Retirement Villages Act 2016

This

Act may be cited as the Retirement

Villages Act 2016.

The objects of this Act are—

to provide a regulatory framework for the operation of retirement villages in South Australia under which a balance is achieved between the rights and responsibilities of—

residents of retirement villages; and

operators of retirement villages;

to encourage best practice management standards among the operators of retirement villages;

to ensure that there is proper disclosure of information to prospective residents of retirement villages;

to regulate the making, content, operation and termination of residence contracts;

to ensure that residents are properly consulted about matters affecting their residence in the retirement village;

to provide for dispute resolution processes.

In this Act, unless the contrary intention appears—

annual meeting of residents means the meeting required to be convened in accordance with section 33(1)(b);

authorised officer—see section 14;

bailiff means a bailiff appointed under the South

Australian Civil and Administrative Tribunal Act 2013;

business day means any day except a Saturday, Sunday or public holiday;

capital fund means a contingency, sinking or other reserve fund or account established for the purposes of capital replacement or improvements, long‑term maintenance or other similar items in respect of a retirement village;

community retirement village means a retirement village divided into separate residences and common property by a community plan under the Community

Titles Act 1996 or a strata plan under the Strata

Titles Act 1988;

Consumer

Price Index, or CPI, means the Consumer Price Index (All groups index for Adelaide) published by the Australian Bureau of Statistics;

Deputy

President means a Deputy President of the Tribunal appointed under the South

Australian Civil and Administrative Tribunal Act 2013

disclosure statement—see section 21;

dispute resolution policy—see section 45;

domestic partner means a person who is a domestic partner within the meaning of the

Family

Relationships Act 1975, whether declared as such under that Act or not;

eligible person means a person who has attained the age of 55 years and retired from full-time employment;

enforceable voluntary undertaking—see section 64A(1);

exit entitlement means the amount of money that is, under a residence contract, payable by the operator of a retirement village on a person ceasing to reside in the retirement village or when certain conditions specified in the contract are fulfilled and includes an exit entitlement payable in circumstances referred to in section 27(2)(b);

exit fee means the amount of money that is, under a residence contract, payable by a resident of a retirement village on the resident ceasing to reside in the retirement village or on the sale of the resident's right to reside at the retirement village;

Note—

This would include, for example, any deferred management fees, refurbishment costs and remarketing costs.

ingoing contribution means a payment (however described) made by or on behalf of a person in consideration for, or in contemplation of, the person becoming a resident in a retirement village (which includes any deposit paid but does not include a recurrent charge, an exit fee, a special levy or any other payment excluded by the regulations from the ambit of this definition);

operator of a retirement village means the person by whom or on whose behalf the retirement village scheme is administered;

period of occupation—a resident's period of occupation of a residence in a retirement village is the period—

commencing on the day on which the resident enters into occupation of the residence in the retirement village; and

concluding on the day on which the resident ceases to reside in the residence in the retirement village;

Note—

See also subsection (2).

premises condition report—see section 23;

President means the President of the Tribunal appointed under the South

Australian Civil and Administrative Tribunal Act 2013;

recurrent charge means a fee, charge or other amount (as specified in the residence contract) payable by a resident to the operator of a retirement village on a recurrent basis;

register—see section 12;

Registrar means the person for the time being holding or acting in the office of Registrar under section 6;

related body corporate has the same meaning as in the Corporations

Act 2001 of the Commonwealth;

remarketing, in relation to a residence in a retirement village, means the activity undertaken by or on behalf of the operator in advertising or otherwise marketing the sale of a right of occupation of the residence;

remarketing policy—see section 22;

residence means premises or a part of premises designed for separate occupation as a place of residence;

residence contract means a contract under which a person enters into occupation of a residence in a retirement village in accordance with a retirement village scheme;

residence rules means the rules with which residents of a retirement village are expected by the operator to comply;

resident of a retirement village means a person who has entered into occupation of a residence in accordance with the scheme and (subject to the terms of a residence contract) includes a spouse or domestic partner of such a person who—

is residing with that person; or

was residing with that person at the time of their death;

retirement village means a complex of residences or a number of separate complexes of residences (including appurtenant land) occupied or intended for occupation under a retirement village scheme but does not include a complex excluded from the ambit of this definition by the regulations;

retirement village dispute means a dispute between an operator of a retirement village and a resident of the retirement village about the parties' rights and obligations under this Act or the resident's residence contract (which includes, for the avoidance of doubt, a dispute arising in connection with the application of a residence rule);

retirement village scheme or scheme means a scheme established for eligible persons and their spouses or domestic partners, or predominantly for eligible persons and their spouses or domestic partners, under which—

residences are occupied pursuant to a lease or licence; or

a right to occupation of residences is conferred by ownership of shares; or

residences are purchased from the operator subject to a right or option of repurchase; or

residences are purchased by prospective residents on conditions restricting their subsequent disposal, but does not include a scheme under which no resident or prospective resident of a residence pays an ingoing contribution in consideration for, or in contemplation of, admission as a resident under the scheme;

senior manager, in relation to a retirement village, means any person to whom the village manager reports or who is responsible for directing the activities of the village manager (but does not include a person appointed as a receiver and manager of a body corporate);

special levy—see section 21(1)(a)(iii);

special resolution means a resolution passed at a meeting of residents of a retirement village in the following circumstances:

at least 15 business days written notice of the meeting, containing a statement of the proposed special resolution, must have been given to all residents;

the resolution must have been passed by at least 75% of residents who vote at the meeting (either in person or by way of an absentee vote exercised in accordance with this Act);

spouse—a person is the spouse of another if they are legally married;

Tribunal means the South Australian Civil and Administrative Tribunal established under the South

Australian Civil and Administrative Tribunal Act 2013;

village land owner, in relation to a retirement village, means the owner of the land used for the retirement village but does not include an owner who is a resident of the retirement village;

village manager, in relation to a retirement village, means the person responsible for the day to day management of that retirement village but does not include a person appointed as a receiver and manager of a body corporate.

Note—

This could be the operator or a person employed or engaged by the operator to manage the retirement village.

For the purposes of this Act—

a person enters into occupation of a residence in a retirement village on the day on which the person's right of occupation arises (whether or not the person chooses to exercise the right on that day);

a resident's settling-in period is—

the period—

commencing on—

• the day on which the resident enters into occupation of the residence in the retirement village; or

• the day on which the resident signs the residence contract, whichever is later; and

concluding

90 days after the day referred to in subsubparagraph (A);

or

such longer period as may be specified in the resident's residence contract;

a person will be taken to cease to reside in a residence in a retirement village—

when the person (or someone else on behalf of the person) delivers up vacant possession of the residence to the operator; or

when the executor or administrator of the person's estate delivers up vacant possession of the residence to the operator following the person's death; or

if—

the operator decides to terminate the person's right of occupation under

Part 3;

and

the

Tribunal confirms the operator's decision to terminate the right of occupation, at the end of the period fixed by the Tribunal within which the person must vacate the residence;

a person will be taken to have delivered up vacant possession of a residence in a retirement village if—

the residence is no longer occupied; and

all personal property has been removed from the residence (other than property that remains the property of the operator of the retirement village or that is to remain in the residence by agreement with the operator).

Subject to this section—

this

Act applies to retirement villages established either before or after the commencement of this Act; and

this

Act binds the Crown in right of this State and (so far as the legislative power of the State permits) the Crown in any other capacity, but not so as to impose criminal liability on the Crown.

The

Minister may, by notice in the Gazette, confer exemptions from this

Act or specified provisions of this Act—

on specified religious or charitable organisations or religious or charitable organisations of a specified class; or

in relation to specified retirement villages or retirement villages of a specified class.

An exemption under subsection (2) may be conditional or unconditional and may be varied or revoked by subsequent notice in the Gazette.

A person who contravenes or fails to comply with a condition of an exemption is guilty of an offence.

Maximum penalty: $10 000.

Expiation fee: $500.

Note—

This

Act does not apply in relation to aged care facilities under the

Aged

Care Act 1997 of the Commonwealth.

There will be a Registrar for the purposes of this Act.

The

Minister will appoint a Public Service employee to be the Registrar.

The

Minister may assign a Public Service employee to act as the

Registrar—

during a vacancy in the office of Registrar; or

when the Registrar is absent from, or unable to discharge, official duties.

The

Registrar's functions are—

to provide guidance and advice to operators of retirement villages in relation to the operation of, and matters arising under, this Act, in particular the obligations of operators under the Act; and

to provide guidance and advice to residents and prospective residents of retirement villages in relation to the operation of this Act, in particular the obligations, rights and liabilities of residents and prospective residents under a residence contract and any code of conduct to be observed by residents; and

to gather and maintain current information about retirement villages and retirement village schemes in South Australia, including but not limited to information about the operations of retirement villages such as information relating to occupation and vacancy rates, ingoing contributions, recurrent charges, exit entitlements, dispute resolution, terminations of residence contracts, enforceable voluntary undertakings and prosecutions for offences against the

Act; and

to advise the Minister on the administration and operation of this Act;

and

to perform any other function assigned to the Registrar under this Act or by the Minister.

The

Registrar may, at any time, and must, at the request of the

Minister, report to the Minister on any issue concerning retirement villages.

The

Registrar may, by written notice, require a person to provide specified information, or information of a specified kind, that is in the person's possession and that the Registrar reasonably requires for the performance of the Registrar's functions under this

Act (including any function assigned to the Registrar by the

Minister under section 7(1)(e)).

A person required to provide information to the Registrar by a notice under this section must—

provide the information to the Registrar within the period, and in the manner and form, stated in the notice (which must be reasonable);

and

if required to do so by the notice, or by a subsequent written notice given by the Registrar, verify the information by statutory declaration.

Maximum penalty: $2 500.

Expiation fee: $210.

A person cannot be compelled to give information under this section if the information might tend to incriminate the person of an offence.

Information classified by the Registrar as confidential is not liable to disclosure under the Freedom of Information Act 1991.

The

Registrar may delegate a power or function vested in or conferred on the Registrar by or under this Act—

to a particular person or body; or

to the person for the time being holding or acting in a particular office or position.

A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated.

A delegation—

may be absolute or conditional; and

does not derogate from the power of the delegator to act in a matter; and

is revocable at will by the delegator.

The

Registrar must, on or before 31 October in every year, forward to the Minister a report on their work and operations for the preceding financial year.

The

Minister must, within 12 sitting days after receiving a report under this section, have copies of the report laid before both

Houses of Parliament.

The

Registrar must maintain a register containing the following information:

in respect of each retirement village—

the name and business address of the operator of the village; and

the name and address of each site comprising the village; and

the references for the certificates of title of the land used for the village; and

the name, address and contact details of the village land owner; and

the name, address and contact details of the village manager; and

the name, address and contact details of any senior manager;

any other information that the Registrar considers appropriate.

Without limiting the information that the Registrar may include on the register under subsection (1)(b), the Registrar may include information relating to any of the following matters on the register:

enforceable voluntary undertakings accepted by the Minister and notified to the

Registrar under section 64A;

findings of guilt for offences against this Act.

The register is to be available for public inspection, without fee—

during ordinary office hours at a public office, or public offices, determined by the Minister; and

on a website determined by the Minister.

The

Minister must ensure that copies of material on the register can be purchased for a reasonable fee at the public office, or public offices, at which the register is kept available for inspection.

The operator of a retirement village established after the commencement of this section must, within 28 days after the first person enters into occupation of their residence in accordance with the scheme, give the Registrar—

the name and business address of the operator; and

the name and address of each site comprising the village; and

the references for the certificates of title of the land used for the village; and

the name, address and contact details of the village land owner; and

the name, address and contact details of the village manager; and

the name, address and contact details of any senior manager; and

any other information that the Registrar considers appropriate.

Maximum penalty: $2 500.

Expiation fee: $210.

The operator of a retirement village must, within 28 days of any change in the information given under subsection (1) (including a change by virtue of the sale of an interest in the land within the village, or the name of the operator or business address), give the Registrar notice of details of the change.

Maximum penalty: $2 500.

Expiation fee: $210.

Any information required under this section must be given in a manner and form determined by the Registrar.