The Operator of a retirement village must ensure that it is registered and the Act requires certain documents to be supplied
Existing retirement villages must lodge applications to register within six months from Feb 2004 .
The operator must issue a disclosure statement to every resident within 12 months of Feb 2004 - the disclosure statement is all information required by section 2 plus any applicable code of practice and any regulations.
The Occupation right agreement must contain in clear and unambiguous form provisions and
information as required in schedule 3 and any regulations under the Act.
This agreement
may contain a provision requiring decisions of a majority of residents to bind all
residents.
An intending resident must receive independent legal advice before signing the agreement and the signature must be witnessed by a lawyer who must certify that the lawyer explained to the intending resident the general effect of the agreement and its implications.
A 15 day cooling off period is now mandatory.
Deposits and other payments must be independently held in an interest bearing account until settlement , by the statutory supervisor or if no Statutory supervisor then a lawyer nominated by operator and intending resident.
Before any occupation rights agreement is entered into the intending resident must receive.
A code of residents rights has a minimum requirement for rights conferred under the Act but operators may well include other rights.
A resident can bring any alleged breach of rights to the attention of any of the following
Each resident has the right to be informed by the operator of any matter, which may have a material impact on
There are a number of matters that the operator must advise the statutory supervisor or the resident under section 34 of the Act - these are mainly operational matters.
Retirement Commissioner is to monitor the effects of the Act and the regulations and the code of practice made under the Act and to advise on issues relating to retirement villages.
Operators are required to supply reasonable information as requested by the Retirement Commissioner.
Statutory Supervisors will be appointed only if approved by the Registrar. The operator must appoint a statutory supervisor for the village under a deed of supervision which must contain all information and other matters required to be included by the regulations.
The Statutory Supervisor provide a stakeholder facility for intending residents and residents who pay deposits or progress payments in respect of occupation rights agreements, and also monitor financial position of the village
Report to the Registrar annually on the use of the powers available.
If the statutory supervisor considers the financial position , the security of interests of residents or the management of village is inadequate , the statutory supervisor can direct the operator to supply relevant information to residents . direct the operator to operate the village in a specified manner.
There are two types of dispute procedures - a complaints facility and dispute resolution.
The operator must operate and make known to the residents a facility for dealing with complaints.
A resident or operator may require that a dispute be resolved by a dispute panel by giving the other party a dispute notice.
A resident can't require resolution of a dispute by dispute panel unless the dispute has earlier gone to complaints facility and 20 days have elapsed since referral to the complaints facility .
The operator can't require resolution of dispute by a dispute panel unless
A resident may give a dispute notice for resolutions concerning any of the operator's decisions affecting the resident's occupation rights or right to access services and facilities or relating to changes to charges for outgoings or access to facilities or payable under occupation rights agreement..
Also a resident may give a dispute notice of a dispute affecting the residents occupation right between another resident or someone in another unit with that other resident's permission.
Dispute notices must be written, identify the decision or decisions or matters in respect of which it is made , identify the person/persons involved , state grounds on which it is made and state efforts that have been made to resolve the dispute.
The dispute notice must be written within 6 months of referral to the complaints facility.
A resident cannot give a dispute notice re disposal of a unit occupied by resident before 9 months after the residential unit has become available to the operator for disposal.
The Retirement Commissioner approves persons eligible for appointment to disputes panel - this list must be maintained and published by the Retirement Commissioner.
The operator must appoint dispute panel within 20 working days after receipt of disputes notice. The operator must appoint one or more independent persons to form a dispute panel and must consult with the other parties before the appointment.
In the case of dispute over sale of unit there must be 3 members, one of which must be a judge or a practicing solicitor or barrister for at least 7 years - the judge or lawyer must be the chair.
There are some limits to the members of the dispute panel like person employed or engaged in any capacity by the operator either previously or currently or be or have been an officer where the operator is a religious or charitable organisation.
The operator must appoint members of a dispute panel on a contract for services and the contract must not have clauses that could have the effect of influencing the panel favourably for the operator..
The dispute panel has the power to amend an occupation right agreement so that it conforms to code of practice , order any party to comply with its obligations under an occupation right agreement or code of practice or to give effect to a right in code of resident's rights in the case of a dispute over monetary amount, order the operator or resident to pay or refund all or part of the amount in dispute , and where the operator is not party to the dispute order a party to return property to value of $1000 or pay compensation to value of $1000 to the other party.
In the case of unit resale the dispute panel can order compensation, payment of interest or order the operator to buy the resident's estate or interest at a price and within a time fixed by the panel.
The costs of a dispute panel even if the operator is not party to the dispute are to be met by the operator but the dispute panel can award to the operator by way of refund all or part of the costs involved.
The Registrar of Retirement Villages must be appointed by the chief executive of the department that is responsible for the employment of that Registrar
A code of practice must be prepared and published,
The Minister may approve of draft codes of practice submitted to the Minister by any retirement village or group of villages as the code applicable to all Retirement Villages after considering the recommendations of the Retirement Commissioner who must consider any recommendations by any groups who represent
Required information
1
A disclosure statement must contain all prescribed details relating to the following:
(a) the ownership structure of the retirement village and the type of occupancy right
or occupancy rights offered within the retirement village:
(b) the type of interest a resident of the retirement village has in his or her
residential unit, including (without limitation)
(c) the management arrangements for the retirement village:
(d) the identity and role of the statutory supervisor (if there is one):
(e) any exemption from the requirement to appoint a statutory supervisor.
2 State of village, services, charges, and accounts A disclosure statement must contain all prescribed details relating to the following: (a) the state of the retirement village, including (without limitation) (i) its stage of completion; and (ii) the numbers of occupied and unoccupied residential units; and (iii) the number of new units planned and the location, size, and effect on residents of those new units; and (iv) the actual and average time taken to date to dispose of vacant residential units (if any) to new residents: (b) the services and facilities offered at the retirement village and new services or facilities planned and the location, size, and effect on residents of those new services or facilities: (c) charges of all kinds, including (without limitation) (i) entry costs, transfer costs, periodical charges, and charges for maintenance, rates, and insurance; and (ii) the frequency of billing; and (iii) the respective roles of the operator and the residents in setting charges: (d) provision made for maintenance and refurbishment at the retirement village: (e) the preparation, auditing, and disclosure of financial accounts for the retirement village. 3 Occupation right agreements, terminations, deductions, and estimated financial returns A disclosure statement must contain all prescribed details relating to the following: (a) the cooling-off period and the right to cancel for delay provided by section 28 of the Retirement Villages Act 2003, and any additional cooling-off period or right to cancel for delay given by the occupation right agreement: (b) whether the operator or a resident can vary an occupation right agreement and if so in what circumstances: (c) the arrangements for termination of an occupation right agreement, including (without limitation) (i) the effect of termination on the position of other persons living in the residential unit vacated by the resident; and (ii) the nature of any continuing charges following termination; and (iii) the process to be followed in finding a new resident for a vacant residential unit; and (iv) the process for determining the sum or sums to be paid by the new resident for the right to occupy the vacant residential unit and the entitlements of any resident, former resident, or the estate of a former resident in relation to that sum or sums: (d) deductions from payments made by or due to residents, including (without limitation) (i) deductions made on entry or exit from the retirement village and deductions from periodical payments; and (ii) deductions made for the purposes of maintenance, refurbishment, and development; and (iii) deductions for rates, maintenance and other outgoings: (e) the estimated financial return that a resident, former resident, or the estate of a former resident, could expect to receive on the sale or other disposal of a vacant residential unit at intervals of 2 years, 5 years, and 10 years after the resident enters into an occupation right agreement; including (without limitation) (i) how that estimated return is affected by the duration of the resident's occupation; and (ii) whether that estimated return will be affected by a termination of the occupation right agreement arising out of a breach of the agreement by the resident or a decision of the resident to terminate the agreement voluntarily. 4 Other matters A disclosure statement must (a) disclose whether any holder of a security interest to whom section 12(1)(b) applies has refused to consent to the registration of the village and the effect of that refusal; and (b) contain all prescribed details of any exemption from the requirement to comply with a provision or provisions of the code of practice; and (c) contain any other matters required to be included in the statement by the code of practice or any regulations made under the Retirement Villages Act 2003 Schedule 3 Occupation right agreements Required information and provisions 1. The occupation right agreement must contain (a) provisions in relation to the following topics: (i) the staffing of the retirement village: (ii) the safety and personal security of residents: (iii) fire protection and emergency management (iv) the transfer of residents within the retirement village: (v) meetings of residents with the operator: (vi) accounts: (vii) maintenance and upgrading: (viii) the termination of the occupation right agreement by a resident or the operator: (ix) communication to those for whom English is a second language or whose ability to communicate is limited: (b) provisions requiring (i) the operator and the purchaser to consult with residents before the operator's interest in the village is sold or otherwise disposed of: (ii) the consultation referred to in subparagraph (i) to take place (A) at a time directed by the statutory supervisor of the retirement village (if there is one); or (B) in any other case, at an appropriate time that is a reasonable time before settlement of the transaction: (iii) the operator to consult with residents before appointing a new manager: (iv) the operator to consult with the residents about any proposed changes in the services and benefits provided or the charges that the residents pay that will or might have a material impact on the residents' occupancy or ability to pay for the services and benefits provided: (v) the operator, the people who work at the village, and the people who provide services at the village, to treat the residents with courtesy and to respect the rights of residents: (vi) the operator, the people who work at the village, and the people who provide services at the village, not to exploit the residents: (c) provision for a complaints facility and disputes procedure that complies with the Retirement Villages Act 2003: (d) any provisions required by the Retirement Villages Act 2003 or regulations made under that Act: (e) any provisions required by the code of practice, unless the operator is exempt from the requirement to comply with that provision: (f) information on the code of residents' rights and the code of practice. 2. The provisions referred to in paragraphs (a) to (e) of clause 1 must be consistent with (a) the Retirement Villages Act 2003, and any regulations made under that Act; and (b) any provision in the code of practice, unless the operator is exempt from the requirement to comply with that provision. Schedule 4 Retirement Villages Act 2003 Basic rights of residents This is a summary of the basic rights given to you by the Retirement Villages Act 2003. Services and other benefits 1 You have the right to services and other benefits promised to you in your occupation right agreement. Information 2 You have the right to information relating to any matters affecting, or likely to affect, the terms or conditions of your residency. Consultation 3 You have the right to be consulted by the operator about any proposed changes in the services and benefits provided or the charges that you pay that will or might have a material impact on your (a) occupancy; or (b) ability to pay for the services and benefits provided. Right to complain 4 You have the right to complain to the operator and to receive a response within a reasonable time. Disputes 5 You have the right to a speedy and efficient process for resolving disputes between you and the operator or between you and other residents of the village. Use of support person or representative 6 You have the right, in your dealings with the operator or other residents of the village, to involve a support person or a person to represent you. The cost of involving a support person or person to represent you must be met by you. Right to be treated with courtesy and have rights respected 7 You have the right to be treated with courtesy and have your rights respected by the operator, the people who work at the village, and the people who provide services at the village. Right not to be exploited 8 You have the right not to be exploited by the operator, the people who work at the village, and the people who provide services at the village. Your obligations to others Your rights exist alongside the rights of other residents and the rights of the operator, the people who work at the village, and the people who provide services at the village. In the same way that these people are expected to respect your rights, it is expected that you in return will respect their rights and treat them with courtesy. Operator's contact person If you want more information about your rights or wish to make a complaint against the operator or another resident, the operator's contact person is [name] [telephone number]. Other contact persons Other contact persons, if you want to make a complaint about a breach of your rights, are (a) the statutory supervisor (if there is one): (b) the Registrar of Retirement Villages: (c) the Retirement Commissioner. Schedule 5 Matters to be included in code of practice The code of practice must specify minimum requirements to be included in any occupation right agreement in relation to the following topics: 1 Staffing of retirement village The matters that must be addressed in the code of practice are (a) the qualifications and experience of staff at each retirement village: (b) arrangements for the training and ongoing supervision of those staff. 2 Safety and personal security of residents The matters that must be addressed in the code of practice are (a) the manner in which the physical environment and management practices at each retirement village must maintain and enhance the physical safety and security of residents (including those with disabilities): (b) the circumstances in which a retirement village can use the personal security of intending residents or residents as a promotional feature in its advertising, and if this is permitted, requirements to ensure that security is maintained at levels featured in any promotional material. 3 Fire protection and emergency management The matters that must be addressed in the code of practice are (a) requirements relating to the protection of residential village units and retirement village facilities from fire: (b) requirements relating to plans, instructions, and equipment for dealing with fire and other emergencies: (c) requirements relating to insurance cover for residential units and retirement village facilities and units for fire and accidental damage: (d) requirements relating to access to residential units and retirement village facilities for those with disabilities. 4 Transfer of residents within retirement village The matters that must be addressed in the code of practice are (a) requirements to be included in occupation right agreements about the transfer of residents from independent self-care units to parts of the retirement village providing greater care: (b) requirements relating to the financial and other arrangements that apply in the event of a transfer of a resident in the circumstances referred to in paragraph (a). 5 Meetings of residents with operator and resident involvement The matters that must be addressed in the code of practice are (a) requirements as to the frequency of meetings between residents and the operator of the retirement village or representatives of the operator: (b) requirements as to the opportunity for residents to participate in decision-making affecting the retirement village and access by the residents to the operator of the retirement village or representatives of the operator. 6 Complaints facility The matters that must be addressed in the code of practice are (a) the procedures for making and acknowledging receipt of complaints by residents (including complaints about another resident of the retirement village): (b) requirements for informing a resident about progress on the resident's complaint at regular intervals: (c) the procedures for (i) resolving complaints; and (ii) making decisions on complaints where resolution is not possible: (d) time limits within which the person dealing with the complaint on behalf of the operator must make and notify a decision on the complaint: (e) requirements as to the form of notification of a decision about a complaint. 7 Accounts The matters that must be addressed in the code of practice are (a) requirements relating to the frequency of accounts for outgoings and service charges: (b) requirements relating to the breakdown of items for which charges are imposed: (b) requirements designed to ensure that accounts are presented in a format that can be readily understood. 8 Maintenance and upgrading The matters that must be addressed in the code of practice are (a) requirements for residents to be notified of a contact person for minor repairs and maintenance: (b) requirements relating to the periodical review of maintenance agreements and the role of residents in respect of those reviews: (c) requirements for the maintenance and periodic upgrading of retirement villages to be provided in the funding arrangements for retirement villages: (d) construction standards for new retirement villages or new residential units within existing retirement villages. 9 Termination of occupation right agreement by operator or resident The matters that must be addressed in the code of practice are (a) the grounds on which an occupation right agreement may be terminated by the operator of the retirement village or a resident: (b) the process that must be followed by the operator or resident before exercising any right to terminate an occupation right agreement: (c) requirements relating to payments due when an occupation right agreement is terminated and the manner in which those amounts are calculated, including (i) the period for which charges will continue to be imposed after termination: (ii) the relationship between those charges and ongoing costs: (iii) the operator's responsibilities in relation to the sale or other disposal of a residential unit made vacant as a result of the termination: (iv) the rights of the former resident or the estate of the former resident in relation to the sale or other disposal of a residential unit made vacant as a result of the termination. 10 Communication The matters that must be addressed in the code of practice are requirements in relation to communication by the operator of a retirement village with residents or intending residents for whom English is a second language or whose ability to communicate is limited.
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