Justice and Electoral Select Committee on the Retirement Villages Bill
Summary of the report 2nd May 2003

Full Report

There are a large number text changes made for clarification purposes and apologies if in reading through a rather complex document, any important changes have been omitted.

Section 5 Interpretation.
Disclosure statement now required to incorporate Schedule 1A where the fiscal implications are detailed.
Schedule 1A is a new schedule and it is included in full at the end of this page.

Securities Commission eliminated from the Act and the Retirement Commissioner used.

Section 6 Meaning of Retirement Villages
clarified re Rest Homes and Private Hospitals.

Section 10 Retirement Village to be registered
A Retirement Village is required to be registered . - when registered it will be required to conform to the Act especially the schedules.

Section 12 Registration of existing villages
to be done within 6 months from the day section 10 comes into force.Then there is an Obligation to issue residents with disclosure statement that complies with the Act.

Section 26 Occupation Rights agreement.
Intending residents must receive independent legal advice before signing the occupation agreement and signature on the agreement must be witnessed by a lawyer who must explain the general effect of the agreement and its implications.

Section 27 Cooling off period and cancellation for delay
Cooling off period has been increased to 15 working days and cancellation of the agreement within this time to be in writing.

Section 28 Deposits and other payments must be independently held
Any deposit to be held in an interest bearing deposit.

Section 29 Informatioon to be supplied
Before any occupational agreement is entered into the intending Resident must receive a disclosure statement that complies with Schedule 1A

Section 29A Occupational right agreement voidable
Occupational agreement is voidable if in contravention of suspension of registration , advertising unregistered villages , requirement to supply disclosure statement and/or code of rights and/or copy of occupation rights agreement

Also specifies refund , interest & costs resident is entitled to receive.

Section 30 Retirement Villages to have code of residents' rights
Code of Resident's rights in schedule 3 to be a summary of the minimum rights.

Section 36 Registrar must approve statutory supervisor
Register now approves the statutory supervisor Operator must appoint a statutory supervisor unless an exemption recommended by Minister.

Section 37 Operator must appoint statutory suprviser
Contains section 37A, section 37B ,section 37C which define various requirements of statutory superviser re termination of appointment , not being exempt from liability and exemption from requirement for satutory superviser.

Section 38 Duties of the Statutory supervisor
These are defined in the Act rather than schedule 4

Section 40 Interpretation
Two forms of dispute procedure now defined - a complaints facility and dispute resolution.
Dispute has to be referred to complaints facility and if after 20 days no action then can go to dispute resolution

Section 41 1A Type of dispute for which operator may give dispute notice
dispute notice covers operater's decisions which

• Affect resident's rights to access services or facilities
• Changes to charges payable by residents
• deductions and charges following disposla of unit
• resolution of a dispute concerning operater's breach in disposing of unit formally occupied by resident.

Section 42 Form of dispute notice
A dispute notice must

• be written : and
• identify the decision or decisions , or matters , in respect of which it is made : and
• identify the person or persons in respect of whom it is made, if not the operator: and
• state the grounds on which it is made : and
• state the efforts that have been made to resolve the dispute

Section 42A Time for giving dispute notice
Dispute notice must be given within 6 months of being referred to complaints facility except resident may not give dispute notice for a dispute under section 41(1A) concerning unit for disposalwithin 9 months

Note the following provisions are to be included in the Code of Practice which has to be approved by the Minister - apparently the Parliamentary Counsel considers it can't go in the Act proper .

• Unit not sold within 3 months the operator must report monthly intervals to the resident on steps taken to sell
• Unit not sold after 6 months resident has right to request independent valuation at operater's expense.
• Unit not sold after 9 monyths resident can go to dispute panel chaired by retired judge or experienced lawyer.

Section 42B Retirement Commissioner approves persons elegible for appointment to dispute panel

Section 43 Operator must appoint disputes panel
Operater must appoint panel within 20 working days after receipt of dispute notice.

Section 43A Composition of disputes panel
operater may appoint 1 or more independent persons to dispute panel after consultation with other parties to the dispute and the persons name must be on the Retirement Commissioner list.

For disputes re sale of unit the panel consists of 3 members and one must be retired judge or experienced barrister or soliciter.

Section 48A Panel may refuse to hear dispute
Dispute panel may refuse to hear dispute if

• Frivilous or vexatious
• Should be heard in court of law
• or any other sufficient reason.

In case of sale of vacated unit the panel must take into account

• relevant real estate market
• age and condition of village
• effect of decision on the other residents and stability of the village.

Section 51A Additional powers of disputes panel in certain disputes
defines what the dispute panel can order for 41 1A

• Market in a particular way or at particular price
• Payment to resident of compensatiuon sum
• Pay resident interest
• Order that operater must buy the unit at set prce and time fixed by panel.

Section 52 effect and enforcement of dispute resolution decisions.
Clause (4) is added to make an order made by dispute panel enforceable in law.

Section 65 Code of Practice must be prepared and published
Code of Practice approved by Minister will be applicable to all Retirement Villages.
If no code Of Practice submitted by any retirement village or association/group of retirement villages is acceptable to the Minister then the Minister will publish a Code of Practice.

Schedules

Note that Schedule 1A is new , Schedule 2 substantially altered, Schedule 3 rewritten , Schedule 4 eliminated, Schedule 5 major additions

Schedule 1A
Disclosure statements

Required information

1 Ownership, management, and supervision

(b) the type of interest a resident of the retirement village has in his or her residential unit, including (without limitation)-

• whether the interest can be sold or otherwise dealt with; and
  
• any conditions or restrictions on that sale or disposition:

(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

• its stage of completion; and
  
• the numbers of occupied and unoccupied residential units and
  
• the number of new units planned; and
  
• 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:

(c) charges of all kinds, including (without limitation)-

• entry costs, transfer costs, periodical charges, and charges for maintenance, rates, and insurance; and
  
• the frequency of billing; and
• 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) the cooling-off period and the right to cancel for delay provided by section 27 of the Retirement Villages Act 2001, 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)-

• the effect of termination on the position of other persons living in the residential unit vacated by the resident; and
• the nature of any continuing charges following termination; and
• the process to be followed in finding a new resident for a vacant residential unit; and
• 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)-

• deductions made on entry or exit from the retirement village and deductions from periodical payments; and
• deductions made for the purposes of maintenance, refurbishment, and development; and
• 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; including (without limitation)-

• how that estimated return is affected by the duration of the resident's occupation; and
• 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) disclose whether any holder of a security interest to whom section 12(1)(ab) applies has refused to consent to the registration of the village; and

(b) contain all prescribed details of any exemption from the requirement to comply with a provision or provisions of 25 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 2001.

Schedule 2
Occupation right agreements

Required information and provisions

• the staffing of the retirement village:
• the safety and personal security of residents:
• fire protection and emergency management:
• the transfer of residents within the retirement village:
• meetings of residents with the operator:
• accounts:
• maintenance and upgrading:
• the termination of the occupation right agreement by a resident or the operator:
• communication to those for whom English is a second language or whose ability to communicate is limited:

(b) provisions requiring-

• the operator to consult with residents before selling or disposing of the operator's interest in the village, putting the village on the market, or appointing a new manager:
• the operator to consult with the residents about any proposed changes in the services and benefits provided 30 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:
• 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:
• 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 2001:

(d) any provisions required by the Retirement Villages Act 2001 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 2001, 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 3
Code of residents' rights

Basic rights of residents

• occupancy; or
• ability to pay for the services and benefits provided.

Your obligations to others

Operator's contact person

Other contact persons

• the statutory supervisor (if there is one):
• the Registrar of Companies:
• 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 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-
  25 (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.

  5A 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.

  6 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 20 which charges are imposed:
  (c) requirements designed to ensure that accounts are presented in a format that can be readily understood.
  

  7 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.

  8 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 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 unit made vacant as a result of the termination.

  9 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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