Division 5Division 5 Sale or letting of premises by certain residents
This Division applies only to a resident of a retirement village who is a registered interest holder in respect of his or her residential premises in the village.
(1) An operator of a retirement village who holds an option to purchase any residential premises from a resident of the village must decide whether or not to exercise the option, and must give the resident written notification of that decision, no later than 28 days after the resident permanently vacates the premises (or, if the resident has not lived in the premises, 28 days after the resident notifies the operator in writing that the premises are for sale).(2) If the operator does not give the notification required by subsection (1) within the time allowed by that subsection, the option lapses.(3) This section has effect despite any term of the option.
(1) A resident of a retirement village may:(a) set the sale price of his or her residential premises in the village, and(b) appoint a selling agent of the resident’s choice (who may be the operator of the village if the operator is eligible to be appointed).Note. In accordance with the Property, Stock and Business Agents Act 2002, the selling agent must be licensed as a real estate agent under that Act. Matters such as the form of the agency agreement (which must be in writing), the termination of the selling agent’s appointment and the payment of commission are dealt with under that Act.(2) If the operator is appointed under subsection (1), the resident may also (but is not obliged to) allow the operator to set the sale price of the premises.(3) Any appointment of the operator of a retirement village, or a person chosen by the operator, as:(a) a selling agent of residential premises in the village, or(b) the person who sets the sale price of the premises,being an appointment made as part of the consideration for the resident’s entering the village, or otherwise at the operator’s request, terminates on the commencement of this section.(4) Any such appointment made on or after the commencement of this section is void.(5) An operator, or a person chosen by the operator, who is appointed as a selling agent under subsection (1):(a) must notify the resident of all offers to purchase the premises, and(b) must, if the resident so requests, provide the former occupant at the end of each named month with a report:(i) detailing the marketing program (including details of all advertising of the premises or the village), and(ii) listing all inquiries received about the sale, and(iii) providing the names and telephone numbers (or other contact details) of the persons who made the inquiries (in so far as these are known to the operator), and(iv) providing details (including the asking price) of all other residential premises for sale in the village,during that month.(6) If a person other than the operator is appointed as selling agent, the resident must notify the operator in writing of:(a) the name and contact details of the person appointed, and(b) the asking price for the premises, and(c) any changes to:(i) the appointment or contact details of the agent, and(ii) the asking price for the premises.
169 Operator not to interfere in sale
(1) An operator of a retirement village who is not appointed a selling agent for residential premises in the village must not interfere with the sale of the premises.Maximum penalty: 50 penalty units.
(2) Without limiting subsection (1), an operator interferes with the sale of the premises if the operator interferes with any “For Sale” sign relating to the premises.(3) Subsection (2) does not apply if the sign has been erected contrary to the village rules (or the by-laws, if the village is subject to a community land scheme or strata scheme) or in such a way as to interfere with the peace, comfort and quiet enjoyment of another resident of the village.
(1) A resident of a retirement village who sells residential premises in the village and the operator of the village are to share the costs of the sale in the same proportion (if any) as they are to share any capital gains on the sale in accordance with a village contract.(2) However, if the resident appointed a person other than the operator or a person chosen by the operator as a selling agent, the resident is liable to pay the selling agent’s commission.(3) The resident is not liable to pay commission to the operator or a person chosen by the operator if the premises are sold otherwise than as a result of the operator’s (or person’s) acting as the selling agent.(4) In this section, costs of sale includes (without limiting the ordinary meaning of that term) such costs relating to the sale of residential premises in a retirement village as may be prescribed by the regulations, but does not include such other costs relating to the sale of residential premises as may be prescribed by the regulations.
171 Purchaser and operator to enter contract
(1) If a vendor for the sale of residential premises in a retirement village is not the operator of the village, the vendor must give the operator of the village sufficient notice of the proposed sale to enable the operator to provide the purchaser with a disclosure statement (and the information required under section 19) at least 14 days before the contract is entered into.(2) Such a contract is taken to include a provision to the effect that the contract is conditional on the purchaser’s entering into a service contract with the operator of the village on or before completion of the purchase.(3) As soon as practicable after the contract for the sale of the premises is entered into, the vendor must notify the operator in writing of that fact.(4) If the operator decides not to enter into a service contract with the purchaser, the operator must, not later than 14 days after being notified under subsection (3):(a) advise the vendor of that decision and of the reasons for it, and(b) apply to the Tribunal for an order declaring that the operator is not obliged to enter into the service contract.
172 Vendor’s application to Tribunal concerning proposed purchaser
(1) If the operator of the retirement village does not, within 14 days after being given notification under section 171 (3), either:(a) enter into a service contract with the purchaser, or(b) apply to the Tribunal under section 171 (4),the vendor may apply to the Tribunal for an order directing the operator to enter into a service contract with the purchaser.(2) If the operator offers the purchaser a service contract containing terms and conditions substantially different, to the detriment of the purchaser, from the terms and conditions of the sample contracts available for inspection under section 20, the vendor may apply to the Tribunal for an order directing the operator to enter into a service contract with the purchaser that is substantially in accordance with the sample contract.
173 Tribunal’s determination in relation to proposed purchaser
(1) On application under section 171 (4) or 172 (1), the Tribunal is to determine whether the operator’s decision not to enter into a service contract concerned is reasonable in the circumstances, having regard to:(a) whether the residential premises concerned are suitable for occupation by the purchaser (or another person the purchaser intends to allow to live in the premises), having regard to his or her physical and mental capacity, and(b) any other factor that the Tribunal considers relevant.(2) For the purposes of subsection (1) (b), the age of the purchaser (or another person the purchaser intends to allow to live in the premises) is not relevant if the purchaser (or the other person) is a retired person.(3) On making its determination under subsection (1), the Tribunal may make an order of the kind referred to in section 171 (4) or 172 (1), as appropriate, regardless of whether that is the order sought.(4) An order referred to in section 172 (1) or (2) may also, if the Tribunal considers it appropriate, set the terms of the service contract to be entered into, having regard to the service contracts in force in the village and the sample contract available for inspection under section 20.(5) If the Tribunal makes the order referred to in section 172 (2), the Tribunal may also order the operator to pay such compensation to the vendor or the purchaser (or both) for delay and inconvenience as it considers just in the circumstances.
174 Letting or subletting of premises
(1) A resident of residential premises in a retirement village may let (or, in the case of a resident referred to in section 7 (1) (c), sublet) the premises under a residential tenancy agreement in accordance with this Division.Note. As a consequence of section 8 (d), a resident or former occupant may retain possession of residential premises (ie they are not required to hand over the keys to the operator) in order to enable the premises to be let or sublet.(2) Any residential tenancy agreement under this Division:(a) must be in the form prescribed under the Residential Tenancies Act 1987, and(b) must not be for a term that, together with any option to renew, exceeds 3 years.Note. A residential tenancy agreement under this Division is subject to the Residential Tenancies Act 1987. The tenant is not a resident of the retirement village.(3) The tenant or subtenant under the residential tenancy agreement must be a retired person.(4) A resident of residential premises in a retirement village must not let or sublet the premises unless he or she has given the operator of the village written particulars of:(a) the name and age of the proposed tenant or subtenant, and(b) the term of the proposed residential tenancy agreement, and(c) such other matters in relation to the proposed agreement as the operator may reasonably require,and the operator has consented in writing to the agreement.(5) The operator may refuse to consent to a second or subsequent residential tenancy agreement if the proposed term of the agreement, when added to the term of any preceding agreement relating to the premises and to which the same resident was a party, would exceed 3 years.(6) If the operator decides not to consent to the residential tenancy agreement (otherwise than as allowed by subsection (5)), the operator must, no later than 7 days after receiving the written particulars required by subsection (4):(a) advise the resident of that decision (and of the reasons for it), and(b) apply to the Tribunal for an order declaring that the operator is not obliged to consent to the agreement.(7) If the operator does not apply for such an order within the time allowed by this section, the operator is taken to have consented to the residential tenancy agreement.
175 Determination by Tribunal concerning proposed tenant or subtenant
(1) On application under section 174, the Tribunal is to determine whether the operator’s decision not to consent to the residential tenancy agreement concerned is reasonable in the circumstances, having regard to:(a) whether the residential premises concerned are suitable for occupation by the proposed tenant or subtenant, having regard to his or her physical and mental capacity, and(b) any other factor that the Tribunal considers relevant.(2) For the purposes of subsection (1) (b), the age of the proposed tenant or subtenant is not relevant if the proposed tenant or subtenant is a retired person.(3) On making its determination under subsection (1), the Tribunal may make an order:(a) directing the operator to consent to the residential tenancy agreement concerned and pay such compensation (if any) as is specified in the order, or(b) declaring that the operator is not obliged to consent to the agreement.(4) The operator is taken to have consented to the residential tenancy agreement concerned on the making of an order under subsection (3) (a).
176 Effect of granting of residential tenancy agreement under this Division
(1) Services under the service contract between the operator of a retirement village and the resident of residential premises in the village are to be provided to a tenant or subtenant of the resident as if the tenant or subtenant were the resident, and the contract may be enforced accordingly.(2) The letting or subletting of residential premises in accordance with this Division does not affect any right or obligation of the resident and the operator under a village contract.
177 Operator not to interfere in letting
(1) The operator of a retirement village must not interfere with a resident’s attempt to let his or her residential premises in the village (except as provided by section 174 (5)).Maximum penalty: 50 penalty units.
(2) Without limiting subsection (1), an operator interferes with the resident’s attempt to let the premises if the operator interferes with any “For Lease” sign relating to the premises.(3) Subsection (2) does not apply if the sign has been erected contrary to the village rules (or the by-laws, if the village is subject to a community land scheme or strata scheme) or in such a way as to interfere with the peace, comfort and quiet enjoyment of another resident of the village.
178 No assignment or subletting
(1) A tenant or subtenant under a residential tenancy agreement under this Division must not:(a) assign his or her interest under the agreement, or(b) sublet the premises the subject of the agreement.(2) This section has effect despite any term of the agreement concerned and despite the Residential Tenancies Act 1987.
(1) For the purposes of this Division and despite the termination of the resident’s residence contract, a resident referred to in section 7 (1) (c) is taken to possess a legal estate in his or her residential premises in the village such as to enable the resident to lease the premises to another person under a residential tenancy agreement.(2) The resident ceases to possess that estate on completion of the sale of the premises.