1) Subject to subregulation (3), a residence contract must include the terms set out in Part A of Schedule 5 and is taken to include those terms.

(2) Subject to subregulation (3), a management contract must include the terms set out in Part B of Schedule 5 and is taken to include those terms.

(3) If under this regulation, a term is required to be included in and is taken to be included both in a residence contract and in a management contract and, as a matter of law or contract, that term is applicable to only one of those contracts, the term need not be included in, nor is it to be taken to be included in, the other contract.

(4) This regulation does not derogate from any term implied by law into a residence contract or management contract.

14 Forms for residence and management contracts

(1) Subject to subregulation (5), a residence contract must be in the form in Part A of Schedule 6.

(2) Subject to subregulation (5), a management contract must be in the form in Part B of Schedule 6.

(3) Subject to subregulation (5), a combined residence contract and management contract in which the owner and manager are the same person must be in the form in Part C of Schedule 6.

(4) Subject to subregulation (5), a combined residence contract and management contract, where the owner and manager are not the same person, must be in the form in Part D of Schedule 6.

(5) If, in the form of a contract set out in Schedule 6, a right or obligation is ascribed to both the owner and manager but, as a matter of law or contract, only one of those parties has that right or obligation in relation to the resident, that right or obligation may be omitted from the rights or obligations ascribed to the other party in the contract.

(6) It is sufficient compliance with a requirement under this regulation relating to the insertion of rights, obligations and other matters under the headings in the section in the form of a contract headed "Matters required by Regulation 11 of the Retirement Villages (Contractual Arrangements) Regulations 2017 to be addressed" if the text of the relevant rights, obligations and other material is inserted under the relevant heading and any variations are set out in a schedule or attachment to the contract.

15 Regulations not to apply to agreement to lease or contract of sale

(1) Subregulation (2) applies if a residence contract is annexed to an agreement to lease or if a management contract is annexed to a contract of sale of land, to a contract of sale of a unit in a unit trust or to a contract of sale of a share in a corporation.

(2) Regulations 10, 11, 12 and 13—

(a) apply to the residence contract or the management contract (as the case may be); and

(b) do not apply to the agreement to lease or contract of sale.

16 Contracting out

(1) A provision in a contract or document concerning a retirement village that purports to exclude, modify or restrict the operation of regulations 10, 11, 12 or 13 is void.

(2) If a contract or document includes a provision that is void under subregulation (1), that subregulation does not affect the validity or enforceability of other provisions of the contract or document, in so far as they are severable from the void provisions.

17 Transitional provisions

(1) These Regulations do not apply to a residence contract entered into and in force immediately before the commencement of the Retirement Villages (Contractual Arrangements) Regulations 2006.

(2) Subregulation (3) applies to a residence contract that—

(a) is entered into by an owner and a non-owner resident; and

(b) is entered into during the period beginning on the commencement of the Retirement Villages (Contractual Arrangements) Regulations 2006 and ending on 16 September 2006; and

(3) A condition included in a residence contract to which this subregulation applies is a condition for the purposes of section 26(2)(c) of the Act if that condition entitles the non-owner resident or the non-owner resident's legal personal representative to recover the amount refundable under section 26(1) of the Act as a consequence of—

(a) the payment being made by another person under a residence contract of an in-going contribution in respect of the premises of the non-owner resident; or

(b) any other event that precedes payment being made by another person under a residence contract of an in-going contribution in respect of the premises.

Schedule 1—Conditions to be included in certain residence contracts

Regulation 6(1)

1 The parties to the contract agree that if the owner is notified in writing that the non-owner resident intends to deliver up vacant possession of the resident's premises in the retirement village, the owner will ask the resident to advise the owner in writing within 5 business days whether or not the resident wishes the residence right relating to the premises to be sold through an estate agent who is not otherwise involved in the operation of the retirement village.

2 The owner agrees that if the resident advises in writing under clause 1 that the resident wishes the residence right to be sold through an estate agent not otherwise involved in the operation of the retirement village, the owner will appoint such an estate agent.

3 The owner agrees that an estate agent appointed under clause 2 must be an estate agent agreed between the owner and the resident.

4 If the owner and the resident cannot agree on an estate agent, the owner and the resident must use their best endeavours to agree on a fair and reasonable process for the selection and appointment of an estate agent.

5 The owner agrees that the owner's instructions to an estate agent appointed under clause 2 must be consistent with all reasonable endeavours being made to secure a residence contract with another person in respect of the premises and to procure payment of the in-going contribution from that person under that residence contract.

6 The owner agrees that if the resident does not advise in writing under clause 1 that the resident wishes the residence right to be sold through an estate agent not otherwise involved in the operation of the retirement village, the owner will make all reasonable endeavours to secure a residence contract with another person in respect of the premises and to procure payment of the in-going contribution from that person under that residence contract.

7 If, at any time, the resident advises the owner in writing of a price at which, or a price range within which, the resident wishes offers to be invited, the owner must not invite offers other than that price or outside that range without the written agreement of the resident.

8 The owner must provide the resident at the end of each named month with a written summary of inquiries received about purchase of the residence right.

9 The owner must advise the resident without delay of any offer received to purchase the residence right.

10 If the resident advises the owner in writing that the resident wishes a particular offer to purchase the residence right to be accepted, the owner must not unreasonably refuse or fail to accept the offer.

11 The owner must not reach an agreement with a prospective purchaser of the residence right on a purchase price without first obtaining the agreement of the resident to that purchase price.

12 The resident must not unreasonably refuse to agree in respect of the matters in clauses 7 and 11.

13 The owner agrees not to make any unreasonable charges on the resident in relation to the process of selling the residence right.

14 In clauses 1 to 13—

estate agent has the same meaning as in the Estate Agents Act 1980.

Schedule 2—Conditions to be included in certain residence contracts

Regulation 6(2)

1 The parties agree that if the owner is notified in writing that the non-owner resident intends to deliver up vacant possession of the resident's premises in the retirement village, the owner will ask the resident to advise the owner in writing within 5 business days whether or not the resident wishes the residence right relating to the premises to be sold through an estate agent who is not otherwise involved in the operation of the retirement village.

3 The owner agrees that an estate agent appointed under clause 2 must be an estate agent agreed between the owner and the resident.

7 The owner must provide the resident at the end of each named month with a written summary of inquiries received about purchase of the residence right.

8 The owner must advise the resident without delay of any offer received to purchase the residence right.

9 The owner agrees not to make any unreasonable charges on the resident in relation to the process of selling the residence right.

10 In clauses 1 to 9—

estate agent has the same meaning as in the Estate Agents Act 1980.

Schedule 3—Calculation of refundable
in‑going contribution based on market value

Regulation 8

1 The following clauses apply if the resident becomes entitled to payment of the refundable in-going contribution before another person has paid an in-going contribution in respect of the premises of the non-owner resident.

2 The parties to the contract agree that the refundable in‑going contribution will be calculated as if another person had paid the proxy amount determined in accordance with clause 3 as an in‑going contribution under a residence contract in relation to the premises.

3 For the purposes of clause 2, the proxy amount is the current market value of the residence right agreed by the parties or, if the parties cannot agree, as determined by an independent valuation obtained from—

(a) an independent valuer agreed by the parties; or

(b) if the parties cannot agree, a valuer appointed by the President of the Victorian Division of the Australian Property Institute.

4 The parties agree that—

(a) if the resident is entitled under this contract to a proportion of any amount by which the in-going contribution paid by the resident is exceeded by the next in-going contribution paid in respect of the premises, the resident is liable for the costs of a valuation under clause 3 in the same proportion; and

(b) the owner is liable for any costs of a valuation under clause 3 for which the resident is not liable under subclause (a).

5 In clause 3, Victorian Division of the Australian Property Institute means the Victorian Divisional Council of the Australian Property Institute Limited ACN. 608 309 128.

Schedule 4—Calculation of refundable in‑going contribution where in-going contribution less than market value

Regulation 9

1 The following clauses apply if the non-owner resident becomes entitled to payment of the refundable in-going contribution before another person has paid an in-going contribution in respect of the premises of the non-owner resident.

2 The parties to the contract agree that—

(a) clause 3 applies if—

(i) the amount of the in-going contribution being sought in respect of the premises is determined with reference to factors other than or in addition to the market value of the residence right; and

(ii) the amount of the in-going contribution is accordingly less than the market value of the residence right; and

(b) in any other case, clause 5 applies.

3 For the purposes of clause 2(a), the refundable in-going contribution is calculated as if another person had paid the proxy amount determined in accordance with clause 4 as an in-going contribution under a residence contract in relation to the premises.

4 For the purposes of clause 3, the proxy amount is—

(a) the amount paid as an in-going contribution by the resident, indexed in accordance with the following formula—

View image in the official source

where—

A is the amount of in-going contribution paid by the resident; and

B is the CPI for the quarter preceding the quarter in which the payment of the refundable in‑going contribution falls due; and

C is the CPI for the quarter preceding the quarter in which the in-going contribution was paid by the resident under the residence contract; or

(b) if a higher amount is agreed between the parties, that amount.

5 For the purposes of clause 2(b), the refundable in-going contribution is calculated as if another person had paid the proxy amount determined in accordance with clause 6 as an in-going contribution under a residence contract in relation to the premises.

6 For the purposes of clause 5, the proxy amount is the current market value of the residence right agreed by the parties or, if the parties cannot agree, as determined by an independent valuation obtained from—

(a) an independent valuer agreed by the parties; or

(b) if the parties cannot agree, a valuer appointed by the President of the Victorian Division of the Australian Property Institute.

7 The parties to the contract agree that—

(b) the owner is liable for any costs of a valuation under clause 6 for which the resident is not liable under subclause (a).

8 In clauses 1 to 7 and this clause—

CPI means the all groups consumer price index for Melbourne in original terms published by the Australian Bureau of Statistics;

Victorian Division of the Australian Property Institute means the Victorian Divisional Council of the Australian Property Institute Limited
ACN. 608 309 128.

Schedule 5

Part A

Regulation 13(1)

Prescribed terms for residence contracts

Primacy of the Retirement Villages Act 1986 and regulations

This contract must comply with the Retirement Villages Act 1986, the regulations made under that Act and any other applicable legislation, and is void to the extent of its inconsistency with that Act, those regulations and other applicable legislation, including any inconsistency with these prescribed terms.

Basic obligations of the owner

The owner must—

(a) give exclusive and vacant possession of the resident's premises in a clean and tidy condition; and

(b) use best endeavours to ensure that the owner's tenants, employees and invitees or other persons lawfully on village premises comply with the by-laws relating to the village; and

(c) obtain the resident's consent to enter the resident's premises unless in an emergency or if a resident's safety or property is endangered, subject to any other term that enables entry for reasonable cause on reasonable notice; and

(d) give receipts for payments made by the resident and keep a record of such payments.

Basic obligations of the resident

The resident must—

(a) use best endeavours to ensure that the resident's invitees or other persons lawfully on the resident's premises comply with the by-laws relating to the village; and

(b) respect the rights of other residents and persons in the village; and

(d) respect the rights of the owner, its employees and agents to work free from harassment and intimidation; and

(e) not adversely affect the occupational health and safety of people working in the village; and

(f) if the owner exercises a right to relocate the resident to other premises with the consent of the resident, not withhold consent unreasonably.

Basic rights of the resident

The resident has the right—

(a) to any payment that the owner is liable to make consequent on the resident's permanent departure from their premises or death, unaffected by termination of the residence contract, whether for breach of contract or otherwise; and

(b) to remove any fixture that the resident has added to the resident's premises (for which there is no agreement to leave in place) at any time before permanently departing the premises, subject to making good any damage caused by the removal; and

(c) if the resident's only obligation in relation to the condition of the resident's premises is to remedy damage and if the resident does not share in any capital gain—to not be liable for fair wear and tear to the resident's premises.

General

(a) These prescribed terms, and any other terms prescribed under the Retirement Villages Act 1986 or regulations, take precedence over any inconsistent terms of this contract or any inconsistent by-laws relating to the village.

(b) The owner and the resident must deal with each other in good faith.

Part B

Regulation 13(2)

Prescribed terms for management contracts

Primacy of the Retirement Villages Act 1986 and regulations

Basic obligations of the manager

The manager must—

(a) use best endeavours to ensure that the manager's tenants, employees and invitees or other persons lawfully on village premises comply with the by-laws relating to the village; and

(b) if the manager is required to carry out repairs or replacements
to the common facilities and other areas under its control that are funded from maintenance charges, promptly carry out repairs or replacements necessary for the safety or security of residents; and

(d) give receipts for payments made by the resident and keep a record of such payments.

Basic obligations of the resident

The resident must—

(a) use best endeavours to ensure the resident's invitees or other persons lawfully on the resident's premises comply with the by-laws relating to the village; and

(b) respect the rights of other residents and persons in the village; and

(d) respect the rights of the manager, its employees and agents to work free from harassment and intimidation; and

(e) not adversely affect the occupational health and safety of people working in the village.

Basic rights of the resident

The resident has the right to any payment that the manager is liable to make consequent on the resident's permanent departure from their premises or death, unaffected by termination of the management contract, whether for breach of contract or otherwise.

General

(b) The manager and the resident must deal with each other in good faith.

Schedule 6

Part A

Regulation 14(1)

[TRADING NAME OF VILLAGE]

RESIDENCE CONTRACT

[on front page of contract] COOLING-OFF RIGHT Under section 24 of the Retirement Villages Act 1986, you may cancel this contract at any time before the expiry of 3 clear business days after you have signed this contract, by— giving a notice of cancellation to [name or abbreviation of owner] or our agent; orsending the notice to [name or abbreviation of owner] at the above mentioned address for service of notices or to the address of our agent. If you cancel, [name or abbreviation of owner] may retain $100 or 0·2% of the in-going contribution, whichever is greater.

Date contract signed:

Name and address of village owner:

Address for service of notices:

Name and address of resident:

Address of resident's premises:

Date of resident's occupation of resident's premises/date of resident's right to occupy premises [delete whichever is inapplicable]:

Date contract commences [if different from above]:

Term of contract/date contract expires [delete whichever is inapplicable]:

Garage, storeroom and parking entitlements:

Fixtures, fittings and furnishings provided by the village owner with the resident's premises are as follows:

OPERATIVE WORDS

[insert any desired statement of the nature or operation of the contract, for instance, the grant of the interest in the premises]

PRESCRIBED TERMS UNDER REGULATION 13 OF THE RETIREMENT VILLAGES (CONTRACTUAL ARRANGEMENTS) REGULATIONS 2017

Primacy of the Retirement Villages Act 1986 and regulations

Basic obligations of the owner

[name or abbreviation of owner] must—

(a) give exclusive and vacant possession of the resident's premises in a clean and tidy condition; and

(b) use best endeavours to ensure that the owner's tenants, employees and invitees or other persons lawfully on village premises comply with the by-laws relating to the village; and

(d) give receipts for payments made by the resident and keep a record of such payments.

Basic obligations of the resident

The resident must—

(a) use best endeavours to ensure that the resident's invitees or other persons lawfully on the resident's premises comply with the by-laws relating to the village; and

(b) respect the rights of other residents and persons in the village; and

(d) respect the rights of [name or abbreviation of owner], its employees and agents to work free from harassment and intimidation; and

(e) not adversely affect the occupational health and safety of people working in the village; and

(f) if [name or abbreviation of owner] exercises a right to relocate the resident to other premises with the consent of the resident, not withhold consent unreasonably.

Basic rights of the resident

The resident has the right—

(a) to any payment that [name or abbreviation of owner] is liable to make consequent on the resident leaving the village or dying, unaffected by termination of the residence contract, whether for breach of contract or otherwise; and

(b) to remove any fixture that the resident has added to the resident's premises (for which there is no agreement to leave in place) at any time before permanently vacating the premises, subject to making good any damage caused by the removal; and

(c) [if the resident's only obligation in relation to the condition of the resident's premises is to remedy damage and if the resident does not share in any capital gain] not to be liable for fair wear and tear to the resident's premises.

General

(b) [name or abbreviation of owner] and the resident must deal with each other in good faith.

MATTERS REQUIRED BY REGULATION 11 OF THE RETIREMENT VILLAGES (CONTRACTUAL ARRANGEMENTS) REGULATIONS 2017 TO BE ADDRESSED

Costs payable on entry [refer to regulation 11(2)(j)]

Costs payable during residency [refer to regulation 11(2)(k)]

Costs payable on departure [refer to regulation 11(2)(l)]

Owner's legal costs [refer to regulation 11(2)(i)]

Costs of renovation or reinstatement [refer to regulation 11(2)(q)]

Resident's exit entitlement [refer to regulation 11(2)(m) and (n)]

Maintenance of the resident's premises [refer to regulation 11(2)(p)]

Village insurance [refer to regulation 11(2)(o)]

Any restrictions relating to the resident's premises [refer to regulation 11(2)(a) to (g)]

Termination and amendment of the contract [refer to
regulation 11(2)(r) and (s)]

The village by-laws [refer to regulation 11(2)(t)—unless set out
in the management contract]

OTHER TERMS—WHICH MUST NOT INCLUDE ANY TERM PROHIBITED BY THE RETIREMENT VILLAGES ACT 1986 OR REGULATIONS

Part B

Regulation 14(2)

[TRADING NAME OF VILLAGE]

MANAGEMENT CONTRACT

Date contract signed:

Name and address of village manager:

Address for service of notices:

Name and address of resident:

Address of resident's premises:

Date contract commences:

Term of contract/date contract expires [delete whichever is inapplicable]:

The services to be provided to the resident—including any service that, before the resident entered into the contract, [name or abbreviation of manager] or its agents represented to the resident would be provided or made available, and the date (if any) on or by which it was represented that such service would be provided or made available—are as follows—

[insert services and where applicable date service is to be provided or made available]

OPERATIVE WORDS

[insert any desired statement of the nature or operation of the contract]

PRESCRIBED TERMS UNDER REGULATION 13 OF THE RETIREMENT VILLAGES (CONTRACTUAL ARRANGEMENTS) REGULATIONS 2017

Primacy of the Retirement Villages Act 1986 and regulations

Basic obligations of the manager

[name or abbreviation of manager] must—

(a) use best endeavours to ensure that the manager's tenants, employees and invitees or other persons lawfully on village premises comply with the by-laws relating to the village; and

(d) give receipts for payments made by the resident and keep a record of such payments.

Basic obligations of the resident

The resident must—

(a) use best endeavours to ensure that the resident's invitees or other persons lawfully on the resident's premises comply with the by-laws relating to the village; and

(b) respect the rights of other residents and persons in the village; and

(d) respect the rights of [name or abbreviation of manager], its employees and agents to work free from harassment and intimidation; and

(e) not adversely affect the occupational health and safety of people working in the village.

Basic rights of the resident

The resident has the right to any payment that [name or abbreviation of manager] is liable to make consequent on the resident leaving the village or dying, unaffected by termination of the management contract, whether for breach of contract or otherwise.

General

(b) [name or abbreviation of manager] and the resident must deal with each other in good faith.

MATTERS REQUIRED BY REGULATION 11 OF THE RETIREMENT VILLAGES (CONTRACTUAL ARRANGEMENTS) REGULATIONS 2017 TO BE ADDRESSED

Costs payable during residency [refer to regulation 11(4)(c)]

Manager's legal costs [refer to regulation 11(4)(b)]

Adjustments to maintenance charges [refer to regulation 11(4)(e)]

Use of maintenance charges [refer to regulation 11(4)(d)]

The repair and maintenance procedure [refer to regulation 11(4)(f)]

Consultation on changes to services [refer to regulation 11(4)(n)]

Special levies [refer to regulation 11(4)(g)]

Resident's exit entitlement [refer to regulation 11(4)(h) and (i)]

Village insurance [refer to regulation 11(4)(j)]

Manager's right of access to the resident's premises [refer to regulation 11(4)(a)]

Termination and amendment of the contract [refer to
regulation 11(4)(k) and (l)]

The village by-laws [refer to regulation 11(4)(m)—unless set out in the residence contract]

OTHER TERMS—WHICH MUST NOT INCLUDE ANY TERM PROHIBITED BY THE RETIREMENT VILLAGES ACT 1986 OR REGULATIONS

Part C

Regulation 14(3)

[TRADING NAME OF VILLAGE]

RESIDENCE AND MANAGEMENT CONTRACT

[on front page of contract] COOLING-OFF RIGHT Under section 24 of the Retirement Villages Act 1986, you may cancel this contract at any time before the expiry of 3 clear business days after you have signed this contract, by— giving a notice of cancellation to [name or abbreviation of owner/manager] or our agent; orsending the notice to [name or abbreviation of owner/manager] at the above mentioned address for service of notices or to the address of our agent. If you cancel, [name or abbreviation of owner/manager] may retain $100 or 0·2% of the in-going contribution, whichever is greater.

Date contract signed:

Name and address of the person who is the village owner and manager:

Address for service of notices:

Name and address of resident:

Address of resident's premises:

Date of resident's occupation of resident's premises/date of resident's right to occupy premises [delete whichever is inapplicable]:

Date contract commences [if different from above]:

Term of contract/date contract expires [delete whichever is inapplicable]:

Garage, storeroom and parking entitlements:

Fixtures, fittings and furnishings provided by the village owner and manager with the resident's premises are as follows:

[insert services and where applicable date service is to be provided or made available]

OPERATIVE WORDS

[insert any desired statement of the nature or operation of the contract, for instance, in relation to the residence contract, the grant of the interest in the premises]

PRESCRIBED TERMS UNDER REGULATION 13 OF THE RETIREMENT VILLAGES (CONTRACTUAL ARRANGEMENTS) REGULATIONS 2017

Primacy of the Retirement Villages Act 1986 and regulations

Basic obligations of the owner and manager

[name or abbreviation of the owner/manager] must—

(a) give exclusive and vacant possession of the resident's premises in a clean and tidy condition; and

(b) use best endeavours to ensure that its tenants, employees and invitees or other persons lawfully on village premises comply with the by-laws relating to the village; and

(c) if the manager is required to carry out repairs or replacements
to the common facilities and other areas under its control that are funded from maintenance charges, promptly carry out repairs or replacements necessary for the safety or security of residents; and

(d) obtain the resident's consent to enter the resident's premises unless in an emergency or if a resident's safety or property is endangered, subject to any other term that enables entry for reasonable cause on reasonable notice; and

(e) give receipts for payments made by the resident and keep a record of such payments.

Basic obligations of the resident

The resident must—

(a) use best endeavours to ensure that the resident's invitees or other persons lawfully on the resident's premises comply with the by-laws relating to the village; and

(b) respect the rights of other residents and persons in the village; and

(d) respect the rights of [name or abbreviation of owner/manager], its employees and agents to work free from harassment and intimidation; and

(e) not adversely affect the occupational health and safety of people working in the village; and

(f) if [name or abbreviation of owner/manager] exercises a right to relocate the resident to other premises with the consent of the resident, not withhold consent unreasonably.

Basic rights of the resident

The resident has the right—

(a) to any payment that [name or abbreviation of owner/manager] is liable to make consequent on the resident leaving the village or dying, unaffected by termination of the residence contract or the management contract, whether for breach of contract or otherwise; and

(c) [if the resident's only obligation in relation to the condition of the resident's premises is to remedy damage and if the resident does not share in any capital gain] not to be liable for fair wear and tear to the resident's premises.

General

(b) [name or abbreviation of owner/manager] and the resident must deal with each other in good faith.

MATTERS REQUIRED BY REGULATION 11 OF THE RETIREMENT VILLAGES (CONTRACTUAL ARRANGEMENTS) REGULATIONS 2017 TO BE ADDRESSED

Costs payable on entry [refer to regulation 11(2)(j)]

Costs payable during residency [refer to regulation 11(2)(k) and (4)(c)]

Costs payable on departure [refer to regulation 11(2)(l)]

Legal costs [refer to regulation 11(2)(i) and (4)(b)]

Costs of renovation or reinstatement [refer to regulation 11(2)(a)]

Resident's exit entitlement [refer to regulation 11(2)(m) and (n)
and 11(4)(h) and (i)]

Adjustments to maintenance charges [refer to regulation 11(4)(e)]

Special levies [refer regulation 11(4)(g)]

Use of maintenance charges [refer to regulation 11(4)(d)]

Maintenance of the resident's premises [refer to regulation 11(2)(p)]

The repair and maintenance procedure [refer to regulation 11(4)(f)]

Village insurance [refer to regulation 11(2)(o) and (4)(j)]

Consultation on changes to services [refer to regulation 11(4)(n)]

Any restrictions relating to the resident's premises [refer to regulation 11(2)(a) to (g)]

Manager's right of access to resident's premises [refer to regulation 11(4)(a)]

Termination and amendment of the contract [refer to regulation 11(2)(r) and (s) and (4)(k) and (l)]

The village by-laws [refer to regulation 11(2)(t) and (4)(m)]

OTHER TERMS—WHICH MUST NOT INCLUDE ANY TERM PROHIBITED BY THE RETIREMENT VILLAGES ACT 1986 OR REGULATIONS

Part D

Regulation 14(4)

[TRADING NAME OF VILLAGE]

RESIDENCE AND MANAGEMENT CONTRACT

[on front page of contract] COOLING-OFF RIGHT Under section 24 of the Retirement Villages Act 1986, you may cancel this contract at any time before the expiry of 3 clear business days after you have signed this contract, by— giving a notice of cancellation to [name or abbreviation of owner/manager] or our agent; orsending the notice to [name or abbreviation of owner/manager] at the above mentioned address for service of notices or to the address of our agent. If you cancel, [name or abbreviation of owner/manager] may retain $100 or 0·2% of the in-going contribution, whichever is greater.

Date contract signed:

Name and address of village owner:

Address for service of notices:

Name and address of village manager:

Address for service of notices:

Name and address of resident:

Address of resident's premises:

Date of resident's occupation of resident's premises/date of resident's right to occupy premises [delete whichever is inapplicable]:

Date contract commences [if different from above]:

Term of contract/date contract expires [delete whichever is inapplicable]:

Garage, storeroom and parking entitlements:

Fixtures, fittings and furnishings provided by the village owner with the resident's premises are as follows:

[insert services and where applicable date service is to be provided or made available]

OPERATIVE WORDS

[insert any desired statement of the nature or operation of the contract, for instance, in relation to the residence contract, the grant of the interest in the premises]

PRESCRIBED TERMS UNDER REGULATION 13 OF THE RETIREMENT VILLAGES (CONTRACTUAL ARRANGEMENTS) REGULATIONS 2017

Primacy of the Retirement Villages Act 1986 and regulations

Basic obligations of the owner

[name or abbreviation of owner] must—

(a) give exclusive and vacant possession of the resident's premises in a clean and tidy condition; and

(b) use best endeavours to ensure that the owner's tenants, employees and invitees or other persons lawfully on village premises comply with the by-laws relating to the village; and

(d) give receipts for payments made by the resident and keep a record of such payments.

Basic obligations of the manager

[name or abbreviation of manager] must—

(a) use best endeavours to ensure that the manager's tenants, employees and invitees or other persons lawfully on village premises comply with the by-laws relating to the village; and

(d) give receipts for payments made by the resident and keep a record of such payments.

Basic obligations of the resident

The resident must—

(a) use best endeavours to ensure that the resident's invitees or other persons lawfully on the resident's premises comply with the by-laws relating to the village; and

(b) respect the rights of other residents and persons in the village; and

(d) respect the rights of [names or abbreviations of owner and manager], their employees and agents to work free from harassment and intimidation; and

(e) not adversely affect the occupational health and safety of people working in the village; and

(f) if [name or abbreviation of owner and/or manager—as applicable] exercises a right to relocate the resident to other premises with the consent of the resident, not withhold consent unreasonably.

Basic rights of the resident

The resident has the right to—

(a) any payment that [name or abbreviation of owner] is liable to make consequent on the resident leaving the village or dying, unaffected by termination of the residence contract or the management contract, whether for breach of contract or otherwise; and

(b) remove any fixture that the resident has added to the resident's premises (for which there is no agreement to leave in place) at any time before permanently vacating the premises, subject to making good any damage caused by the removal; and

General

(b) [names or abbreviations of owner and manager] and the resident must deal with each other in good faith.

MATTERS REQUIRED BY REGULATION 11 OF THE RETIREMENT VILLAGES (CONTRACTUAL ARRANGEMENTS) REGULATIONS 2017 TO BE ADDRESSED

The owner

Costs payable on entry [refer to regulation 11(2)(j)]

Costs payable during residency [refer to regulation 11(2)(k)]

Costs payable on departure [refer to regulation 11(2)(l)]

Owner's legal costs [refer to regulation 11(2)(i)]

Costs of renovation or reinstatement [refer to regulation 11(2)(q)]

Resident's exit entitlement [refer to regulation 11(2)(m) and (n)]

Maintenance of the resident's premises [refer to regulation 11(2)(p)]

Village insurance [refer to regulation 11(2)(o)]

Any restrictions relating to the resident's premises [refer to regulation 11(2)(a) to (g)]

The manager

Costs payable during residency [refer to regulation 11(4)(c)]

Manager's legal costs [refer to regulation 11(4)(b)]

Adjustments to maintenance charges [refer to regulation 11(4)(e)]

Use of maintenance charges [refer to regulation 11(4)(d)]

The repair and maintenance procedure [refer to regulation 11(4)(f)]

Consultation on changes to services [refer to regulation 11(4)(n)]

Special levies [refer regulation 11(4)(g)]

Resident's exit entitlement [refer to regulation 11(4)(h) and (i)]

Village insurance [refer to regulation 11(4)(j)]

Manager's right of access to resident's premises [refer to regulation 11(4)(a)]

Other

Termination and amendment of the contract [refer to regulation 11(2)(r) and (s) and (4)(k) and (l)]

The village by-laws [refer to regulation 11(2)(t) and (4)(m)]

OTHER TERMS—WHICH MUST NOT INCLUDE ANY TERM PROHIBITED BY THE RETIREMENT VILLAGES ACT 1986 OR REGULATIONS

═════════════

Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

The Retirement Villages (Contractual Arrangements) Regulations 2017, S.R. No. 67/2017 were made on 4 July 2017 by the Lieutenant-Governor as the Governor's Deputy, with the advice of the Executive Council, under section 43 of the Retirement Villages Act 1986, No. 126/1986 and came into operation on 30 July 2017: regulation 3.

The Retirement Villages (Contractual Arrangements) Regulations 2017 will sunset 10 years after the day of making on 4 July 2027 (see section 5 of the Subordinate Legislation Act 1994).

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided regulation, rule or clause of a Schedule is amended by the insertion of one or more subregulations, subrules or subclauses the original regulation, rule or clause becomes subregulation, subrule or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original regulation, rule or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in a Statutory Rule which is made on or after
1 January 2001 form part of that Statutory Rule. Any heading inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
This includes headings to Parts, Divisions or Subdivisions in a Schedule; Orders; Parts into which an Order is divided; clauses; regulations; rules; items; tables; columns; examples; diagrams; notes or forms.
See section 36(1A)(2A)(2B).

• Examples, diagrams or notes

All examples, diagrams or notes included in a Statutory Rule which is made on or after 1 January 2001 form part of that Statutory Rule. Any examples, diagrams or notes inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, form part of that Statutory Rule. See section 36(3A).

• Punctuation

All punctuation included in a Statutory Rule which is made on or after
1 January 2001 forms part of that Statutory Rule. Any punctuation inserted in a Statutory Rule which was made before 1 January 2001, by a Statutory Rule made on or after 1 January 2001, forms part of that Statutory Rule.
See section 36(3B).

• Provision numbers

All provision numbers included in a Statutory Rule form part of that Statutory Rule, whether inserted in the Statutory Rule before, on or after
1 January 2001. Provision numbers include regulation numbers, rule numbers, subregulation numbers, subrule numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of a Statutory Rule is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of a Statutory Rule. See section 36(3)(3D)(3E).

2 Table of Amendments

There are no amendments made to the Retirement Villages (Contractual Arrangements) Regulations 2017 by statutory rules, subordinate instruments and Acts.

3 Amendments Not in Operation

There are no amendments which were Not in Operation at the date of this publication.

4 Explanatory details

Reg. 4(a): S.R. No. 99/2006 as amended by S.R. Nos 52/2009, 171/2013 and 78/2016 and extended in operation by S.R. No. 89/2016. ↑
Reg. 4(b): S.R. No. 52/2009. ↑
Reg. 4(c): S.R. No. 171/2013. ↑
Reg. 4(d): S.R. No. 78/2016. ↑

1 Retirement Villages (Contractual Arrangements) Regulations 2017

Version No. 001

Retirement Villages (Contractual Arrangements) Regulations 2017

S.R. No. 67/2017

Version as at
30 July 2017

TABLE OF PROVISIONS

Regulation Page

1 Objectives 1

2 Authorising provision 1

3 Commencement 2

4 Revocation of Regulations 2

5 Definitions 2

6 Condition for refund of in-going contribution to a non-owner resident 3

7 Payment of certain aged care costs 5

8 Calculation of amount of refundable in-going contribution if original in-going contribution based on market value 8

9 Calculation of amount of refundable in-going contribution if original in-going contribution less than market value 9

10 Matters that must not be included in residence or management contracts 9

11 Matters that must be included in residence and management contracts 11

12 Matters that may be included in residence or management contracts 16

13 Prescribed terms for residence and management contracts 16

14 Forms for residence and management contracts 16

15 Regulations not to apply to agreement to lease or contract of sale 17

16 Contracting out 18

17 Transitional provisions 18

Schedule 1—Conditions to be included in certain residence contracts 20

Schedule 2—Conditions to be included in certain residence contracts 22

Schedule 3—Calculation of refundable in‑going contribution based on market value 24

Schedule 4—Calculation of refundable in‑going contribution where in-going contribution less than market value 26

Schedule 5 29

Schedule 6 33

═════════════

Endnotes 48

1 General information 48

2 Table of Amendments 50

3 Amendments Not in Operation 51

4 Explanatory details 52

Version No. 001

Retirement Villages (Contractual Arrangements) Regulations 2017

S.R. No. 67/2017

Version as at
30 July 2017

Several recurring legal and economic concepts structure the instrument; they determine timing, valuation and payment flows between residents (or their legal personal representatives), owners/managers of retirement villages, estate agents and approved providers of residential aged care.

Refundable in‑going contribution and entitled person

A refundable in‑going contribution is the part of a resident's in‑going contribution that the resident is entitled to recover under s 26(1) of the Act. The Regulations operate to protect the timing and calculation of that refund when a resident (typically a non‑owner resident) departs or enters residential aged care (see regulation 6 and regulation 7).
The Regulations define an "entitled person" for the purposes of the aged‑care bridging rules in regulation 7. An entitled person is a former non‑owner resident, all or part of whose in‑going contribution is refundable, who is not yet contractually entitled to the refund, has been accepted into residential care under the Aged Care Act and who must make an accommodation payment to the approved provider (regulation 7(1)).

Determined date and timing triggers

The "determined date" fixes the running of several time limits: it is the latest of 6 months after vacant possession is delivered, or 6 months after entering residential care under the Aged Care Act, or the day the refundable accommodation deposit is required by the approved provider (regulation 5). This single temporal anchor drives when owners must make payments to providers (regulation 7(3)) and when residents may claim refunds (regulation 6).

Proxy amount and valuation mechanics

Where an entitled person becomes entitled before a new resident has paid an in‑going contribution for the premises, the Regulations create the concept of a "proxy amount" to stand in for the next in‑going contribution (Schedules 3 and 4). That proxy amount is either the current market value (Schedule 3 clause 3; Schedule 4 clause 6) or an indexed version of the original in‑going contribution (Schedule 4 clause 4) where the original contribution was set below market value.
For valuation disputes, the independent valuer pathway is used: either a valuer agreed by the parties or, if they cannot agree, a valuer appointed by the President of the Victorian Division of the Australian Property Institute (regulation 7(10); Schedule 3(3); Schedule 4(6)).

Bridge payment to aged‑care providers and caps

Regulation 7 creates a mechanism for owners to pay either an amount reasonably estimated to equal the unpaid refundable in‑going contribution (up to the refundable accommodation deposit) or, where the resident elects daily accommodation payments, to pay the daily payments as they fall due (regulation 7(2)-(4)). The owner may cap the payment to no more than 85 per cent of the owner’s reasonable estimate of the unpaid refundable in‑going contribution (regulation 7(6)). The owner may deduct such payments from the refund otherwise payable under s 26 of the Act (regulation 7(7)).

Contractual content controls

The Regulations carve out three lists for contract drafters: things a residence or management contract must not include (regulation 10), matters that must be included (regulation 11), and matters that may be included (regulation 12). The "must not" list includes exclusions of owner liability, unfair liquidated damages other than forfeiture of deposits, and relocation without a resident's consent except in emergencies (regulation 10).
Regulation 13 prescribes specific contract terms (Schedule 5) that are to be included and treated as included in residence and management contracts; Schedule 6 provides contractual forms and a layout for compliance (regulation 14).

Sale/marketing process protections

The Schedules (particularly Schedule 1 and Schedule 2) set out owner obligations and resident options when a non‑owner resident notifies the intention to vacate; these clauses mandate owner engagement with estate agents, monthly summaries of inquiries, disclosure of offers and constraints on owner‑imposed charges (Schedule 1 clauses 1-13; Schedule 2 clauses 1-9). Schedule 1 contains additional provisions on resident price instructions and mutual agreement on sale terms (Schedule 1 clauses 7-12).

Primacy and non‑derogation

The prescribed terms and the primacy language in Schedule 5 state explicitly that contracts must comply with the Retirement Villages Act 1986 and the Regulations, and that any inconsistency renders contract terms void to the extent of inconsistency (Schedule 5 Part A and Part B).

These concepts are building blocks. They allocate timing risk (who pays in the short term for aged care accommodation), valuation risk (how to set proxy amounts, who pays valuation costs), and transaction costs (appointment of estate agents, sale processes, record‑keeping and notices). The Regulations answer a set of recurrent private‑law problems generated at the intersection of retirement village exit mechanics and Commonwealth aged‑care entry costs.

The Regulations create duties and rights that fall on a narrow but interconnected set of parties. Identify the affected actors and the concrete ways they are implicated.

Owners of retirement villages

Owners are the primary duty‑bearers under the Regulations. They must include specified contract terms (regulation 11), must not include prohibited terms (regulation 10), and must follow the payment mechanics to approved providers where an entitled person elects to use refundable accommodation deposits or daily accommodation payments (regulation 7(2)-(4)). Owners must provide a reasonable estimate of unpaid refundable in‑going contributions and of current market value within 14 days of a notice (regulation 7(8)-(9)). Owners can deduct payments made to approved providers from amounts payable under s 26 (regulation 7(7)). Owners may also apply to the Tribunal on grounds of undue hardship to pay daily accommodation payments instead of a lump sum refundable accommodation deposit (regulation 7(5)).

Managers of retirement villages

Managers who enter management contracts must include specified content and comply with the prescribed terms in Schedule 5 Part B (regulation 11(3)-(4), regulation 13). Where the owner and the manager are the same entity, combined forms are provided (regulation 14(3)). Managers' obligations include record‑keeping, the repair and maintenance procedure, and consultation processes where a change in services will materially affect residents (regulation 11(4)(f), (n); Schedule 5 Part B). Managers are subject to the same prohibition on excluding or modifying key protections (regulation 16).

Non‑owner residents and entitled persons

Non‑owner residents are the principal beneficiaries of many protections. The Regulations target contracts with non‑owner residents for the purposes of s 26(2)(c) of the Act (regulation 6). Those residents are entitled to recover refundable in‑going contributions and, where they enter residential care, to have owners pay aged‑care accommodation costs to approved providers subject to the rules in regulation 7. Non‑owner residents also gain procedural rights in the sale process (Schedules 1 and 2), and contractual protections such as the right to remove fixtures and to receive exit payments unaffected by termination (Schedule 5 Part A).

Approved providers of residential aged care

Approved providers under the Aged Care Act are recipients of payments made by village owners under regulation 7. The Regulations create a statutory pathway by which an owner can pay approved providers (either a reasonable estimate up to an RAD or daily accommodation payments on request) to enable the resident's entry into residential care.

Estate agents and valuers

Estate agents are engaged under the Schedules: Schedule 1 and Schedule 2 require the owner to ask the resident about using an estate agent not associated with the village and to appoint an agreed agent where requested (Schedules 1 and 2 clauses 1-3). Valuers are required under the valuation mechanics in regulation 7(10) and Schedules 3 and 4; if parties cannot agree on a valuer, a valuer is to be appointed by the President of the Victorian Division of the Australian Property Institute (regulation 7(10); Schedule 3(3); Schedule 4(6)).

Residents committees and third parties

The Regulations protect residents' committee operation against restrictions in contracts (regulation 10(k)). They also interact with owners corporations indirectly by excluding owners corporation insurance policies from those the owner must take out (regulation 11(2)(o) and 11(4)(j)).

Tribunal and valuation arbitration officials

The Victorian Civil and Administrative Tribunal (or another tribunal) is referenced as the forum to which an owner may apply for relief from the lump sum payment obligation on grounds of undue hardship (regulation 7(5)). The President of the Victorian Division of the Australian Property Institute performs a technical appointment role where parties cannot agree on a valuer (regulation 7(10); Schedule 3(3); Schedule 4(6)).

Other legal frameworks and regulators

The Regulations interact with the Aged Care Act and the Estate Agents Act for definitions and operational interfaces (regulation 5 and Schedules). They also operate within the broader statutory framework of the Retirement Villages Act 1986, which they implement and give detailed contractual form to under the Act’s authorising provision (regulation 2).

Collectively, the principal impacts fall on owners/managers (new administrative and payment obligations, content restrictions on contracts), on non‑owner residents (enhanced timing and procedural protections and sale‑process rights), and on third parties (valuers, estate agents, approved providers) who are brought into defined roles and cost‑sharing arrangements by the Regulations.

The Regulations allocate a range of clear duties to owners and managers and preserve rights for residents. Below are the principal operational duties and legally protected rights, with direct reference to the enabling clauses.

Duties imposed on owners and managers

Contract content duties: Residence contracts must specify mandatory items including dates, identities, premises, duration, parking and storage entitlements, fixtures and fittings, and the date of occupation (regulation 11(1)(a)-(h)). Management contracts must specify the manager, services to be provided and the contract term (regulation 11(3)(a)-(f)). Both contract types must address a list of matters such as alteration rights, transfer rights, restrictions, access rights, maintenance and insurance, termination and the time and method of calculating refundable in‑going contributions (regulation 11(2) and 11(4)).
Prohibitions on contract content: Contracts must not require residents to have a will, to take out insurance other than motorised wheelchair liability, to pay the owner’s correspondence costs or legal costs in enforcement, or to forfeit more than a deposit as liquidated damages; they must not exclude or limit owner/manager liability for breach; and they must not permit relocation without consent except in emergencies (regulation 10(a)-(l)).
Payment duties relating to aged care bridge payments: Where an entitled person elects to use a refundable accommodation deposit under the Aged Care Act, and gives notice to the owner, the owner must, if requested, pay to the approved provider either the owner’s reasonable estimate of the unpaid refundable in‑going contribution (if that estimate is equal to or less than the RAD) or the RAD (if the estimate exceeds the RAD) (regulation 7(2)(a)-(b)). Where daily accommodation payments are elected, the owner must pay those daily payments as they fall due on request (regulation 7(4)). Timing rules require payment on or before the determined date if notice has been given at least 14 days before the determined date, otherwise not more than 14 days after notice (regulation 7(3)). An owner may cap this requirement at 85 per cent of the unpaid refundable in‑going contribution as reasonably estimated by the owner (regulation 7(6)).
Valuation and notice duties: Owners must notify an entitled person within 14 days of the owner’s reasonable estimate of the unpaid refundable in‑going contribution and the owner’s estimate of current market value (regulation 7(8)-(9)). If the entitled person disagrees within 14 days, an independent valuer is appointed under the nominated process (regulation 7(10)), and valuation costs are shared equally (regulation 7(11)). Similar valuation duties appear in Schedule 3 and Schedule 4 where proxy amounts are to be determined.

Rights secured for residents and entitled persons

Right to prompt refund under contractual conditions: If a residence contract with a non‑owner includes the clauses in Schedule 1, the non‑owner resident or their legal personal representative is entitled to recover the amount refundable under s 26(1) on a day not more than 14 days after the earlier of the day on which a payment is made by another person under a residence contract equal to or more than the amount owed, or the day another person takes up residence (regulation 6(1)(a)(i)-(ii)). The resident may also recover on or after a day a court or tribunal finds that the owner has committed a material breach of Schedule 1 clauses included in the contract (regulation 6(1)(b)).
Alternative recovery conditions for contracts where the in‑going contribution was less than market value: Where the contract meets the conditions in regulation 6(2) and includes Schedule 2 clauses, a resident has similar entitlements to recover within 14 days after the earlier of the relevant payment or occupation events, or after a court/tribunal finding of breach (regulation 6(3)).
Sale and marketing process rights: Schedules 1 and 2 give residents rights to request that the residence right be sold through an estate agent not otherwise involved in the village, to have an estate agent appointed and agreed, to limit owner actions on price without resident agreement, to receive monthly written summaries of inquiries, and to be promptly informed of offers (Schedules 1 and 2 clauses 1-11).
Right to remove fixtures and to receive exit payments unaffected by contract termination: The prescribed terms state the resident has the right to remove any fixture they added before permanently departing subject to making good damage, and the resident retains the right to any payment an owner is liable to make consequent on permanent departure or death (Schedule 5 Part A Basic rights of the resident).
Cooling‑off right: The model forms reproduce the statutory cooling‑off right under s 24 of the Act, including the permitted retention on cancellation ($100 or 0.2% of the in‑going contribution, whichever is greater) (Schedule 6 front pages).

Duties that bind both owner and manager where roles overlap

Regulation 14 and Schedule 6 provide combined forms when one party acts as both owner and manager; the combined forms allocate the same duties and rights while clarifying that, where a right or obligation is ascribed to both but legally belongs to only one, it may be omitted for the other party (regulation 14(3)-(5)).

Procedural and dispute rights

Valuation dispute mechanism: An entitled person who disputes the owner’s estimate within 14 days triggers independent valuation by agreement or appointment (regulation 7(10)), and cost‑splitting (regulation 7(11); Schedule 3(3)-(4); Schedule 4(7)).
Tribunal relief for owners: An owner who considers that paying an RAD would cause undue hardship may apply to the Tribunal for an order to pay daily accommodation payments instead (regulation 7(5)). Conversely, residents have recourse to courts or tribunals for findings that trigger refund rights (regulation 6(1)(b) and 6(3)(b)).

Limitations to duties and rights

The owner’s obligation to pay an RAD is limited by the 85 per cent cap (regulation 7(6)). Payment obligations under regulation 6(1) and 6(3) are subject to the reduction that applies where whole or part of the refundable in‑going contribution has already been paid under regulation 7 (regulation 6(4)). Contracts annexed to sale or lease agreements may be governed narrowly (regulation 15).

Taken together, the Regulations create a mapped set of operational duties (content, payment, notice, valuation) for owners and managers, and provide residents with time‑bound remedies and sale‑process protections intended to speed the return of refundable in‑going contributions and reduce friction when residents enter residential aged care.

The Regulations do not institute a separate penal regime or specify monetary fines within their text. Their enforcement architecture instead relies on three mechanisms: civil contract invalidation, statutory duties enforceable by courts and tribunals, and prescribed administrative processes for valuations and payments.

Voidness of contracting out

Any provision in a retirement village contract or document that purports to exclude, modify or restrict the operation of regulations 10, 11, 12 or 13 is void (regulation 16(1)). The voidness is targeted: it disables attempts to contract out of the mandatory content, prohibited items and prescribed terms. Regulation 16(2) provides for severability to preserve otherwise enforceable provisions that are separable from any void provisions.

Civil enforcement through statute and contract

Where an owner fails to comply with contractual conditions that have been prescribed as conditions for the purposes of s 26(2)(c) of the Act (for example where a residence contract includes the clauses in Schedule 1 or 2 and the owner fails to observe the marketing and sale obligations), the resident’s right to recover under s 26(1) may be accelerated; enforcement would typically proceed by way of contractual or equitable remedies before courts or tribunals (see regulation 6(1)-(3)). The Regulations do not create a new private right of action separate to existing causes; they embed statutory conditions into the contractual regime.

Tribunal role and procedural remedies

Regulation 7(5) expressly contemplates an owner seeking relief from an immediate lump‑sum payment obligation by applying to the Tribunal for an order permitting payment of daily accommodation payments instead, on grounds of undue hardship. Regulation 6(1)(b) and 6(3)(b) allow residents to recover the refundable in‑going contribution on or after the day a court or tribunal makes a finding that the owner has committed a material breach of the Schedule 1 clauses or has breached Schedule 1 clauses included in the contract. These provisions point to the Tribunal (or a court) as the enforcement forum in contested cases.

Valuation dispute resolution

Valuation disagreements are managed via appointment of an independent valuer by agreement or, if the parties cannot agree, by the President of the Victorian Division of the Australian Property Institute (regulation 7(10); Schedule 3(3); Schedule 4(6)). Costs of valuation are to be shared equally between the entitled person and the owner (regulation 7(11)). This is a binding administrative pathway for resolving the proxy amount used in refund calculations. The Regulations do not provide an express appeal route against a valuer’s report within their own text; recourse would be through ordinary legal channels.

No express monetary penalties in the instrument

Unlike some subordinate instruments that attach penalties to breaches, these Regulations do not set out express infringement fines or criminal offences. Enforcement therefore depends on statutory remedies under the Retirement Villages Act 1986, contract remedies, tribunal orders, and the courts. The Regulations strengthen practical enforceability by making critical contract terms mandatory and voiding contracting out (regulations 10-13 and regulation 16), thereby limiting the ability of owners or managers to opt out of specified duties.

Administrative record, notices and receipts as evidentiary tools

The Regulations require owners and managers to give receipts and keep records of payments (Schedule 5 Part A and Part B basic obligations). These obligations are not penalised in the Regulations but operate as compliance and evidentiary requirements that will support enforcement actions where duties are alleged to have been breached.

In short, the Regulations rely on civil enforcement, tribunal intervention and contract invalidation rather than on newly created penal offences. Practitioners should therefore plan for litigation and tribunal routes, and for operational compliance to avoid contract invalidation and the costs of dispute resolution.

The Regulations are not a freestanding code. They sit within a network of Commonwealth and Victorian statutory instruments and institutional arrangements. The Regulations themselves specify many of these cross‑references.

Primary statutory framework and authorisation

The Regulations are made under s 43 of the Retirement Villages Act 1986 and give effect to s 26(2)(c) by prescribing the conditions that must be included in certain residence contracts (regulations 1 and 2; regulation 6). Schedule 5 emphasises primacy by stating that contracts must comply with the Act and regulations and that inconsistent contract terms are void to the extent of inconsistency (Schedule 5 Parts A and B).

Interaction with the Aged Care Act 1997 (Commonwealth)

The Regulations explicitly incorporate definitions and operational concepts from the Aged Care Act 1997. The "entitled person" concept presumes acceptance into residential care under the Aged Care Act and refers to refundable accommodation deposits (regulation 5 definitions; regulation 7(1)). Regulation 7 provides a practical interface: when a resident moves into aged care and must make an accommodation payment to an approved provider under Commonwealth law, a retirement village owner may be required to make a corresponding payment to that provider. The Regulations therefore bridge state contract mechanics with federal aged‑care funding flows.

Estate Agents Act 1980

The Schedules rely on the Estate Agents Act 1980 for the definition of "estate agent" used in the sale‑process clauses (Schedules 1 and 2). Where the Schedules require an estate agent not otherwise involved in operation of the village to be appointed, that appointment and the agent’s conduct will be subject to the regulatory regime under the Estate Agents Act.

Valuation standards and the Australian Property Institute

The valuation appointment mechanism names the Victorian Divisional Council of the Australian Property Institute as the appointing body if parties cannot agree on a valuer (regulation 7(10); Schedule 3(3); Schedule 4(6)). That incorporates, by reference, the institutional standards and professional regulatory mechanisms of the Institute into valuation disputes.

Subordinate Legislation and Interpretation Acts

The Endnotes cite the Subordinate Legislation Act 1994 and the Interpretation of Legislation Act 1984. The Endnotes note that the Regulations will sunset ten years after the date of making under the Subordinate Legislation Act (Endnote 1). The Interpretation of Legislation Act affects headings, examples and other interpretive matters for subordinate instruments, and the publication notes state those interpretive rules apply (Endnotes 1 and 4).

Contracts annexed to sale or lease agreements and carve‑outs

Regulation 15 states that where a residence contract is annexed to an agreement to lease, or a management contract is annexed to a contract of sale, regulations 10, 11, 12 and 13 apply to the annexed contract but do not apply to the agreement to lease or the contract of sale. That delineates the boundary between real‑property transfer documents (governed by sale and transfer law) and the resident/manager contractual obligations governed by these Regulations.

Overlap with owners corporation law and exclusions

Regulation 11 requires the owner/manager to take out insurance policies in relation to the retirement village, but explicitly excludes insurance policies in relation to any owners corporation (regulation 11(2)(o) and 11(4)(j)). That punts ownership and insurance issues for common property governed by owners corporation law outside of these Regulations.

No express displacement of general contract or property law

The Regulations do not purport to displace general property or contract law, but they do make many contractual terms mandatory and void agreements that attempt to opt out of those terms (regulation 16). Schedule 5 reinforces that any term inconsistent with the Act or Regulations is void to the extent of the inconsistency.

Operational consequence

Practitioners must therefore read residence and management contracts as hybrid instruments: they are state‑regulated consumer contracts that directly interact with federal aged‑care entitlements and payments, are influenced by professional standards for valuation and estate agency, and are constrained by general property, sale and transfer law when annexed to sale or lease documents.

The Regulations were made on 4 July 2017 and commenced on 30 July 2017 (regulation 3; Endnotes). They replaced earlier Retirement Villages (Contractual Arrangements) Regulations instruments (regulation 4), specifically revoking the 2006 Regulations and subsequent amending instruments: the 2006 base instrument (S.R. No. 99/2006) and the 2009, 2013 and 2016 amending instruments (regulation 4(a)-(d) and Endnote 4). The text in the Endnotes confirms the instrument was made by the Lieutenant‑Governor as the Governor’s Deputy with Executive Council advice (Endnotes 1 and 4).

Subsequent amendment record

The published Endnotes include a Table of Amendments (Endnote 2) and state there are no amendments made to the Retirement Villages (Contractual Arrangements) Regulations 2017 by statutory rules, subordinate instruments and Acts at the time of publication (Endnote 2). They also state there are no amendments not in operation (Endnote 3).

Sunset and lifecycle

The Endnotes note that under s 5 of the Subordinate Legislation Act 1994 the Regulations will sunset ten years after making, meaning they will sunset on or about 4 July 2027 unless extended or remade (Endnote 1). Practitioners should therefore be alert to the statutory sunset date and to any consequential re‑making or amendment activity as that date approaches.

Transitional provisions and grandfathering

Regulation 17(1) provides that these Regulations do not apply to a residence contract entered into and in force immediately before commencement of the 2006 Regulations. Regulation 17(2)-(3) creates a narrow transitional treatment for contracts entered between the 2006 Regulations’ commencement and 16 September 2006 that do not include Schedule 1 or 2 clauses; in those circumstances, a pre‑existing contract condition may nonetheless be treated as a condition for s 26(2)(c) if it entitles recovery of the refundable amount as a consequence of a payment by another person under a residence contract or any other event that precedes such payment (regulation 17).

Interpretive and publication history

The Endnotes refer to the Interpretation of Legislation Act 1984 for style and interpretive changes and note that explanatory details appear in the Endnotes but are not part of the Statutory Rule (Endnote 1 and Endnote 4). The Regulations therefore reflect contemporary drafting and publication conventions and were packaged with explanatory material, but the Endnotes clarify that that material is not operative law.

No recorded subsequent statutory amendments

The legislative history included in the instrument records no later statutory amendments to the instrument as of the version published (Endnote 2). Any future amendment would be recorded in subsequent statutory rules and visible in the official gazette and consolidated legislation databases.

For practitioners, the practical takeaway is that the 2017 Regulations replaced an earlier multi‑instrument corpus, ran unamended as published, and carry an automatic statutory sunset provision requiring attention near 2027 for renewal, repeal or further reform.

The instrument itself does not list cases or litigation outcomes. The published text contains no references to court decisions, tribunal determinations or judicial interpretation of these Regulations. The Endnotes and Table of Amendments likewise record no litigation history or reported judicial considerations. Accordingly, the source provides no litigation precedents to cite.

What the Regulations do provide, however, are pathways that will commonly give rise to disputes that practitioners can expect to litigate or arbitrate in courts and tribunals:

Timing and payment disputes: An owner’s estimate of the unpaid refundable in‑going contribution, an owner’s decision to pay up to 85 per cent, and the owner’s deduction rights (regulation 7(6)-(7), (8)-(11)) create contested factual and valuation issues that will likely be litigated or brought to the Tribunal where parties cannot agree on the estimate or valuation method.
Contractual breach claims tied to accelerated refund rights: Regulation 6 allows for a resident or their legal personal representative to recover the refundable amount within 14 days of certain events or on or after a court or tribunal finding of a material breach of Schedule 1 clauses included in the contract (regulation 6(1)(a)-(b)). Those provisions specify that a court or tribunal finding will trigger payment rights; disputes over whether an owner has committed a "material breach" of the Schedule clauses could become the subject of litigation.
Valuation disputes: The procedural valuation route in regulation 7(10) and Schedule 3 and 4 (independent valuer agreed or appointed) is administrative, but disagreements about the valuer’s methodology, scope or compliance with appointment instructions are typical litigation subjects. The Regulations allocate the appointment power to a named body (President of the Victorian Division of the Australian Property Institute), which provides a clear institutional locus for challenge if the parties allege procedural unfairness in appointment.
Tribunal jurisdictional applications: Regulation 7(5) expressly contemplates an owner applying to the Tribunal to be permitted to pay daily accommodation payments rather than a lump sum on grounds of undue hardship. These applications, and any resident challenges to them, will involve evidence about the owner’s financial position and the competing interests of the resident and approved provider.

Because the Regulations contain no recorded case law, practitioners should look to related decisions under the Retirement Villages Act 1986 and to Tribunal and superior court decisions that address analogous contract, valuation or consumer protection questions. Where needed, the prescribed procedures (valuation appointment, Tribunal application, 14‑day notice and dispute windows) will structure pre‑litigation steps and determine admissible evidence.

In short, litigation pathways are latent in the instrument’s mechanics, but the instrument itself provides no concrete litigation history to analyse.

The Regulations carry several detailed traps for the unwary drafter, owner, manager and resident. The following "gotchas" are practical compliance and litigation hazards that arise directly from the text.

14‑day notice windows and the "determined date"

The Regulations use tight 14‑day windows for critical steps: the time an entitled person must give notice to trigger owner payments (regulation 7(3)); the owner’s obligation to provide an estimate within 14 days (regulation 7(8)); and the resident’s 14‑day window to dispute the owner’s estimate (regulation 7(10)). Those windows run from operationally significant events defined by the "determined date" (regulation 5). Failure to track those dates precisely can change payment timing and valuation responsibilities with financial consequences.

85 per cent cap on owner payments

Owners are not required to pay more than 85 per cent of their reasonable estimate of the unpaid refundable in‑going contribution (regulation 7(6)). This cap is asymmetric: it limits owner cash‑flow exposure but leaves the resident potentially out of pocket unless the owner is ordered to pay more by a tribunal or unless a purchaser pays out. Practitioners must advise clients that the owner may lawfully retain up to 15 per cent of that estimate at the bridging stage.

Deduction rights reduce refunds

Any amount an owner pays to an approved provider under the bridging rules can be deducted from the amount the resident is entitled to recover under s 26 (regulation 7(7)). Owners and managers must account for these deductions carefully when computing residual exit entitlements and must provide the required estimates and notices to support such deductions (regulation 7(8)-(9)). Residents need to be informed that entries into aged care and owner payments can reduce their later refund.

Proxy amount determination differences (market value vs indexed original)

The calculus for the proxy amount differs depending on whether the original in‑going contribution was based on market value or was set at a lower, non‑market amount. If the original was market‑based, the proxy is the current market value (regulation 8; Schedule 3). If the original was less than market value and set by other factors, Schedule 4 creates an alternative: either an indexed version of the original in‑going contribution (Schedule 4 clause 4 using CPI) or a current market valuation (Schedule 4 clause 6). The presence of multiple routes creates scope for argument over which branch applies and over indexation calculation details. Notably, the CPI formula in Schedule 4 is presented in the instrument with the variables A, B and C described; practitioners should ensure accurate CPI quarter selection per the Schedule 4 definition to avoid mis‑indexing.

Valuation cost allocation

Where the resident is entitled to a share of any excess between their in‑going contribution and the next in‑going contribution, the resident must pay valuation costs in the same proportion; otherwise the owner pays (Schedule 3(4); Schedule 4(7)). That creates an incentive for residents to challenge valuations selectively and for owners to resist valuations where proportionate liability is unclear.

Schedule 1 vs Schedule 2 differences

Schedule 1 and Schedule 2 are similar but not identical. Schedule 1 contains express clauses giving residents a role in setting sale price ranges and in accepting particular offers (Schedule 1 clauses 7, 10, 11, 12), and prohibits unreasonable owner charges (Schedule 1 clause 13). Schedule 2 is shorter and omits some of these resident‑consent rights. Regulation 6 distinguishes when each schedule must be included (regulation 6(1) vs 6(2)-(3)). Getting the applicable schedule wrong in a residence contract can alter resident entitlement to prompt repayment and their control over sale processes.

Prohibited contractual terms and indirect restrictions

Regulation 10 prohibits certain terms, including exclusions of owner/manager liability (regulation 10(f)), requirements for residents to pay enforcement costs (regulation 10(i)), and rights to relocate a resident without consent except in emergencies (regulation 10(j)). However, contract drafts may attempt to achieve similar effects by imposing onerous procedural requirements or escalation clauses. Regulation 16 voids direct contracting out of protections, but indirect restrictions that do not expressly modify a listed regulation may still create litigation over whether they "restrict the operation" of the mandatory provisions.

Contracts annexed to sale or lease documents

Regulation 15 applies the contract content rules to an annexed residence or management contract but not to the sale or lease instrument itself. Parties who combine sale contracts and residence contracts in a single conveyancing package must ensure the annexed contract complies with regulations 10-13 and that the sale or lease separate document is properly drafted to avoid unintended regulatory overlap.

Cooling‑off retention and client expectations

The model forms provide for a cooling‑off retention on cancellation of $100 or 0.2% of the in‑going contribution, whichever is greater (Schedule 6 front pages). Clients who expect full refund on a cooling‑off exercise will be surprised if the retention is levied; agents and solicitors must flag this.

No express monetary penalties in the Regulations

Because the Regulations do not create specific fines or criminal offences, enforcement depends on civil remedies and tribunal orders. Parties relying on regulatory penalties or public enforcement powers will find none here; redress is primarily private‑law and tribunal‑oriented.

Sunset date and future legislative change

These Regulations are subject to a statutory sunset ten years after making (Endnote 1). Owners and managers should anticipate potential change or renewal toward 2027 and avoid long‑term arrangements that assume the current form will remain unchanged.

These gotchas show where small drafting choices or missed procedural steps can generate significant financial consequences. Practitioners should incorporate checklists and calendar triggers into transaction workflows and ensure that contract templates follow the forms and mandatory content precisely (regulation 13 and regulation 14).

Compliance under these Regulations requires a mixture of contract drafting discipline, operational procedures for notices and valuations, financial accounting for payments and deductions, and accessible dispute pathways. Below is a practical checklist and operational blueprint for owners, managers and practitioners.

Contract drafting and forms

Use the model text or mirror its structure: Residency contracts must include the terms set out in Schedule 5 Part A and are taken to include them (regulation 13(1)). Management contracts must include Schedule 5 Part B terms (regulation 13(2)). Regulation 14 prescribes forms in Schedule 6 for residence contracts, management contracts and combined contracts (regulation 14(1)-(4)). Where a single form assigns a right or obligation to both owner and manager but only one legally has it, omit it for the other party (regulation 14(5)).
Avoid prohibited terms: Do not include any of the items in regulation 10 (for example, clauses excluding owner liability, requiring a resident to have a will, or allowing relocation without consent except in emergencies). Regulations 10 and 16 make contracting out void, so remove or revise any problematic provisions (regulation 10 and regulation 16(1)-(2)).
Ensure mandatory content is present and clear: Address the list in regulation 11(2) or 11(4) as applicable , particularly the method of calculating any refundable in‑going contribution, how capital gains or losses are shared, and the timing of refunds (regulation 11(2)(m)-(n); 11(4)(h)-(i)). Insert clauses on insurance (regulation 11(2)(o), 11(4)(j)), maintenance responsibilities (regulation 11(2)(p)), and termination/amendment procedures (regulation 11(2)(r)-(s), 11(4)(k)-(l)).
Include sale/marketing clauses where necessary: If the residence contract is with a non‑owner resident and either Schedule 1 or Schedule 2 applies (regulation 6), incorporate the relevant schedule clauses verbatim or ensure the contract includes those specified obligations (regulation 6 and Schedules 1-2).

Processes for aged‑care bridge payments

Implement notice and calendar triggers keyed to the "determined date": Track when a resident notifies intention to vacate, when vacant possession is delivered and when a person enters residential care so that payment timing under regulation 7(3) is properly met.
Procedure for owner payments: If an entitled person elects to make an accommodation payment by RAD and requests payment, owners must pay either their reasonable estimate of the unpaid refundable in‑going contribution (if the estimate is equal to or less than the RAD) or the RAD (if the estimate exceeds the RAD) (regulation 7(2)). Where daily accommodation payments are elected, the owner must pay those daily payments as they fall due on request (regulation 7(4)).
Respect the 85% cap and deduction right: Owner systems should be configured to limit bridging payments to no more than 85 per cent of the reasonable estimate (regulation 7(6)) and to record any deduction from the resident’s ultimate refund (regulation 7(7)). Ensure accurate ledgers tie payments to future refund calculations.

Valuation and dispute workflow

Provide the mandatory estimate and market value notice within 14 days of the relevant notice from the entitled person (regulation 7(8)). If the resident disputes the estimate within 14 days, initiate an independent valuation process immediately per regulation 7(10) (agree on a valuer or apply to the President of the Victorian Division of the Australian Property Institute).
Budget for valuation costs and cost‑sharing: Establish a cost allocation method in accordance with regulation 7(11) and Schedule 3 and 4 clauses that specify when residents are proportionately liable for valuation costs.

Sale and estate agent practices

If a resident requests an external estate agent under the Schedule 1 or 2 arrangements (Schedules 1 and 2 clause 1-3), have a documented process for asking the resident to respond within 5 business days and for appointing an agreed agent promptly (Schedules 1 and 2 clause 1-4).
Provide monthly written summaries of inquiries and disclose offers promptly (Schedules 1 and 2 clause 8-9). Ensure owner instructions to agents are consistent with best endeavours to secure a residence contract and to procure payment of the in‑going contribution (Schedules 1 and 2 clause 5).

Record‑keeping and receipts

Keep records and issue receipts for all payments made by residents and payments to approved providers as required by Schedule 5 (basic obligations of owner and manager). Document decisions, valuation reports, notices and timelines to support a defence against disputed compliance claims.

Consumer disclosure and cooling‑off

Reproduce the statutory cooling‑off notice prominently on contract front pages as modelled in Schedule 6 and ensure clients understand the permitted retention ($100 or 0.2% of the in‑going contribution) if they cancel within the cooling‑off period (Schedule 6 front pages in Parts A-D).

Internal compliance training and templates

Maintain up‑to‑date contract templates that reflect Schedule 6 formats and Schedule 5 prescribed terms. Train sales, administration and legal staff on the prohibitions in regulation 10 and the mandatory inclusion obligations in regulation 11 to avoid inadvertent contract terms that are void under regulation 16.
Implement compliance checklists for each new resident transaction that confirm: correct schedule inclusion (Schedule 1 or 2 if non‑owner), proxy calculation clause (Schedule 3 or 4 as applicable), payment timing and bridging process, valuation pathway, and written notices to residents within the 14‑day windows.

Tribunal and hardship applications

If an owner considers that immediate payment of a RAD will cause undue hardship, be ready to prepare an application to the Tribunal for an order to pay daily accommodation payments rather than a lump sum (regulation 7(5)). Assemble financial statements and evidence of hardship in advance, and notify residents of the application to manage expectations.

Attorney and representative handling

Where residents have legal personal representatives, ensure notices, valuation disputes and receipts are directed correctly to the representative in line with the contract and the Act. Regulation 6 explicitly contemplates recovery by legal personal representatives (regulation 6(1) and 6(3)).

Monitor legislative and sunset developments

Note the statutory sunset (Endnotes): as the Regulations will automatically sunset unless remade or extended, monitor legislative activity approaching 2027 and prepare to adjust contracts and procedures to any re‑enactment or amendment.

Practical documents to put in place

Template residence contract(s) reflecting Schedule 6 with checkboxes for inclusion of Schedule 1 or 2 and Schedule 3 or 4 as appropriate.
Notice templates for entitled persons and owners' estimates (14‑day notice forms).
Valuation instruction letter and engagement terms consistent with Schedule 3 and 4.
Payment authorisation workflow for payments to approved providers and ledger entries for deduction calculations under regulation 7(7).
Sale marketing protocol aligned with Schedules 1 and 2 to evidence "best endeavours" and to document inquiries and offers.

By following a combination of standardised templates, strict calendar discipline for the 14‑day/6‑month timing rules, clear valuation and cost‑sharing procedures, and record‑keeping, owners and managers can operationalise the Regulations and reduce exposure to disputes and contract invalidation.

Retirement Villages (Contractual Arrangements) Regulations 2017

Plain English Summary

Deep Dive

What it does

Current sections

Retirement Villages (Contractual Arrangements) Regulations 2017

Source text: opening excerpt

1 Retirement Villages (Contractual Arrangements) Regulations 2017

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply