Retirement Villages Act 1999 No 81
Current version for 3 January 2014 to date (accessed 22 November 2014 at 11:01)
Part 5Division 1

Division 1 General

24   Resident to enter village contract

(1)  The operator of a retirement village must not permit a prospective resident of the village to occupy residential premises in the village before the prospective resident enters into at least one of the following contracts with the operator in writing:
(a)  a residence contract,
(b)  a service contract.

Maximum penalty: 50 penalty units.

Note. A residence contract, a service contract and any other village contract may be contained in a single document.
(2)  However, a prospective resident may occupy residential premises in the village without entering into a contract referred to in subsection (1) if:
(a)  the prospective resident occupies the premises with a person who has entered into such a contract with the operator, or
(b)  the prospective resident and the operator enter into a residential tenancy agreement to which this Act does not apply in relation to the premises.
(3)  If the operator contravenes subsection (1), then (despite the provisions of Part 10):
(a)  the former occupant (if any) of the residential premises concerned has no liability to pay any recurrent charges or departure fees relating to the premises in respect of any period after the date on which the prospective resident occupies the premises, and
(b)  the operator must, no later than one month after that date, make any refund of the former occupant’s ingoing contribution, and make any other payment that is required, under a village contract, to be made to the former occupant.
(4)  If a refund, in whole or in part, is not made to a former occupant within the period required by subsection (3) (b):
(a)  the former occupant may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment, and
(b)  interest is payable, at the rate prescribed by the regulations, on and from the date that the refund becomes overdue.

24A   Retirement village land to be recorded on Register

(1)  The operator of a retirement village must, in accordance with this section, notify the Registrar-General in writing that the land comprising the retirement village (or land that is part of the retirement village) is used as a retirement village.

Maximum penalty: 100 penalty units.

(2)  Any such notice is to be provided:
(a)  in the case of land that, immediately before the commencement of this section, was used as a retirement village—within 3 months after the commencement of this section, or
(b)  in any other case—before entering into a residence contract with respect to residential premises on that land.
(3)  Nothing in this section requires the operator of a retirement village to notify the Registrar-General before entering into a residence contract regarding residential premises on land that is already the subject of a recording under this section.
(4) Form of notice for recording
The notice referred to in subsection (1) must be:
(a)  in the form approved by the Registrar-General, and
(b)  in the case of a notice relating to land under the Real Property Act 1900—accompanied by the fee prescribed under that Act, and
(c)  in the case of a notice relating to land not under the Real Property Act 1900—accompanied by the fee prescribed under the Conveyancing Act 1919.
(5) Registrar-General to record retirement village on Register
On receipt of a notice under subsection (1), the Registrar-General is to make a recording on the relevant Register indicating that the land to which the notice relates comprises, or is part of, a retirement village.
(6) Operator to notify of recording being made
As soon as practicable after the Registrar-General makes a recording under this section, the operator of the retirement village is to notify, in writing:
(a)  the holder of any other registered interest in the land to which the recording relates, and
(b)  the Residents Committee (if any) of the retirement village,
that the recording has been made.
(7) Operator to notify Registrar-General of certain changes
The operator of a retirement village must notify the Registrar-General if any of the information contained in a notice lodged under subsection (1) ceases to be accurate by submitting a new notice under that subsection.
(8) Use of recording on Register
Information that is recorded under this section may be used to establish a publicly available list of retirement villages.
(9) Application to remove recording
A person may apply in writing to the Registrar-General for the removal of a recording made under this section.
(10) Form of application for removal of recording
The application referred to in subsection (9) must be:
(a)  in the form approved by the Registrar-General, and
(b)  in the case of an application relating to land under the Real Property Act 1900—accompanied by the fee prescribed under that Act, and
(c)  in the case of an application relating to land not under the Real Property Act 1900—accompanied by the fee prescribed under the Conveyancing Act 1919.
(11) Registrar-General may remove recording
If the Registrar-General receives an application referred to in subsection (9), the Registrar-General may, if satisfied that:
(a)  there are no residential premises located on the land to which the recording relates that are the subject of a village contract, and
(b)  there are no amounts outstanding that are payable under a village contract relating to residential premises located on the land to which the recording relates,
remove the recording to which the application relates.

25   Inconsistency between village contract and disclosure statement

(1)  To the extent that any term in a village contract is inconsistent, to the detriment of the resident, with the information contained in the disclosure statement provided to the resident concerned, the contract is to be construed (as far as is practicable) as if it contained the information in the statement instead of the inconsistent term, unless the inconsistent term is a term of a standard contract prescribed under section 43.
(2)  If there is a dispute between a resident of a retirement village and the operator of the village as to whether there is an inconsistency referred to in subsection (1), the resident concerned may apply to the Tribunal for (and the Tribunal may make) an order determining the dispute.
(3)  Any such order is to specify the way in which the contract concerned is to be construed.

26   Village contracts to be in writing

Despite the provisions of any other Act or law, a village contract entered into after the commencement of this section is not enforceable by the operator of a retirement village against a resident of the village unless the contract is in writing.

27   Operator to allow time for examination of village contracts

The operator of a retirement village must not enter into a village contract with a person earlier than 14 days after the person (or another person acting on behalf of that person) has been provided with a copy of each village contract that the person is to enter into.

Maximum penalty: 100 penalty units.

28   No restriction on right to seek independent advice

(1)  An operator of a retirement village must not restrict any person’s right to seek independent advice before entering into a village contract with the operator.

Maximum penalty: 10 penalty units.

(2)  An operator of a retirement village must not require a resident or a prospective resident to use the services of a legal practitioner, licensed conveyancer or other adviser nominated by the operator.

Maximum penalty: 10 penalty units.

(3)  If a resident or a prospective resident is required to use the services of a legal practitioner, licensed conveyancer or other adviser in contravention of this section, the operator of the village concerned is liable to pay to the resident or prospective resident the amount of any fees paid by the resident or prospective resident to that legal practitioner, licensed conveyancer or other adviser for those services.
(4)  If the operator of a retirement village does not, on request, pay the amount due to a resident or prospective resident under subsection (3), the resident or prospective resident concerned (or the executor or administrator of his or her estate) may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment.

29   Variation or replacement of village contracts

(1)  A purported variation of a village contract, and a purported termination of a village contract and entry into a new village contract by the same parties in relation to the same residential premises, is of no effect (and the contract continues as in force before the purported variation or termination) unless the resident who is a party to the contract obtains a written certificate in accordance with this section.
(1A)  An operator must not purport:
(a)  to vary a village contract, or
(b)  to terminate a village contract and enter into a new village contract in relation to the same residential premises,
unless the resident who is a party to the contract has obtained a certificate in accordance with this section.

Maximum penalty: 100 penalty units.

(2)  The certificate:
(a)  must be signed by a legal practitioner of the resident’s choosing, and
(b)  must contain a statement to the effect that:
(i)  the legal practitioner explained to the resident the effect of the proposed variation of the contract (or the proposed new contract, as the case may be), and
(ii)  the resident appeared to understand the explanation and to consent to the variation (or to the new contract).
(3)  Sections 27 and 28 apply in respect of a variation of contract as if the variation were a new contract.
(4)  This section does not apply if the resident requested the variation or new contract.
(5)  A resident is not obliged to agree to a variation or replacement of his or her village contract because of the enactment of this Act (or for any other reason).

30   Costs of obtaining certificate

(1)  The reasonable costs of obtaining a certificate required by section 29 are payable by the operator of the retirement village as if the operator, and not the resident, were the client of the legal practitioner concerned.
(2)  The resident must provide the operator with a copy of any account presented to the resident in respect of those costs and the operator is not required to make any payment in respect of the costs until the resident has done so.
(3)  If the operator does not pay all the costs within 28 days after being provided with a copy of the relevant account, the resident (or the executor or administrator of his or her estate) may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment.
(4)  On application to it under this section, the Tribunal:
(a)  may make the order sought, or
(b)  may order the operator and the resident to pay the costs in such proportion as the Tribunal considers just in the circumstances.

31   Costs of preparation of village contracts

(1)  Legal and other expenses incurred by the operator of a retirement village in connection with the preparation of a village contract are payable by the operator and the resident concerned in equal shares (except as provided by section 30).
(2)  The operator must provide the resident with a copy of any account presented to the operator in respect of those expenses and the resident is not required to make any such payment until the operator has done so.
(3)  The regulations may prescribe a maximum amount payable by a resident for legal and other expenses incurred by the operator in connection with the preparation of a village contract.
(4)  If the regulations prescribe such a maximum amount, any difference between the resident’s share of the amount incurred by the operator and the maximum amount prescribed is payable by the operator.
(5)  If a residence contract is in the form of a lease:
(a)  duty (if any) payable on the lease, and
(b)  the registration fee (if the lease is to be registered under the Real Property Act 1900),
is payable by the resident.
(6)  This section does not apply in respect of a contract for the sale of residential premises that are subject to a community land scheme, company title scheme or strata scheme.

32   Cooling-off period

(1)  A resident or prospective resident may, within the period (the cooling-off period) of 7 business days after entering into a village contract, serve a written notice on:
(a)  the other party to the contract, and
(b)  the operator of the retirement village concerned (if the operator is not the other party),
to the effect that the resident or prospective resident rescinds the contract.
(2)  For this purpose, a contract is taken to have been entered into at midnight on the day on which a copy of the contract signed by the resident is given to the other party to the contract. The cooling-off period ends at midnight 7 business days after that day.
(3)  A contract must not be completed until after the cooling-off period has expired.
(4)  The cooling-off period under a residence contract is waived if the resident commences to live in the residential premises to which the contract relates.
(5)  This provision has effect despite the provisions of any other Act or law.

33   Rescission of village contract on grounds relating to disclosure statement

(1)  If a disclosure statement is not provided in accordance with this Act, or if the information in it is false or misleading in a material particular, the person to whom (or on whose behalf) it was provided may, within 3 months after occupying residential premises in the village, apply to the Tribunal for an order allowing the person to rescind any village contract to which the person and the operator of the village are parties.
(2)  The Tribunal is not to make an order referred to in subsection (1) if it is of the opinion that:
(a)  the disclosure statement was provided in accordance with this Act, or
(b)  the information in the disclosure statement is not false or misleading in a material particular, or
(c)  the operator acted reasonably and honestly and ought to be excused for the failure to provide accurate information, or to provide the disclosure statement in accordance with this Act, or
(d)  the person to whom (or on whose behalf) the disclosure statement was provided is in substantially as good a position as he or she would have been had the failure not occurred.
(3)  If the Tribunal makes the order sought:
(a)  it may also make an order as to compensation payable to the person by the operator of the village, and
(b)  the person may, by notice in writing to the operator, rescind the contract.

34   Effect of rescission notice

(1)  A rescission notice takes effect on service of the notice.
(2)  A village contract that is rescinded under this Part is taken to be void.
(3)  However, subsection (2) does not affect the rights and obligations set out in sections 35–37.

35   Consequences of resident’s rescission of service contract

(1)  If a resident of a retirement village serves a rescission notice in relation to the resident’s service contract but does not serve a rescission notice in relation to the residence contract, the resident and the operator of the village are to attempt to renegotiate the service contract.
(2)  If the operator of the village and the resident cannot agree on the terms of the new contract, the operator or the resident may apply to the Tribunal for an order setting out the terms of the new contract.
(3)  On application to it under this section, the Tribunal may:
(a)  make the order sought, and
(b)  if the Tribunal considers it advisable, order the operator and the resident to enter into a new contract in the terms set out in the order.
(4)  Section 27 does not apply to a new service contract arising out of an order of the Tribunal under this section.

36   Consequences of resident’s rescission of residence contract

(1)  A rescission notice in relation to a residence contract is taken also to apply to the service contract and any other village contract entered into by the resident concerned, and each of those contracts is taken to be void.
(2)  As soon as is reasonably practicable (and no later than one month) after a rescission notice that applies to a residence contract takes effect:
(a)  the rescinding party is to be repaid all money paid by or on behalf of the party under the residence contract, and
(b)  if the residence contract related to residential premises that are subject to a community land scheme, company title scheme or strata scheme and was rescinded under section 33, the rescinding party must:
(i)  execute such instruments as may be necessary to enable re-registration of the shares (in the case of premises that are subject to a company title scheme) or title (in any other case) in the name of the operator under the rescinded contract, and
(ii)  deliver up to the operator the relevant share documents or certificate of title.
(3)  The Tribunal may do either or both of the following:
(a)  on the application of the rescinding party—order the other party to the contract to comply with subsection (2) (a),
(b)  on the application of the operator—order the rescinding party to comply with subsection (2) (b).
(4)  Any fees or costs associated with a rescission during the cooling-off period are to be paid by the party incurring them.
(5)  Any fees or costs associated with a rescission at any other time (including registration fees) are payable by the operator, and the Tribunal may, on the application of the rescinding party, order the operator to make the relevant payment.
(6)  The rescinding party is not liable to make any payment to the operator in relation to the rescinded contract unless ordered to do so by the Tribunal.
(7)  Any order under subsection (5) is subject, in the case of a rescinding party to whom subsection (2) (b) applies, to his or her compliance with that paragraph.
(8)  Either party to a rescinded residence contract is entitled to make a claim to the Tribunal for:
(a)  such compensation, adjustment or accounting as is just and equitable between the parties if the rescinding party has received the benefit of possession of the residential premises concerned, or
(b)  the payment of damages, costs, or expenses arising out of a breach of any term, condition or warranty contained or implied in the contract (other than a term, condition or warranty referred to in section 52A of the Conveyancing Act 1919),
but not so as to affect rights and obligations under this section.
Note. Section 52A of the Conveyancing Act 1919 provides (among other things) that a vendor under a contract for the sale of land is taken to have included in the contract such terms, conditions and warranties as may be prescribed. The remedies and relief available to a purchaser under such a contract (and the penalties that may be incurred by a vendor) for a breach of a prescribed term, condition or warranty are specified in the regulations made under that Act.
(9)  This section has effect despite the provisions of Division 8 of Part 4 of the Conveyancing Act 1919.
Note. Division 8 of Part 4 of the Conveyancing Act 1919 provides (among other things) for a cooling off period in relation to a contract for the sale of residential property (within the meaning of that Division) and allows such a contract to be rescinded during that period. However, the rights and obligations of the parties under that Division differ from those under this section. Division 8 of Part 4 does not allow rescission after completion of the contract, and the purchaser under the rescinded contract forfeits 0.25% of the purchase price to the vendor.

See section 50 of the Duties Act 1997 for refund of duty paid on a rescinded agreement for the sale or transfer of dutiable property.

37   Consequence of resident’s rescission of other village contract

(1)  As soon as is reasonably practicable (and no later than one month) after a rescission notice that applies to a village contract other than a residence contract or a service contract takes effect, the rescinding party is to be repaid all money paid by or on behalf of the party under the rescinded contract.
(2)  The Tribunal may, on the application of the rescinding party, order the other party to the rescinded contract to comply with subsection (1).
(3)  Either party to a rescinded contract referred to in this section is entitled to make a claim to the Tribunal for such compensation, adjustment or accounting as is just and equitable between the parties having regard to any benefits that the rescinding party received under the contract before its rescission, but not so as to affect rights and obligations under this section.

38   Condition report for certain residential premises

(1)  The operator of a retirement village must not permit a prospective resident of the village to occupy residential premises in the village unless the operator prepares, and gives to the prospective resident, a report relating to the condition of the premises at the commencement of the prospective resident’s occupation of the premises (a condition report).
(2)  A condition report must take the form prescribed by, and must be completed in accordance with, the regulations.
(2A)  Without limiting subsection (2), the regulations may make provision for, or with respect to, the following:
(a)  the time within which the condition report must be completed,
(b)  the time within which the condition report must be provided to a prospective resident.
(3)  The operator of the retirement village must annex a copy of the condition report to the first village contract that the prospective resident enters into with the operator.
(4)  If, after the commencement of this section, the operator permits a prospective resident to occupy residential premises in contravention of this section, the operator is prohibited from recovering any payment or other compensation for any alleged damage occurring to the premises during their occupancy by the prospective resident concerned.
(5)  This section does not apply if:
(a)  the prospective resident is to occupy the residential premises together with a resident who is already in occupation of the premises, or
(b)  the prospective resident is, or will be, a registered interest holder in respect of the residential premises that the prospective resident intends to occupy.

39   Operator to give residents and prospective residents copies of village contracts

(1)  As soon as is reasonably practicable (and no later than 14 days) after entering into a village contract, the operator of the retirement village concerned must ensure that the other party to the contract has a copy of the contract that is signed by the operator.

Maximum penalty: 50 penalty units.

(2)  If a resident or a prospective resident of a retirement village signs a village contract and gives it to the operator before the contract is entered into, the operator must give the resident or prospective resident a copy of the contract signed by the resident or prospective resident as soon as is reasonably practicable (and no later than 14 days) after receiving it.

Maximum penalty: 50 penalty units.

(3)  If a residence contract is in the form of a lease that is to be registered under the Real Property Act 1900, the operator must:
(a)  lodge the lease for registration within one month after the lease is given to the operator in registrable form, and
(b)  provide the resident with a copy of the fully-executed lease within 14 days after the lease is returned to the operator following its registration.

Maximum penalty: 50 penalty units.

40   Contractual rights of residents against new operator

(1)  A village contract between a resident and a former operator of a retirement village may be enforced against any operator for the time being of the village.
(2)  However, proceedings do not lie against the owner of land in a retirement village (not being a person involved in the management or control of the village) for the enforcement of rights under subsection (1) unless:
(a)  the owner is a party to the contract, or
(b)  the owner is a close associate of an operator involved in the management or control of the village, and
an operator other than the owner has failed to satisfy a judgment given for the enforcement of those rights.

41   New operator to convene meeting of residents

(1)  A person who proposes to become an operator of an existing retirement village (and who proposes to manage or control the village) must, at least 28 days before the person becomes the operator, report on:
(a)  his or her financial ability to operate the village, and
(b)  his or her plans for the future management and operation of the village (including any changes that he or she proposes to make),
at a meeting of the residents and former occupants of the village convened for that purpose in accordance with this section.

Maximum penalty: 50 penalty units.

(2)  The person must convene the meeting by sending to each resident and former occupant, at least 7 days before the date of the meeting, a written notice setting out:
(a)  the time and place of the meeting (which is to be held in the village if practicable, or at a venue near the village), and
(b)  the reason for the meeting.

41A   Renovations and alteration of fixtures or fittings

(1)  A resident of a retirement village may:
(a)  add, remove or alter any fixtures or fittings on or within the resident’s residential premises, or
(b)  make renovations to the resident’s residential premises,
but only with the written consent of the operator of the retirement village.
(2)  The consent of the operator may be subject to such reasonable conditions as the operator may include in, or attach to, the written consent.
(3)  Without limiting subsection (2), the operator may consent to any addition, removal or alteration of fixtures or fittings, or to any renovations, referred to in subsection (1) subject to the condition that, on the termination of the resident’s village contract, the premises will be returned to the same condition as they were in immediately before the consent was given.
(4)  The operator of a retirement village must not unreasonably withhold consent to any addition, removal or alteration of any fixtures or fittings, or to any renovations, referred to in subsection (1).
(5)  A resident of a retirement village may apply to the Tribunal for (and the Tribunal may make) an order:
(a)  permitting the addition, removal or alteration of specified fixtures or fittings on or within the resident’s residential premises, or
(b)  permitting the making of specified renovations to the resident’s residential premises, or
(c)  varying the conditions to which the operator’s consent is subject.
(6)  If the Tribunal is satisfied that the operator of the retirement village has unreasonably withheld consent under this section, or that the conditions to which such consent is subject are unreasonable in the circumstances, the Tribunal may make the order sought and the operator is taken to have given consent in accordance with the terms of the order.
(7)  Despite subsection (1), the consent of the operator of the retirement village is not required:
(a)  to remove or alter any fixtures or fittings that were added by a resident (including fixtures or fittings that were added before the commencement of this section) unless the removal or alteration of the fixtures or fittings is likely to cause significant damage to the residential premises, or
(b)  to make renovations, or to add, remove or alter any fixtures or fittings, prescribed by the regulations for the purposes of this section.
(8)  Nothing in this section authorises a person to add, remove or alter any fixtures or fittings in, or renovate any residential premises within, a retirement village if consent to do so is required under any Act and the consent has not been obtained.
(9)  Without limiting subsection (8), nothing in this section authorises a person to carry out development (within the meaning of the Environmental Planning and Assessment Act 1979) in contravention of that Act.

42   Regulations concerning village contracts

(1)  The regulations may make provision for or with respect to matter that is to be included in (and matter that is to be excluded from) village contracts or a class of village contracts.
(2)  If the regulations require a village contract to contain a clause in prescribed terms, a village contract of the kind to which the prescription relates is taken to include the clause in the terms prescribed.
(3)  If the regulations provide that any matter is to be excluded from village contracts or a class of village contracts, any village contract that contains that matter is void to the extent of that matter.

43   Standard form of village contract

(1)  The regulations may prescribe a standard form of village contract.
(2)  The regulations may provide for:
(a)  more than one standard form of village contract, or
(b)  the addition of clauses to, or the omission or variation of clauses contained in, the standard form or forms,
for use in relation to different classes of village contracts (including different classes of residence contracts) or different classes of residential premises.
(3)  A village contract for which a standard form is prescribed, and that is entered into after the day on which the form is prescribed, is void to the extent to which it is not in or to the effect of the standard form.
(4)  Any such contract that does not include a term of the form of contract that is the standard form at the time the contract is entered into is taken to include that term.
(5)  The terms contained in a prescribed standard form of village contract are not to be varied by the parties to a village contract for which the form is prescribed, and, to the extent that they are so varied, are taken not to have been varied.
(6)  However:
(a)  nothing in subsection (3) or (5) voids any residence right conferred by the village contract concerned, and
(b)  despite those subsections, the parties to a village contract for which a standard form is prescribed may insert additional terms in the contract, but only if the terms:
(i)  do not contravene this or any other Act or law, and
(ii)  are not inconsistent with a term of the prescribed village contract.
(7)  An additional term is void if the Tribunal so orders, on application by a resident, on being satisfied that the additional term does not comply with subsection (6) (b) (i) and (ii).
(8)  A village contract that provides for the payment of an ingoing contribution may also provide:
(a)  that any such contribution is to be paid by way of instalments at such intervals as may be specified in the contract, and
(b)  if any such contribution is to be paid by instalments, for interest on the unpaid portion of any such contribution to be payable, as calculated at the rate prescribed by the regulations.

44   Parties to minimise loss from breach of village contract

The rules of law relating to mitigation of loss or damage on breach of a contract apply to a breach of a village contract.
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