Retirement Villages Act 1999

An Act to provide for the establishment and operation of retirement villages, and for other purposes

1Short title

This Act may be cited as the Retirement Villages Act 1999.

2Commencement

This Act commences on a day to be fixed by proclamation.

div hdg amd 2014 No. 8 s 149

3Objects

(1)The main objects of this Act are—

(a)to promote consumer protection and fair trading practices in operating retirement villages and in supplying services to residents by—

(i)declaring particular rights and obligations of residents and scheme operators; and

(ii)facilitating the disclosure of information to prospective residents of a retirement village to ensure the rights and obligations of the residents and scheme operator may be easily understood; and

(b)to encourage the continued growth and viability of the retirement village industry in the State.

(2)The following are also objects of this Act—

(a)to encourage the adoption of best practice standards by the retirement village industry;

(b)to provide a clear regulatory framework to ensure certainty for the retirement village industry in planning for future expansion;

(c)to facilitate participation by residents, who want to be involved, in the affairs of retirement villages;

(d)to provide for processes for resolving disputes between residents and scheme operators.

s 3 sub 2006 No. 6 s 4

3ARelationship with Fair Trading Inspectors Act 2014

(1)The Fair Trading Inspectors Act 2014 (the FTI Act) enacts common provisions for this Act and particular other Acts about fair trading.

(2)Unless this Act otherwise provides in relation to the FTI Act, the powers that an inspector has under that Act are in addition to and do not limit any powers the inspector may have under this Act.

(3)In this section—

inspector means a person who holds office under the FTI Act as an inspector for this Act.

Note—

See also the modifying provision for this Act stated in the FTI Act, section 8.

s 3A ins 2014 No. 8s 150

4Definitions

The dictionary in the schedule defines particular words used in this Act.

s 4 amd 2002 No. 51s 83

5What is a retirement village

(1)A retirement village is premises where older members of the community or retired persons reside, or are to reside, in independent living units or serviced units, under a retirement village scheme.

(2)In this section—

premises does not include a site within the meaning of the Manufactured Homes (Residential Parks) Act 2003.

s 5 amd 2003 No. 74s 155sch 1

6What is retirement village land

Land is retirement village land if the land is used, or to be used, for a retirement village and, for land included in a community titles scheme within the meaning of the Body Corporate and Community Management Act 1997, includes the lots and common property into which the land is subdivided.

7What is a retirement village scheme

A retirement village scheme is a scheme under which a person—

(a)enters into a residence contract; and

(b)in consideration for paying an ingoing contribution under the residence contract, acquires personally or for someone else, a right to reside in a retirement village, however the right accrues; and

(c)on payment of the relevant charge, acquires personally or for someone else, a right to receive 1 or more services in relation to the retirement village.

8Who is a retirement village scheme operator

A person is a retirement village scheme operator if the person, alone or with someone else, controls the scheme’s operation or purports to control the scheme’s operation.

9Who is a resident

A resident of a retirement village is a person who has a right to reside in the retirement village and a right to receive 1 or more services in relation to the retirement village under a residence contract.

10What is a residence contract

(1)A residence contract is 1 or more written contracts, other than an excluded contract, about residence in a retirement village entered into between a person and the scheme operator.

(2)A residence contract includes any other contract (an ancillary contract) between the person and the scheme operator if the ancillary contract is dependent on, or arises out of, the making of the residence contract or another ancillary contract.

(3)Without limiting the interests that a residence contract may be based on, a residence contract may be based on a freehold interest in an accommodation unit.

(4)To be a residence contract, a contract must—

(a)either—

(i)purport to give a person, or give rise to a person having, an exclusive right to reside in an accommodation unit in the retirement village; or

(ii)provide for, or give rise to, obligations on a person in relation to the person’s or someone else’s residence in the retirement village; and

(b)purport to give a person, or give rise to a person having, a right in common with other residents in the retirement village, to use and enjoy the retirement village’s communal facilities; and

(c)contain or incorporate—

(i)a service agreement or an agreement to enter into a service agreement that includes a copy of the service agreement; and

(ii)if the contract includes an ancillary agreement that is not signed contemporaneously with the contract, an agreement to enter into the ancillary agreement that includes a copy of the ancillary agreement; and

(d)restrict the way in which, or the persons to whom—

(i)the right to reside in the retirement village may be disposed of during the resident’s lifetime; or

(ii)if the contract is based on a freehold interest in an accommodation unit—the resident’s interest may be disposed of during the resident’s lifetime.

s 10 amd 2002 No. 13s 124 sch; 2006 No. 6s 5

11What is an existing residence contract

An existing residence contract is a residence contract existing immediately before the commencement of this Act.

12What is a service agreement

(1)A service agreement is an agreement made between a person and a scheme operator under which general services or personal services are to be supplied for or to the person or someone else when the person or other person becomes a resident of a retirement village.

(2)A service agreement may be in a residence contract.

s 12 amd 2006 No. 6s 6

13What is a public information document

A public information document, for a stated retirement village scheme, is a document, in the approved form under section 74, giving details about the retirement village scheme.

s 13 sub 2006 No. 6s 7

14What is an ingoing contribution

(1)An ingoing contribution is the amount payable by a person under a residence contract to secure the person’s, or someone else’s, right to reside in a retirement village, but does not include a recurrent payment for rent, fees or charges.

(2)It is immaterial whether—

(a)the right to reside in the village is enforceable or not; or

(b)the payment alone secures the right, or something else is also required to secure it.

15What is an exit fee

(1)An exit fee is the amount that a resident may be liable to pay to, or credit the account of, a scheme operator under a residence contract arising from—

(a)the resident ceasing to reside in the accommodation unit to which the contract relates; or

(b)the settlement of the sale of the right to reside in the accommodation unit.

(2)The exit fee for a residence contract, including an existing residence contract, that a resident may be liable to pay to, or credit the account of, the scheme operator is to be calculated as at—

(a)the day the resident ceases to reside in the accommodation unit to which the residence contract relates; or

(b)if a relative of the resident resides in the accommodation unit under section 70B(2)—the sooner of the following days—

(i)the day the relative vacates the accommodation unit;

(ii)the day that is 3 months after the resident’s right to reside in the accommodation unit under the residence contract is terminated under this Act.

Notes—

1Subsection (2) states the day at which the exit fee for a residence contract is to be worked out, and not the method of working out the exit fee.

2Section 53A states how to work out the exit fee for a residence contract that is worked out under the contract having regard to the length of time the resident has resided in the unit.

(3)Subsection (2) applies despite anything to the contrary in an existing residence contract.

(4)In this section, a reference to a resident includes a reference to a person, other than a scheme operator, who enters into a residence contract for the purpose of giving someone else a right to reside in the retirement village.

Example for subsection (4)—

Mr Smith enters into a residence contract with a scheme operator which gives Mr Smith’s mother the right to reside in the retirement village. For this section, a reference to a resident includes not only Mr Smith’s mother who has a right to reside in the retirement village but also Mr Smith.

s 15 amd 2006 No. 6s 8; 2011 No. 45s 242

16What is an exit entitlement

(1)An exit entitlement is the amount that a scheme operator may be liable to pay to, or credit the account of, a former resident under a residence contract arising from—

(a)the resident ceasing to reside in the accommodation unit to which the contract relates; or

(b)the settlement of the sale of the right to reside in the accommodation unit.

(2)In this section, a reference to a former resident includes a reference to a person, other than a scheme operator, who enters into a residence contract for the purpose of giving someone else a right to reside in the retirement village.

s 16 amd 2006 No. 6s 9

17What is a capital replacement fund

A capital replacement fund is a fund established under section 91 for replacing the retirement village’s capital items.

18What is a capital replacement fund contribution

A capital replacement fund contribution is a percentage of the new resident’s ingoing contribution, decided by the scheme operator and described in the public information document as a contribution to the capital replacement fund.

19What is a maintenance reserve fund

A maintenance reserve fund is a fund established under section 97 for maintaining and repairing the retirement village’s capital items.

20What is a maintenance reserve fund contribution

A maintenance reserve fund contribution is that part of the general services charges, decided by the scheme operator and described in the public information document as a contribution to the maintenance reserve fund.

s 20 amd 2006 No. 6s 10

21What is a retirement village dispute

(1)A retirement village dispute is a dispute between a scheme operator and a resident of a retirement village about the parties’ rights and obligations under the resident’s residence contract or this Act.

(2)For subsection (1), a retirement village dispute includes a dispute about compliance by a scheme operator or a resident with this Act, whether or not a particular failure to comply is an offence against this Act.

(3)In this section—

resident includes a former resident.

Note—

In some provisions of this Act there is no means of enforcement apparent on the face of the provision but enforcement by the dispute resolution process is available because of this section.

s 21 amd 2006 No. 6s 11

22What is a retirement village issue

A retirement village issue is—

(a)a retirement village dispute; or

(b)an application for an order under sections 169 to 171 or 173.

s 22 amd 2003 No. 30s 169sch 1

23Application of Act

This Act applies to—

(a)a retirement village scheme, including a scheme for a retirement village to which the Body Corporate and Community Management Act 1997 applies, the scheme operator and inducements and invitations to enter into the scheme if—

(i)the retirement village is, or is to be, situated in the State, irrespective of where the scheme is operated or inducements or invitations to enter into the scheme are given or published; or

(ii)the scheme is operated in the State, irrespective of where the retirement village is, or is to be, situated or inducements or invitations to enter into the scheme are given or published; and

(b)a residence contract entered into before or after the commencement of this section, unless this Act states otherwise.

24Application of Body Corporate and Community Management Act 1997

If there is an inconsistency between this Act and the Body Corporate and Community Management Act 1997 in relation to a person’s rights and obligations under a retirement village scheme, this Act prevails to the extent of the inconsistency.

25Application of Fair Trading Act 1989

This Act does not limit the application of the Fair Trading Act 1989, including the Australian Consumer Law (Queensland) forming part of that Act, to the acquisition, under a residence contract, of goods or services, within the meaning of that Act.

s 25 amd 2010 No. 54s 67 sch

26Certain age restrictions on residence not unlawful

Despite the Anti-Discrimination Act 1991, it is not unlawful for a scheme operator to discriminate on the basis of age if the discrimination merely limits residence in a retirement village to older members of the community and retired persons.

27Application for registration of a retirement village scheme

(1)A person may apply to the chief executive to register a retirement village scheme.

Note—

See part 15 for transitional and savings provisions about existing retirement village schemes.

(2)The application must be in the approved form and accompanied by—

(a)particulars of the following—

(i)the land on which the retirement village’s buildings and facilities are, or are to be, constructed;

(ii)the accommodation units and communal facilities the scheme operator undertakes are, or are to be, available for the village when the scheme is registered;

(iii)the accommodation units and communal facilities the scheme operator intends to make available for the village after the scheme is registered, depending on the sales activity, finance availability, or market conditions, for the village;

(iv)the terms under which persons are, or are to be, invited to enter into the scheme under the residence contracts for the retirement village;

(v)other particulars of the scheme prescribed under a regulation; and

(b)a copy of the public information document for the retirement village; and

(c)the application fee prescribed under a regulation; and

(d)if, before or when the application is made, the chief executive requires the payment of costs under section 88AA(1)—the amount of the costs required to be paid.

(3)A requirement mentioned in subsection (2)(d) is sufficiently made of the applicant if it is made generally of applicants in the approved form or notified on the department’s website.

s 27 amd 2008 No. 69s 74

28Registration of retirement village scheme

(1)The chief executive may register, or refuse to register, a retirement village scheme for which an application for registration has been made.

(2)The chief executive’s decision must be made within 60 days of the later of—

(a)the day the application is received; or

(b)if the particulars with the application do not conform with the requirements of section 27(2) and the chief executive asks for further particulars, the day the particulars are given.

(3)The chief executive may register the scheme only if satisfied—

(a)the application complies with section 27; and

(b)the applicant is not prohibited from operating a retirement village scheme under section 88.

(4)If the chief executive registers the scheme, the chief executive must promptly give the applicant a registration certificate, in the approved form, stating the day the scheme was registered.

(5)If the chief executive refuses to register the scheme, the chief executive must promptly give the applicant a QCAT information notice for the decision.

(6)If the chief executive fails to decide the application in the time required under subsection (2), the chief executive is taken to have refused the application.

Note—

See section 29 about applying to the tribunal to review a refusal decision made, or taken to have been made, by the chief executive under this section.

s 28 amd 2006 No. 6s 12; 2009 No. 24s 753

28ADeregistration of retirement village scheme

(1)This section applies if the chief executive reasonably believes that a retirement village scheme is no longer operating.

(2)The chief executive may, by written notice (a deregistration notice) given to the scheme operator, deregister the scheme, effective from 30 days after the deregistration notice is given to the scheme operator.

(3)The chief executive must also give the scheme operator a QCAT information notice for the decision.

s 28A ins 2006 No. 6s 13

amd 2009 No. 24s 754

29Application to QCAT for review

(1)A person whose application to register a retirement village scheme has been refused, or is taken to have been refused, may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

(2)However, if the chief executive is taken to have refused the application under section 28, the period within which the person may apply to the tribunal for a review of the decision is 88 days after the application to register the scheme was made.

(3)The scheme operator may apply, as provided under the QCAT Act, to the tribunal for a review of the chief executive’s decision to deregister a retirement village scheme.

s 29 amd 2006 No. 6s 14

sub 2009 No. 24s 755

34Offence to operate etc. an unregistered retirement village scheme

(1)If a retirement village scheme is not registered, the scheme operator or proposed scheme operator must not—

(a)operate the scheme; or

(b)induce or invite a person to participate in the scheme by—

(i)residing in the retirement village to which the scheme relates; or

(ii)paying an ingoing contribution; or

(iii)doing another act in relation to the scheme; or

(c)use a document, or publish an advertisement, to induce or invite a person to participate in the scheme by—

(i)residing in the retirement village to which the scheme relates; or

(ii)paying an ingoing contribution; or

(iii)doing another act in relation to the scheme; or

(d)extend an existing retirement village.

Maximum penalty—540 penalty units.

(2)However, the scheme operator or proposed scheme operator does not contravene subsection (1)(c) if the document or advertisement merely invites expressions of interest in the scheme.

(3)In this section—

advertisement includes an advertisement made by publishing a statement or claim—

(a)in a document, including a newspaper or magazine; or

(b)by broadcast, electronic communication, telecommunication, video or film.

induce includes attempt to induce.

35Retirement village scheme register

(1)The chief executive must keep a register for retirement village schemes.

(2)The register must include the following items (the records) for each registered scheme—

(a)copies of the following documents—

(i)the registration certificate;

(ii)the public information documents and notices about inaccuracies in public information documents given under section 36;

(b)the particulars of the scheme mentioned in section 27(2)(a);

(c)the annual financial statements given to the chief executive under section 113(3).

(3)The records are to be kept on the register for at least 10 years.

(4)A person may, on payment of the fee prescribed under a regulation—

(a)inspect the register at a place or places decided by the chief executive; or

(b)take extracts from, or obtain a copy of details in, the register.

(5)The register may be kept in any form that allows a person to have access to it under subsection (4).

s 35 amd 2005 No. 14s 2 sch

36Scheme operator to give notice about inaccuracy in public information document

(1)This section applies if the particulars in a public information document become inaccurate in a way that may materially affect the interests of a resident of the retirement village to which the public information document relates.

(2)Within 28 days after the scheme operator becomes aware of the particulars becoming inaccurate (the inaccuracy), the scheme operator must make a full written disclosure of the inaccuracy to the chief executive and to each resident of the retirement village who is, or is likely to be, materially affected by the inaccuracy.

Maximum penalty—540 penalty units.

(3)Also, the scheme operator must make a full written disclosure of the inaccuracy to a person who has signed a residence contract relating to the retirement village for which the cooling-off period has not ended—

(a)before the cooling-off period ends; or

(b)if the scheme operator has a reasonable excuse for failing to make the disclosure before the end of the cooling-off period—as soon as practicable after becoming aware of the inaccuracy.

Maximum penalty—540 penalty units.

(4)If a person has indicated to the scheme operator that the person intends signing a residence contract relating to the retirement village, the scheme operator must make a full written disclosure of the inaccuracy to the person before the person signs the contract.

Maximum penalty—540 penalty units.

(5)The scheme operator must, as soon as practicable after becoming aware of the inaccuracy, amend the public information document to remove the inaccuracy.

Maximum penalty—540 penalty units.

s 36 sub 2006 No. 6s 16

37Public information document forms part of residence contract

(1)A public information document for each resident is taken to form part of the resident’s residence contract to which the public information document relates.

(2)A notice given to the chief executive and a resident under section 36 is taken to form part of the resident’s residence contract.

(3)If a provision of a public information document is inconsistent with a provision of any other part of the residence contract, the provision that is more beneficial to the resident prevails.

(4)If a provision of a public information document is inconsistent with a provision of this Act, the provision of this Act prevails.

s 37 amd 2006 No. 6s 17

38Chief executive may apply for order appointing a manager of a retirement village

(1)If the chief executive reasonably believes it is necessary to protect the interests of residents of a particular retirement village, the chief executive may apply to the District Court for—

(a)an order that a person be appointed as manager of the retirement village to control its operation; or

(b)in urgent circumstances, an ex parte interim order appointing a stated person as manager of the retirement village.

(2)If the court makes an order under subsection (1), it may, at any time, make any ancillary order it considers necessary to support the order.

39Additional power of chief executive to seek an order

(1)This section applies if the chief executive considers, on reasonable grounds, that a person is contravening section 34.

(2)The chief executive may apply to the District Court for an order to stop the person from contravening the section.

(3)The court may make any order, including an interim order, it considers appropriate.

40Applying to cancel registration

(1)A scheme operator may ask the chief executive to cancel the registration of the retirement village scheme if the operator—

(a)stops operating the scheme; or

(b)proposes to stop operating the scheme.

(2)The request must be written.

(3)The scheme operator must also—

(a)give each resident of the retirement village a written notice stating the following—

(i)the scheme operator has asked the chief executive to cancel the registration of the scheme;

(ii)if there is a statutory charge over the retirement village land, whether or not the operator has asked the chief executive to release the statutory charge over the retirement village land under section 124;

(iii)how it will affect the person if the scheme is cancelled;

(iv)that, within 60 days after the person receives the notice, the person may, by written notice given to the chief executive, object to the cancellation; and

(b)give the chief executive—

(i)a statutory declaration made by the scheme operator stating the facts of the scheme operator’s compliance with paragraph (a); and

(ii)a copy of the notice given to residents under paragraph (a).

(4)In this section—

resident includes a former resident who has not received an exit entitlement to which the former resident is entitled under the former resident’s residence contract.

41Cancelling registration

(1)Subsection (2) applies if—

(a)a statutory charge existed over the retirement village land, the chief executive has released the charge; and

(b)the chief executive is satisfied—

(i)the scheme operator has complied with section 40(3); and

(ii)cancelling the scheme is appropriate, having regard to the objections, if any, made under section 40(3).

(2)The chief executive may—

(a)cancel the registration of the scheme; and

(b)record the cancellation in the register.

42Purpose and intention of part

(1)The purpose of this part is to state minimum requirements for residence contracts.

(2)However, it is not the intention of this part to prevent a scheme operator agreeing in a residence contract or otherwise to conditions that are more beneficial to a resident or former resident than the provisions of this part.

43Scheme operator may enter into residence contract only if scheme is registered

(1)A scheme operator may enter into a residence contract for the retirement village with someone else only if the scheme is registered under this Act.

Maximum penalty—540 penalty units.

(2)If a scheme operator enters into a residence contract in contravention of subsection (1), the contract is not invalid or unenforceable for that reason only, but may be terminated under section 52.

44Person signing residence contract to be given copy

When a person signs a residence contract with a scheme operator, the operator must immediately give the person a single bound document comprised of—

(a)a signed copy of the contract; and

(b)a public information document relating to the contract, unless the document has already been given to the person under section 84; and

(c)if it is intended to enter into another contract, the terms of which are known, that is ancillary to the residence contract—an unsigned copy of the other contract.

Maximum penalty—100 penalty units.

s 44 sub 2006 No. 6s 18

45Content of residence contract

(1)A scheme operator must ensure each residence contract for the retirement village includes details about the following—

(a)the right to rescind the contract under section 48 before the cooling-off period ends;

(b)if the cooling-off period starts on the day the residence contract is signed—the date the cooling-off period ends;

(c)if the cooling-off period starts on the day a later event happens or another contract is entered into—the later event or other contract;

(d)the ingoing contribution payable under the contract;

(e)the exit fee payable under the contract;

(f)the resident’s exit entitlement;

(g)the services charges;

(h)the amounts payable, and when the amounts are payable, by the resident for the maintenance reserve fund for the retirement village;

(i)the insurance for the retirement village, and insurance for which the resident is responsible;

(j)all conditions precedent to the resident’s right to reside in the retirement village;

(k)the resident’s right to resell the right to reside in the accommodation unit;

(l)the resident’s entitlement to audited and unaudited financial statements for the village;

(m)the dispute resolution process established under this Act;

(n)the statutory charge, if relevant to the resident’s title to, or interest in, the accommodation unit;

(o)the resident’s and scheme operator’s rights to terminate the contract;

(p)anything else prescribed under a regulation.

Maximum penalty—100 penalty units.

(2)A provision of a residence contract is of no effect to the extent that it is inconsistent with this Act or purports to restrict or exclude the operation of a provision of this Act.

(3)Also, a provision of a residence contract is of no effect to the extent that it purports to restrict or exclude the operation of a public information document, or a provision of a public information document, taken to form part of the contract under section 37.

s 45 amd 2002 No. 13s 115; 2006 No. 6s 19

45AScheme operator to give notice of end of cooling-off period in particular circumstances

(1)This section applies if the cooling-off period for a residence contract starts on the day a later event happens or another contract is entered into.

(2)The scheme operator must, as soon as practicable after the later event happens or the other contract is entered into, give the resident written notice of—

(a)the date the later event happens or the other contract is entered into; and

(b)the date the cooling-off period ends.

Maximum penalty—100 penalty units.

s 45A ins 2006 No. 6s 20

46Dealing with ingoing contribution

(1)A person who receives an amount as an ingoing contribution under a residence contract must give it to one of the following persons (the trustee) to hold in trust—

(a)the public trustee;

(b)the scheme operator’s lawyer;

(c)a real estate agent;

(d)any authorised trustee corporation under the Corporations Act, section 9.

Maximum penalty—100 penalty units.

(2)If the trustee receives an amount under subsection (1), the trustee’s receipt for the amount is a sufficient discharge for the person for the amount paid.

(3)The trustee must hold the amount in trust until the latest of—

(a)the day the conditions precedent, if any, to the creation of the right to reside to which the amount relates are fulfilled; or

(b)the day the cooling-off period ends; or

(c)if the ingoing contribution relates to an accommodation unit that has not previously been occupied—the day the resident’s accommodation unit is suitable for habitation and the resident is entitled to vacant possession of the unit.

Maximum penalty—100 penalty units.

(4)At the end of the later day, the trustee must pay the amount to the person lawfully entitled to it.

Maximum penalty—100 penalty units.

(5)For subsection (3)(c), without limiting when an accommodation unit is not suitable for habitation, an accommodation unit is not suitable for habitation if—

(a)reticulated water is not connected to the unit; or

(b)all sanitary installations are not installed or are not operational in the unit.

(6)Despite subsection (1), if a person receives an amount as an ingoing contribution under a residence contract after the end of the latest day mentioned in subsection (3), the person may—

(a)if the person is lawfully entitled to the amount—keep the amount; or

(b)otherwise—pay the amount directly to the person lawfully entitled to it.

(7)If there is a dispute between a resident and a scheme operator about who is lawfully entitled to the amount, the dispute is a retirement village dispute.

(8)If a retirement village dispute arises under subsection (7), the scheme operator must give the trustee written notice of the dispute immediately it arises.

Maximum penalty—100 penalty units.

(9)If the trustee is given a notice under subsection (8), the trustee must hold the amount in trust until the dispute is resolved—

(a)as provided for under this Act; or

(b)by agreement, by deed, between the parties.

Maximum penalty—100 penalty units.

(10)However, if the contract is rescinded in the cooling-off period, the trustee must immediately pay the amount to the person by whom it was paid under the contract.

Maximum penalty—100 penalty units.

(11)If a person (the payer) who is required to pay an amount to someone (the payee) under this section does not pay the amount, the payee may recover it, as a debt payable by the payer to the payee.

s 46 amd 2001 No. 45s 29sch 3; 2002 No. 13s 116; 2006 No. 6s 21

47Dealing with instruments assigning property under a residence contract

(1)This section applies if the person (the assignor) who enters into a residence contract to secure the person’s, or someone else’s, right to reside in a retirement village assigns property under the residence contract before the cooling-off period ends.

(2)The scheme operator must ensure the assignment instrument is held in escrow by the public trustee or the scheme operator’s lawyer (the authorised person).

Maximum penalty—100 penalty units.

(3)If the residence contract is rescinded in the cooling-off period, the authorised person must release the assignment instrument to the assignor.

Maximum penalty—100 penalty units.

(4)If the residence contract is not rescinded in the cooling-off period, the authorised person must, at the end of the cooling-off period, release the assignment instrument to the assignee, or someone else at the assignee’s written direction.

Maximum penalty—100 penalty units.

(5)In this section—

assignee means the person in whose favour property is assigned under an assignment instrument.

48Residence contract may be rescinded during cooling-off period

A person who, personally or for someone else, enters into a residence contract to secure the person’s, or other person’s, right to reside in a retirement village may, by written notice given to the scheme operator, rescind the contract before the cooling-off period ends.

49Reassignment of property acquired in cooling-off period

(1)This section applies if the assignee under an assignment instrument mentioned in section 47 acquires the property the subject of the assignment within the cooling-off period.

(2)As soon as possible after the assignee becomes aware the residence contract has been rescinded, the assignee must reassign the property to—

(a)the person from whom the assignee acquired it (the assignor); or

(b)someone else, at the assignor’s written direction.

Maximum penalty—100 penalty units.

(3)The assignee must reassign the property free of all interests, mortgages and other charges to which it has become subject since the assignee acquired it.

Maximum penalty—100 penalty units.

(4)The assignee is responsible for the costs, expenses and duties relating to the reassignment under this section.

50Scheme operator to compensate assignor if property assigned in cooling-off period is not reassigned

(1)This section applies if section 49 requires an assignee to reassign property on rescission of a residence contract but the assignee—

(a)has disposed of the property; or

(b)is unable, when the contract is rescinded, to discharge any interests, mortgages and other charges to which the property has become subject since the assignee acquired it.

(2)The scheme operator for the retirement village to which the contract relates must pay compensation to—

(a)the assignor; or

(b)someone else, at the assignor’s written direction.

(3)The amount of compensation payable—

(a)is, after discounting for any GST payable on any supply relating to the payment of the compensation, the amount equalling the value attributed to the assigned property under the residence contract; and

(b)may be recovered as a debt payable by the scheme operator to the assignor, or other person mentioned in subsection (2)(b), in a court having jurisdiction for the recovery of the amount claimed.

(4)If there are 2 or more scheme operators for the retirement village, the scheme operators are jointly and severally liable to pay the compensation.

s 50 amd 2000 No. 20s 29sch 3

51Definition for div 4

In this division—

resident includes a person who, for someone else, enters into a residence contract to secure the other person’s right to reside in a retirement village.

52Termination by resident

(1)A resident may terminate the resident’s right to reside in a retirement village by 1 month’s written notice given to the scheme operator.

(2)Also, a resident may terminate the resident’s right to reside in a retirement village by written notice given to the scheme operator if the retirement village scheme is not registered.

(3)A notice under subsection (2) must—

(a)be given within 14 days after the resident becomes aware the retirement village scheme is not registered; and

(b)state the day, no earlier than the day on which notice is given, on which the termination takes effect.

(4)If a resident terminates the resident’s right to reside in a retirement village under subsection (2), the scheme operator must refund the full amount of the resident’s ingoing contribution to the resident within 30 days of the termination.

Maximum penalty—540 penalty units.

(5)A resident may recover an amount owing under subsection (4) as a debt owed by the scheme operator.

53Termination by scheme operator

(1)A scheme operator may terminate a resident’s right to reside in the retirement village by giving the written notice required by this section to the resident.

(2)If the resident’s right to reside in the retirement village is to be terminated on either of the following grounds, the scheme operator must give the resident 14 days notice—

(a)the resident has intentionally or recklessly—

(i)injured a person while the person is in the retirement village; or

(ii)seriously damaged the resident’s accommodation unit; or

(iii)seriously damaged property of another person in the retirement village;

(b)the resident is likely, intentionally or recklessly, to do something mentioned in paragraph (a)(i) to (iii).

(3)The scheme operator must give the resident 2 months notice if the resident’s right to reside in the retirement village is to be terminated on any of the following grounds—

(a)the resident has committed a material breach of the contract;

(b)the scheme operator reasonably believes the resident has abandoned the resident’s right to reside in the retirement village;

(c)the scheme operator and a person who has assessed the resident’s care needs under the Aged Care Act 1997 (Cwlth), section 22.4 reasonably believe the resident’s type of accommodation is now unsuitable for the resident.

Example of accommodation that is now unsuitable for the resident—

The resident resides in an independent living unit and now needs help with personal care not normally provided by the scheme operator.

(4)The notice must state—

(a)the grounds on which the right to reside is being terminated; and

(b)the day by which the resident must vacate the retirement village.

(5)If the scheme operator does not know the resident’s current address, the scheme operator may give the notice by publishing it in—

(a)a newspaper circulating throughout the State; and

(b)a newspaper circulating throughout Australia.

(6)The scheme operator must not include the grounds for the termination in the newspaper notice.

Maximum penalty for subsection (6)—50 penalty units.

s 53 amd 2008 No. 69s 73 sch

53AHow to work out particular exit fee for a residence contract

(1)This section applies to an exit fee for a residence contract that is worked out under the contract having regard to the length of time the resident has resided in the accommodation unit to which the contract relates.

Example—

This section applies if the exit fee is 5% of the ingoing contribution payable under the contract after 1 year’s residence in the unit and 6% of the ingoing contribution payable under the contract after 2 years residence in the unit.

(2)If the contract was entered into before the commencement of this section, the exit fee must be worked out on a daily basis unless the contract provides a way of working out the exit fee that is not on a daily basis.

Example of how to work out the exit fee for a residence contract on a daily basis—

If—

(a)the exit fee is 5% of the ingoing contribution payable under the contract after 1 year’s residence in the unit and 6% of the ingoing contribution payable under the contract after 2 years residence in the unit; and

(b)the resident resides in the unit for 1 year and 14 days, but not during a leap year;

the exit fee is 5% of the ingoing contribution payable under the contract for the first year of residence plus ¹⁴/₃₆₅ of 1% of the ingoing contribution payable under the contract for the 14 days of the second year of residence.

(3)If the contract is entered into after the commencement of this section, the exit fee must be worked out on a daily basis.

s 53A ins 2011 No. 45s 243

54Resident may ask for estimate statement of resident’s exit entitlement

(1)This section applies if a resident gives a scheme operator a written notice—

(a)stating the resident is considering terminating the resident’s right to reside in the retirement village under section 52; and

(b)asking the operator to give the resident a written estimate of the resident’s exit entitlement as at the date of the notice.

(2)The scheme operator must comply with the request within 14 days after it is given.

Maximum penalty—40 penalty units.

(3)However, the scheme operator does not contravene subsection (2) if the scheme operator has given the resident an estimate under that subsection within the 6 months immediately preceding the resident’s request.

s 54 amd 2006 No. 6s 22

55Right to reside in a retirement village terminates automatically on resident’s death

A right to reside in an accommodation unit in a retirement village held by a resident terminates on the death of the resident.

56Interpretation for div 5

(1)In this division—

termination date means—

(a)the date a resident’s right to reside under a residence contract, including an existing residence contract, in an accommodation unit in a retirement village is terminated under this Act; or

(b)if a relative of the resident has a right to reside in the accommodation unit under section 70B(2)—the date the relative advises the scheme operator, under section 70B(5)(d), that the relative wants to enter into a residence contract for the accommodation unit.

(2)In this division, if a person holds a freehold interest in an accommodation unit, a reference to the former resident includes a reference to the holder of the freehold interest, unless, in relation to a particular matter, the residence contract in relation to that particular matter provides otherwise.

s 56 sub 2006 No. 6s 23

57Application of div 5

(1)This division applies if a resident’s right to reside under a residence contract, including an existing residence contract, in an accommodation unit in a retirement village is terminated under this Act.

(2)This division applies despite anything to the contrary in an existing residence contract.

s 57 sub 2006 No. 6s 23

58Necessary reinstatement work

(1)Within 30 days after the termination date, the former resident and scheme operator under a residence contract are to negotiate in good faith and, if possible, agree in writing on any reinstatement work to be done for the resident’s accommodation unit.

(2)If the former resident and scheme operator can not, within the 30 days, agree on the reinstatement work to be done—

(a)the scheme operator must give the former resident an itemised quote for doing what the scheme operator considers to be the reinstatement work; and

(b)the former resident may give the scheme operator an itemised quote for doing what the former resident considers to be the reinstatement work.

(3)A quote under subsection (2) must be—

(a)from a qualified tradesperson appropriate for the work; and

(b)given within 44 days after the termination date.

(4)If a relative of the former resident has a right under section 70B(5) to enter into a residence contract for the accommodation unit with the scheme operator and advises the scheme operator, under section 70B(5)(d), that the relative wants to enter into the residence contract, this section applies to the relative as if the relative were the former resident.

(5)The scheme operator must ensure that the reinstatement work is done with as little inconvenience to the relative as is reasonably possible.

s 58 sub 2006 No. 6s 23

59Scheme operator to ensure reinstatement work to be completed

(1)This section applies if—

(a)the former resident and the scheme operator agree on reinstatement work under section 58; or

(b)a relative of the former resident, mentioned in section 58(4), and the scheme operator agree on reinstatement work under section 58; or

(c)the tribunal orders that work be done to reinstate the former resident’s accommodation unit.

(2)The scheme operator must ensure the reinstatement work is completed within—

(a)for reinstatement work agreed on under section 58—

(i)90 days after the vacation date; or

(ii)if the scheme operator and the former resident or the relative agree on another time, the time agreed; or

(b)for reinstatement work ordered to be done by the tribunal—the period fixed by the tribunal.

(3)In this section—

vacation date, of an accommodation unit in a retirement village, means—

(a)for a former resident whose relative has a right to reside in the accommodation unit under section 70B(2)—the date the relative’s right to reside in the accommodation unit under that subsection ends; or

(b)otherwise—the date the former resident vacates the accommodation unit.

s 59 amd 2003 No. 30s 169sch 1; 2006 No. 6s 24

60Scheme operator and former resident to agree on resale value of accommodation unit

(1)Within 30 days after the termination date, the former resident and the scheme operator are to negotiate in good faith and, if possible, agree in writing on the resale value of the right to reside in the accommodation unit.

(2)If the former resident and the scheme operator can not agree on the resale value of the accommodation unit, the scheme operator is to obtain a valuation of the right to reside in the unit from a valuer within a further 14 days.

(3)A valuation obtained under subsection (2) is taken to be the agreed resale value of the right to reside in the accommodation unit.

61Who pays for work in freehold interest scheme

If the former resident’s interest is a freehold interest, the former resident must pay the cost of the labour and materials for the reinstatement work for the former resident’s accommodation unit.

s 61 amd 2006 No. 6s 25

62Who pays for work in leasehold or licence scheme

(1)This section applies if the former resident’s interest in the accommodation unit is a leasehold interest or licence.

(2)If the former resident obtained the interest before the commencement of the 2006 Amendment Act, section 26, the cost of the labour and materials for the reinstatement work for the accommodation unit must be paid by—

(a)to the extent the reinstatement work is required because the former resident caused accelerated wear to the accommodation unit’s interior or deliberate damage to the accommodation unit—the former resident; or

(b)to the extent the reinstatement work is otherwise required and if the residence contract states who is to make the payment—the person stated; or

(c)otherwise—

(i)for a residence contract other than an existing residence contract—the scheme operator; or

(ii)for an existing residence contract—the former resident and the scheme operator in the same proportion as they are to share the gross ingoing contribution on the sale of the right to reside, as provided for in the residence contract.

(3)If the former resident obtained the interest on or after the commencement of the 2006 Amendment Act, section 26, the cost of the labour and materials for the reinstatement work for the accommodation unit must be paid by—

(a)to the extent the reinstatement work is required because the former resident caused accelerated wear to the accommodation unit’s interior or deliberate damage to the accommodation unit—the former resident; or

(b)to the extent the reinstatement work is otherwise required and if the residence agreement provides that the former resident and the scheme operator are to share any capital gain on the sale of the former resident’s interest in the accommodation unit—the former resident and the scheme operator in the same proportion that the capital gain is to be shared; or

(c)otherwise—the scheme operator.

(4)If the scheme operator must pay the cost of reinstatement work, it must be paid out of the scheme operator’s capital replacement fund.

s 62 sub 2006 No. 6s 26

63When former resident’s exit entitlement payable

(1)The scheme operator must pay the exit entitlement of the former resident to the person entitled to receive it on or before the earliest of the following days—

(a)the day it must be paid under the former resident’s residence contract;

(b)the day that is 14 days after the settlement day;

(c)the day that is 18 months after the termination date or any later day fixed by the tribunal by an order under section 171A.

Maximum penalty—540 penalty units.

(2)The scheme operator may pay the exit entitlement at any time on or after the termination date and before the time payment is required under subsection (1) if the operator and the former resident agree on the resale value of the right to reside.

(3)To remove any doubt, it is declared that, for subsection (2), the operator and the former resident are taken to have agreed on the resale value of the right to reside if there is an agreed resale value under section 60(3), 67(4) or 67A(4).

(4)If the former resident has died, a requirement under subsection (1) to pay the exit entitlement by a particular day (the due day) is taken to be a requirement to pay the exit entitlement by the later of—

(a)the due day; or

(b)the day that is 14 days after the operator is shown the probate of the former resident’s will or letters of administration of the former resident’s estate.

(5)At the same time as an exit entitlement is paid under this section, the scheme operator must give the former resident a written statement showing how the exit entitlement was worked out and the particulars of any of the following that are payable by the former resident—

(a)any exit fee;

(b)any accrued general services charges;

(c)any outstanding services charges and fund contributions;

(d)any expenses relating to the resale of the right to reside in the accommodation unit;

(e)any other payments provided for in the contract.

Maximum penalty—100 penalty units.

(6)In this section—

settlement day means the day on which the sale of the right to reside, to a new resident or the scheme operator, is settled.

s 63 amd 2006 No. 6s 27; 2017 No. 42 s 109(1)–(2)

64Units not sold within 6 months

(1)This section applies if—

(a)a former resident’s right to reside in a particular accommodation unit is not sold within 6 months after the termination date; and

(b)the former resident has not been paid an exit entitlement under section 63.

(2)The former resident may engage a real estate agent to effect the sale of the right to reside in the accommodation unit.

65Scheme operator to tell resident of all offers for accommodation unit

(1)This section applies if a former resident has not been paid an exit entitlement under section 63.

(2)The scheme operator must promptly give to the former resident details of each offer to purchase the former resident’s right to reside.

Maximum penalty—40 penalty units.

(3)Also, if the former resident asks, the scheme operator must give information about the following to the former resident as soon as practicable after the end of each month for which the right to reside remains unsold—

(a)all sales inquiries relating to the right to reside;

(b)what steps the operator is taking to promote the sale of the right to reside;

(c)the following particulars of all other rights to reside in accommodation units for sale in the village—

(i)the number of rights for sale;

(ii)the size of the units;

(iii)the selling prices of the rights;

(iv)how long the rights have been for sale.

Maximum penalty for subsection (3)—40 penalty units.

s 65 amd 2006 No. 6s 28

66Accepting offers at less than agreed resale value

(1)If a scheme operator accepts an offer for a right to reside less than the agreed value for the right, the former resident’s exit entitlement is to be worked out as if the right to reside was sold at the agreed value.

(2)If a former resident accepts an offer for a right to reside less than the agreed value, the former resident’s exit entitlement is to be worked out on the amount of the offer.

67Updating agreed resale value

(1)This section applies if—

(a)a former resident’s right to reside in a particular accommodation unit is not sold within 6 months after the termination date; and

(b)the former resident has not been paid an exit entitlement under section 63.

(2)The former resident and the scheme operator are to reconsider the resale value of the right to reside at least every 3 months and, if possible, agree in writing on a new resale value, which may be the same value.

(3)If the former resident and the scheme operator can not agree on the resale value of the accommodation unit, the operator is to obtain a valuation of the right to reside in the unit from a valuer within a further 14 days.

(4)A valuation obtained under subsection (3) is taken to be the agreed resale value of the right to reside in the accommodation unit.

67AUpdating agreed resale value if exit entitlement is payable before right to reside is sold

(1)This section applies if—

(a)a scheme operator is required under section 63(1)(c) to pay an exit entitlement before a former resident’s right to reside in a particular accommodation unit is sold; and

(b)the operator and the former resident have not otherwise agreed on the value of the right to reside for the purpose of calculating the amount of the exit entitlement.

(2)The operator must obtain a valuation of the right to reside from a valuer before, but not more than 14 days before, the day the operator is required to pay the exit entitlement.

(4)A valuation obtained under subsection (2) is taken to be the agreed resale value of the right to reside.

s 67A ins 2017 No. 42 s 114

68Costs of selling

(1)The costs of the sale of a right to reside in a particular accommodation unit, including the costs mentioned in sections 60(2) and 67(3), are to be shared by the former resident and the scheme operator in the same proportion as they are to share the gross ingoing contribution on the sale of the right to reside, as provided for in the residence contract.

(2)However, if the former resident engages a real estate agent to sell the right to reside, the former resident must pay the real estate agent’s costs of the sale, if any, and commission.

(3)Except as provided by subsections (1) and (2), a scheme operator must not charge a former resident a fee, charge or commission, however described, for selling the resident’s right to reside in the resident’s accommodation unit.

Maximum penalty—40 penalty units.

(4)However, subsection (3) does not apply to an operator under an existing residence contract.

s 68 amd 2006 No. 6s 29

69Limited ground for scheme operator to refuse to accept offer

A scheme operator may refuse to accept an offer to purchase a right to reside in an accommodation unit if the operator reasonably believes—

(a)the prospective resident is not within the age limits for residents stated in the public information document; or

(b)the type of unit to which the right to reside relates is unsuitable for the prospective resident.

Example for paragraph (b)—

The accommodation is an independent living unit and the prospective resident needs help with personal care not normally provided by the scheme operator.

70Valuer

(1)For this division, the valuer of the resale value of the right to reside in the unit must be a person who—

(a)is a registered valuer; and

(b)is agreed on by the scheme operator and the former resident.

(2)If the scheme operator and the former resident can not agree on the valuer—

(a)the scheme operator or the former resident must immediately tell the chief executive by written notice; and

(b)the valuer is to be a registered valuer decided by the chief executive within 14 days after the chief executive receives the notice mentioned in paragraph (a).

(3)In this section—

registered valuer means a valuer registered under the Valuers Registration Act 1992.

70AValuer’s independence

In a valuation given under this division, a valuer must state any connection to, or agreement with, the scheme operator that may call into question the independence of the valuation.

s 70A ins 2006 No. 6s 30

div 5A (s 70B) ins 2006 No. 6s 30

70BRelative’s right to reside after death or vacation

(1)This section applies if—

(a)a resident’s right to reside in an accommodation unit under a residence contract, including an existing residence contract, is terminated under this Act because the resident dies or vacates the accommodation unit; and

(b)a relative of the resident, although not a party to the residence contract, was living in the accommodation unit when the residence contract was terminated; and

(c)the relative has lived in the accommodation unit for at least the 6 months immediately before the residence contract was terminated.

(2)The relative has a right to reside in the accommodation unit for 3 months after the day the residence contract is terminated if the relative agrees to be bound by the terms of the resident’s residence contract while the relative continues to live in the accommodation unit.

(3)The relative’s agreement must be in writing and given to the scheme operator within 14 days after the day the residence contract is terminated.

(4)During the 3 months, the relative has all the rights and liabilities of a resident under this Act.

(5)If—

(a)the resident’s interest in the accommodation unit was a leasehold interest or licence; and

(b)no other person has a right under the resident’s residence contract to reside in the accommodation unit; and

(c)the relative meets the eligibility criteria for a resident of the retirement village; and

(d)the relative, at least 14 days before the end of the 3 months, advises the scheme operator, in writing, that the relative wants to enter into a residence contract for the accommodation unit;

then—

(e)the relative has a right to enter into a residence contract for the accommodation unit; and

(f)the scheme operator must enter into a residence contract for the accommodation unit with the relative before the end of the 3 months.

(6)A residence contract entered into under subsection (5) must be on the same terms as would be offered to any other potential resident of the accommodation unit, as adjusted to include any agreement between the relative and the scheme operator about reinstatement work for the accommodation unit.

div 5A (s 70B) ins 2006 No. 6s 30

71Enforcing residence contract

(1)A residence contract is enforceable against the following persons for the recovery of all or part of the exit entitlement—

(a)a person who is a party to the contract;

(b)a person who is not a party to the contract but who, when the contract was entered into—

(i)was the scheme operator for the retirement village to which the contract relates; or

(ii)owned the retirement village land;

(c)a person who is not a party to the contract but who, when the contract is to be enforced—

(i)is the scheme operator; or

(ii)owns the retirement village land.

(2)For the purpose of enforcing a contract against a person mentioned in subsection (1)(b) or (c), the person is taken to be the scheme operator under the contract.

(3)A court may make an order under this section against a person mentioned in subsection (1)(b) only if the court is satisfied—

(a)an order against a person mentioned in subsection (1)(a) or (c) would be ineffectual; and

(b)in the particular circumstances, it is just to make the order.

(4)Subsection (1)(b)(ii) and (1)(c)(ii) are subject to section 72.

72Restriction on enforcing residence contract

(1)This section applies to a person who is not a party to a residence contract that is sought to be enforced against the person, and who, when the enforcement is sought—

(a)is not the scheme operator; but

(b)owns the retirement village land.

(2)The contract can not be enforced against the person for the recovery of all or part of the exit entitlement if—

(a)the person acquired the land as a genuine purchaser for value from a mortgagee exercising power of sale under a mortgage; and

(b)the mortgage was created over the land before 1 November 1989.

73Limit on scheme operator’s liability for breach of residence contract

A scheme operator is not liable for breach of a residence contract for the scheme operator’s failure to supply a general service to a resident under the contract if—

(a)the cost of supplying the service is more than the services charge for the service; and

(b)the residents have not approved the payment of an increased services charge to cover the cost of supplying the service; and

(c)in all the circumstances, the scheme operator acted reasonably.

74Form and content of public information document

(1)A public information document must—

(a)be in the approved form; and

(b)relate to only 1 retirement village scheme.

(2)A copy of the registration certificate for the retirement village scheme must be attached to the public information document.

(3)The public information document must state the day it was given to the chief executive under section 27 or 36.

(4)The public information document must state any age limits for residents that apply to the retirement village scheme.

(5)The approved form must make provision for the following information—

(a)accommodation information;

(b)residents’ contributions information;

(c)information about payments the scheme operator must make to residents;

(d)funds information;

(e)facilities information;

(f)information about the village land;

(g)residents’ rights and obligations information;

(h)resale process information;

(i)dispute resolution information.

(6)This section does not limit the information that may be included in a public information document.

s 74 amd 2006 No. 6s 31

75Accommodation information

For this part, the accommodation information is as follows—

(a)the type and number of accommodation units to which the document relates;

(b)the number of accommodation units available for sale and the sale price of each of the units or, if only a right to reside in a unit is available, the ingoing contribution for the right to reside in the unit;

(c)the type of tenure or interest a resident of the accommodation unit obtains in the retirement village;

(d)the nature of insurance arrangements for the retirement village, including the amount of any excess to which any insurance policy is subject.

s 75 amd 2006 No. 6s 32

76Residents’ contributions information

For this part, the residents’ contributions information is as follows—

(a)the nature of the amounts a resident may be required to pay, for example, an ingoing contribution, an exit fee, services charges, and contributions to particular funds;

(b)how the exit fee is to be worked out, including a table showing the minimum and maximum exit fee amounts payable under a residence contract over the term of the contract;

(c)how the general services charge is worked out in relation to the retirement village’s total operating costs.

77Information about payments scheme operator must make to a resident

For this part, the information about payments the scheme operator must make to residents is how the exit entitlement, if any, is to be worked out if a resident’s right to reside in an accommodation unit is terminated.

78Funds information

For this part, the funds information is as follows—

(a)the details of the funds the scheme operator is required to keep;

(b)the balance in each fund at the end of the previous financial year;

(c)the capital replacement fund contribution;

(d)details of the quantity surveyor’s report used to decide the percentage of the ingoing contribution to be applied toward the capital replacement fund;

(e)for existing residence contracts that provide for an amount from a resident’s services charge to be paid towards capital replacement, details of the amount as worked out by the scheme operator.

79Facilities information

For this part, the facilities information is as follows—

(a)the facilities the scheme operator undertakes to offer a prospective resident under a residence contract for the retirement village;

(b)the facilities the scheme operator proposes offering a prospective resident under a residence contract for the retirement village, depending on sales activity, finance availability or market conditions for the retirement village (each a contingency) and when they are proposed to be offered;

(c)the particular contingency for offering particular facilities mentioned in paragraph (b);

(d)information about when the scheme operator proposes to start levying a charge for the particular facilities mentioned in paragraph (b).

Example for paragraph (d)—

The scheme operator proposes to start levying a charge for the particular facility when the facility is in place.

s 79 amd 2006 No. 6s 33

80Information about retirement village land

For this part, the information about retirement village land is as follows—

(a)whether or not there is a statutory charge created under this Act over the land;

(b)whether or not there are any other encumbrances over the land.

81Residents’ rights information

For this part, the residents’ rights information is as follows—

(a)what a resident’s rights are to rescind a residence contract in the cooling-off period;

(b)what a resident’s rights are, under a residence contract and this Act, to be given financial information about the retirement village scheme operation;

(c)what a resident’s rights are if the residence contract is terminated;

(d)anything else prescribed under a regulation to be residents’ rights information.

82Resale process information

For this part, the resale process information is as follows—

(a)how the resale value is to be decided;

(b)when reinstatement work will be required and who pays for it;

(c)the process for, and effect of, accepting offers, including, for example, when offers may be refused;

(d)the provision of monthly sales information;

(e)how the expenses of sale are to be shared.

83Dispute resolution information

For this part, the dispute resolution information is as follows—

(a)the types of disputes for which dispute resolution is available;

(b)how a dispute may be submitted to mediation or, in the last resort, the tribunal;

(c)the fee for an application to the tribunal for resolution of a dispute.

s 83 amd 2006 No. 6s 34

84Public information document to be given to prospective resident

(1)A scheme operator must give a prospective resident of the retirement village a copy of the public information document before the prospective resident enters into a residence contract for the village.

Maximum penalty—540 penalty units.

(2)For subsection (1), if the residence contract consists of more than 1 written contract, the scheme operator must give the copy of the public information document before the prospective resident enters into any of the contracts.

s 84 amd 2006 No. 6s 35

85Residents’ access to certain documents

(1)A resident may ask the scheme operator to allow the resident to inspect, or take a copy of, a relevant document in the scheme operator’s possession or control.

(2)A request under this section must be—

(a)in writing and state a reasonable time, at least 7 days after it is given, for the resident’s access to the document; and

(b)accompanied by any fee that may be prescribed under a regulation.

(3)The scheme operator must comply with the request.

Maximum penalty—10 penalty units.

(4)In this section—

relevant document means the resident’s residence contract or public information document.

86False or misleading documents

(1)A scheme operator must not give the chief executive or a resident a document containing information the scheme operator knows is false or misleading.

Maximum penalty—200 penalty units.

(2)A complaint against a scheme operator for an offence against subsection (1) is sufficient if it states the information was false or misleading to the scheme operator’s knowledge.

87Definitions for div 1

In this division—

conviction means a finding of guilt, or the acceptance of a plea of guilty, by a court.

criminal history, of a person, means criminal history as defined under the Criminal Law (Rehabilitation of Offenders) Act 1986, other than a spent conviction.

def criminal history ins 2002 No. 13s 117

insolvent under administration has the meaning given by the Corporations Act, section 9.

def insolvent under administration amd 2001 No. 45s 29sch 3

relevant conviction means a conviction, other than a spent conviction, for—

(a)an offence involving fraud or dishonesty punishable, at the time the conviction is recorded, by not less than 3 months imprisonment; or

(b)an offence involving physical violence to someone else.

def relevant conviction amd 2002 No. 13s 117

spent conviction means a conviction—

(a)for which the rehabilitation period under the Criminal Law (Rehabilitation of Offenders) Act 1986 has expired under that Act; and

(b)that is not revived as prescribed by section 11 of that Act.

def spent conviction ins 2002 No. 13s 117

88Persons prohibited from operating a retirement village scheme etc.

(1)A person who is an insolvent under administration must not—

(a)be a scheme operator; or

(b)promote a retirement village scheme; or

(c)sell rights to reside in a retirement village; or

(d)be concerned, directly or indirectly, in managing a retirement village.

Maximum penalty—100 penalty units.

(2)A person who has a relevant conviction must not—

(a)be a scheme operator; or

(b)promote a retirement village scheme; or

(c)sell rights to reside in a retirement village; or

(d)be concerned, directly or indirectly, in managing a retirement village.

Maximum penalty—100 penalty units.

(3)Subsections (1)(b) or (c) and (2)(b) or (c) do not apply to a person who is a resident or a former resident of a retirement village, or who acts for the resident or former resident, who does something mentioned in the subsections only to terminate the resident’s or former resident’s right to reside in an accommodation unit in the retirement village.

88AInvestigations about scheme operators etc.

(1)The chief executive may ask the commissioner of the police service for a report about the criminal history of a person who—

(a)applies to the chief executive to register a retirement village scheme; or

(b)the chief executive reasonably suspects—

(i)is a scheme operator; or

(ii)promotes a retirement village scheme; or

(iii)sells rights to reside in a retirement village; or

(iv)is concerned, directly or indirectly, in managing a retirement village.

(2)The commissioner must give the report to the chief executive.

(3)However, the report is required to contain only criminal history in the commissioner’s possession or to which the commissioner has access.

(4)If the criminal history of the person includes a conviction recorded against the person, the commissioner’s report must be written.

s 88A ins 2002 No. 13s 118

amd 2008 No. 69s 75

88AACosts of criminal history report

(1)The chief executive may require an applicant for the registration of a retirement village scheme to pay the reasonable, but no more than actual, costs of obtaining a report under section 88A about the applicant.

(2)The chief executive must refund to the applicant an amount paid under the requirement if—

(a)the chief executive refuses the application without asking for the report; or

(b)the applicant withdraws the application before the chief executive asks for the report.

(3)In this section—

applicant includes proposed applicant.

s 88AA ins 2008 No. 69s 76

88BConfidentiality of criminal history

(1)An officer, employee or agent of the department (representative) must not, directly or indirectly, disclose to anyone else a report about a person’s criminal history, or information contained in the report, given under section 88A.

Maximum penalty—100 penalty units.

(2)However, the representative does not contravene subsection (1) if—

(a)disclosure of the report or information to someone else is authorised by the chief executive to the extent necessary to perform a function under or in relation to this Act; or

(b)the disclosure is otherwise required or permitted by law.

(3)The chief executive must destroy a written report about a person’s criminal history as soon as practicable after considering it unless a written report about a person’s criminal history is to be used for a prosecution.

s 88B ins 2002 No. 13s 118

amd 2008 No. 69s 77

89Power of attorney

(1)A scheme operator must not exercise or purport to exercise a power conferred on, or exercisable by, the scheme operator under a limited, general or enduring power of attorney given by a resident of the retirement village in favour of the scheme operator.

Maximum penalty—540 penalty units.

(2)However, the scheme operator does not contravene subsection (1) if—

(a)the resident is a spouse or other relative of the scheme operator; or

(b)the scheme operator exercises, or purports to exercise, a power of attorney given to the operator by the resident to execute a surrender of a registered lease in favour of the resident over an accommodation unit after the resident’s residence contract has been lawfully terminated under this Act; or

(c)the resident gives the power of attorney under the Body Corporate and Community Management Act 1997, section 211 or 219.

s 89 amd 2002 No. 74s 90 sch; 2005 No. 14s 2 sch

90Responsibility for capital improvement of retirement village

(1)A scheme operator is solely responsible for the cost of the retirement village’s capital improvement, including the capital improvement of the retirement village’s communal facilities owned by the scheme operator.

(2)This section applies subject to sections 90A and 90B.

s 90 sub 2006 No. 6s 36

90AResponsibility for capital improvement of resident’s accommodation unit

(1)This section applies if—

(a)a resident gives the scheme operator a written request for a particular capital improvement to the resident’s accommodation unit; and

(b)the scheme operator makes or agrees to make the capital improvement.

(2)The resident is solely responsible for the cost of the capital improvement.

s 90A ins 2006 No. 6s 36

90BResidents jointly responsible for capital improvements requested at residents meeting

(1)This section applies if—

(a)residents of a retirement village, by special resolution at a residents meeting, vote to give the scheme operator a written request for a capital improvement to the retirement village; and

(b)the scheme operator makes or agrees to make the capital improvement.

(2)All the residents of the retirement village when the vote was taken are jointly responsible for the cost of the capital improvement.

s 90B ins 2006 No. 6s 36

90CResponsibility of former resident for capital improvement

If a former resident ceases to be liable, under section 104(2)(b), to pay a proportion of the general services charges—

(a)the former resident stops being responsible, under section 90A or 90B, for the cost of a capital improvement; and

(b)the scheme operator becomes liable for the resident’s share of the cost of the capital improvement.

s 90C ins 2006 No. 6s 36

amd 2008 No. 69s 78

90DQuotes for capital improvements

(1)A resident may give the scheme operator a written request to get quotes for a particular capital improvement to the resident’s accommodation unit.

(2)The residents committee may give the scheme operator a written request to get quotes for a particular capital improvement to the retirement village.

(3)If the scheme operator receives a request under subsection (1) or (2), the scheme operator must get at least 2 quotes for carrying out the capital improvement from qualified tradespersons appropriate for the work.

(4)However, the requirement to get at least 2 quotes does not apply if, for exceptional reasons, it is not practicable to get more than 1 quote.

(5)The scheme operator must give copies of the quotes or, if the quotes are voluminous, summaries of the quotes and advice about where the complete quotes may be inspected, promptly to the resident or the residents committee.

(6)Any reasonable cost associated with getting a quote must be paid by—

(a)for a quote requested under subsection (1)—the resident; or

(b)for a quote requested under subsection (2)—all residents jointly.

s 90D ins 2006 No. 6s 36

90EMoney received for capital improvement

(1)As a condition of agreeing to make a capital improvement, the operator may require the resident or residents to pay the cost of the improvement before it is made.

(2)The scheme operator must keep the money received for the cost of a capital improvement in a trust account on trust for the benefit of the resident or residents.

Maximum penalty—540 penalty units.

(3)The scheme operator must not use an amount received for the cost of a capital improvement and standing to the credit of the trust account for a purpose other than the cost of the capital improvement.

Maximum penalty—540 penalty units.

(4)The scheme operator must refund any amount received for the cost of a capital improvement that exceeds the cost of the capital improvement to the resident or residents.

Maximum penalty—540 penalty units.

s 90E ins 2006 No. 6s 36

91Capital replacement fund

(1)A scheme operator must—

(a)establish and keep a fund (the capital replacement fund) for replacing the retirement village’s capital items; and

(b)hold amounts standing to the credit of the fund in a separate account—

(i)that is established and kept for the purpose; and

(ii)the name or style of which includes—

(A)the operator’s name; and

(B)the retirement village scheme the account is for followed by the words ‘secured capital replacement fund account’; and

(iii)that requires withdrawals from it, whether by cheque or otherwise, to be signed by the scheme operator.

Maximum penalty—540 penalty units.

(2)The scheme operator is solely responsible for contributing to the fund.

(3)No amount standing to the credit of the fund may be applied or used for a purpose other than—

(a)replacing the village’s capital items; or

(b)paying the quantity surveyor’s reasonable fees for giving a report for section 92; or

(c)paying tax on amounts paid into the fund under section 94(1)(b).

(4)A person who applies or uses an amount in contravention of subsection (3) commits an offence.

Maximum penalty—540 penalty units.

(5)Without limiting subsection (3), the scheme operator must not use the amount standing to the credit of the fund for—

(a)the village’s capital improvement, maintenance or repairs; or

(b)capital replacement, maintenance or repairs of body corporate property to which the Body Corporate and Community Management Act 1997 applies.

Maximum penalty—540 penalty units.

(6)Immediately the fund is established, a statutory charge is created over it for the benefit of the residents of the village to ensure the availability of the balance of the fund for the purposes mentioned in subsection (3).

(7)The charge has priority over any other charge over the fund given by the scheme operator, including a charge given before the commencement of this section, other than a charge created and given priority over other charges under a Commonwealth law or another law of the State.

(8)Regardless of any change in who controls the scheme’s operation, the charge is irrevocable and continues until—

(a)the village ceases to operate as a retirement village scheme; and

(b)all former residents have been paid their exit entitlement.

92Amount of capital replacement fund

(1)Before a scheme operator decides a budget under section 93, the operator must obtain an independent quantity surveyor’s written report about the expected capital replacement costs for the village for the next 10 years.

Maximum penalty—540 penalty units.

(2)For subsection (1), the report must be—

(a)a full report—

(i)in the 2009 financial year and in every third financial year after that; and

(ii)in any other financial year in which substantial changes have been made to the retirement village; and

(b)an updated report in every financial year in which a full report need not be obtained.

(3)The scheme operator must decide the amount to be held in the capital replacement fund for the village (the capital replacement reserve) having regard to the fund’s purpose, the quantity surveyor’s report and any amounts transferred to the fund under section 232 or 234.

(4)In having regard to the quantity surveyor’s report, the scheme operator must use the scheme operator’s best endeavours to implement the surveyor’s recommendations in the context of—

(a)the objects of this Act; and

(b)any circumstances relevant to the retirement village that apparently were not considered by the quantity surveyor.

(5)If the amount held in an existing retirement village’s capital replacement fund is less than the capital replacement reserve, the operator must decide the amount the operator must pay to the fund to reach the capital replacement reserve within the following period after the commencement of this division—

(a)if the first resident in the village occupied an accommodation unit 5 or more years before the commencement—10 years;

(b)if the first resident in the village occupied an accommodation unit less than 5 years before the commencement—5 years.

(6)If the amount a scheme operator must spend on capital replacement at any time is more than the amount held in the capital replacement fund, the operator must pay the difference between the actual amount to be spent and the amount held in the capital replacement fund.

(7)The operator may adjust the capital replacement fund contribution annually to ensure the capital replacement reserve is reached within the relevant period mentioned in subsection (5).

s 92 amd 2006 No. 6s 37

93Capital replacement fund budget

(1)The scheme operator must adopt a budget (a capital replacement fund budget) for each financial year for the capital replacement fund.

(2)For subsection (1), the capital replacement fund budget must—

(a)allow for raising a reasonable capital amount to—

(i)provide for necessary and reasonable spending from the capital replacement fund for the financial year; and

(ii)reserve an appropriate proportional share of amounts necessary to be accumulated to meet anticipated major expenditure over at least the next 9 years after the financial year; and

(b)fix the amount to be raised by way of capital replacement fund contribution to cover the capital amount mentioned in paragraph (a).

Example—

Replacing a village stand-by electricity generator is anticipated to be necessary in 3 years time at a cost currently estimated at $60,000. The contribution amount for the capital replacement fund in the budget for the financial year must therefore include the annual proportional share for its replacement of $20,000. Next year, the estimated cost has increased to $68,000 and so the second year amount will be $24,000. The estimated cost in the third year is $70,000, so with the $44,000 accumulated, a further $26,000 is necessary to meet the cost.

(3)The residents committee may, by written notice given to the scheme operator, ask the scheme operator to give the residents committee a copy of the draft capital replacement fund budget for the financial year at least 14 days before the beginning of the financial year to which the draft capital replacement fund budget relates.

(4)The notice must be given at least 28 days before the beginning of the financial year to which the draft capital replacement fund budget relates.

(5)The scheme operator must comply with the notice.

s 93 amd 2006 No. 6s 38

94Payments into capital replacement fund

(1)The scheme operator must ensure that the following amounts are paid into the capital replacement fund—

(a)amounts received under insurance policies for the destruction of items of a capital nature;

(b)interest from investment of amounts held in the fund;

(c)the capital replacement fund contribution;

(d)if an existing residence contract requires an amount from a resident’s services charge to be paid towards capital replacement—

(i)if the amount is stated in the contract—the amount; or

(ii)if the amount is not stated in the contract—the amount decided by the operator worked out in the way stated in the public information document;

(e)any amounts transferred to the fund under section 232 or 234;

(f)any amount paid by a resident under section 96(2).

Maximum penalty—540 penalty units.

(2)Subsection (1) does not limit the amounts a scheme operator may pay into the capital replacement fund.

(3)However, the scheme operator must not pay into the capital replacement fund amounts properly payable into another fund.

Maximum penalty for subsection (3)—540 penalty units.

s 94 amd 2002 No. 13s 119

95Restriction on investing capital replacement fund amounts

A scheme operator must not invest an amount standing to the credit of the retirement village’s capital replacement fund other than in an authorised investment under the Trusts Act 1973.

Maximum penalty—540 penalty units.

96Resident liable for replacing certain capital items

(1)This section applies if a capital item of a retirement village is—

(a)deliberately damaged by a resident; or

(b)subjected to accelerated wear caused by a resident’s actions.

(2)The resident is liable for the cost of replacing the item.

97Maintenance reserve fund

(1)A scheme operator must—

(a)establish and keep a fund (the maintenance reserve fund) for maintaining and repairing the retirement village’s capital items; and

(b)hold amounts standing to the credit of the fund on trust solely for the benefit of residents in a trust account that—

(i)is established and kept for the purpose; and

(ii)requires withdrawals from it, whether by cheque or otherwise, to be signed by the scheme operator.

Maximum penalty—540 penalty units.

(2)Residents are solely responsible for contributing to the fund.

(3)The scheme operator must not use an amount standing to the credit of the fund for a purpose other than—

(a)maintaining and repairing the village’s capital items; or

(b)paying the quantity surveyor’s reasonable fees for giving a report for section 98; or

(c)paying tax on amounts paid into the fund under section 100(1)(b).

Maximum penalty—540 penalty units.

(4)Without limiting subsection (3), the scheme operator must not use the amount standing to the credit of the fund for—

(a)the day-to-day maintenance of the village; or

(b)the village’s capital improvement or replacement; or

(c)capital replacement, maintenance or repairs of body corporate property to which the Body Corporate and Community Management Act 1997 applies.

Maximum penalty—540 penalty units.

(5)Regardless of any change in who controls the scheme’s operation, the trust is irrevocable and continues until—

(a)the village ceases to operate as a retirement village scheme; and

(b)all former residents have been paid their exit entitlement.

98Amount of maintenance reserve fund

(1)Before the scheme operator decides a budget under section 99, the operator must obtain an independent quantity surveyor’s written report about the expected maintenance and repair costs for the village for the next 10 years.

Maximum penalty—540 penalty units.

(2)For subsection (1), the report must be—

(a)a full report—

(i)in the 2009 financial year and in every third financial year after that; and

(ii)in any other financial year in which substantial changes have been made to the retirement village; and

(b)an updated report in every financial year in which a full report need not be obtained.

(3)The scheme operator must decide the amount to be held in the maintenance reserve fund for the village (the maintenance reserve) having regard to the fund’s purpose, the quantity surveyor’s report and any amounts transferred to the fund under sections 232 to 234.

(4)In having regard to the quantity surveyor’s report, the scheme operator must use the scheme operator’s best endeavours to implement the surveyor’s recommendations in the context of—

(a)the objects of this Act; and

(b)any circumstances relevant to the retirement village that apparently were not considered by the quantity surveyor.

(5)If the amount held in an existing retirement village’s maintenance reserve fund is less than the maintenance reserve, the operator must increase the maintenance reserve fund contribution to reach the maintenance reserve within the following period after the commencement of this division—

(a)if the first resident in the village occupied an accommodation unit 5 or more years before the commencement—10 years;

(b)if the first resident in the village occupied an accommodation unit less than 5 years before the commencement—5 years.

(6)If the amount a scheme operator must spend on maintenance or repairs at any time is more than the amount held in the maintenance reserve fund, the operator must pay the difference between the actual amount to be spent and the amount held in the maintenance reserve fund.

(7)An amount paid under subsection (6) is to be treated as an interest free loan from the scheme operator to the maintenance reserve fund.

(8)The scheme operator may adjust the maintenance reserve fund contribution annually to ensure the maintenance reserve is reached within the relevant period mentioned in subsection (5).

s 98 amd 2006 No. 6s 39

99Maintenance reserve fund budget

(1)The scheme operator must adopt a budget (a maintenance reserve fund budget) for each financial year for the maintenance reserve fund.

(2)For subsection (1), the maintenance reserve fund budget must—

(a)allow for raising a reasonable amount for maintenance and repairs to—

(i)provide for necessary and reasonable spending from the maintenance reserve fund for the financial year; and

(ii)reserve an appropriate proportional share of amounts necessary to be accumulated to meet anticipated major expenditure over at least the next 9 years after the financial year; and

(b)fix the amount to be raised by way of contribution to cover the estimated recurrent expenditure mentioned in paragraph (a).

Example—

Painting of village property is anticipated to be necessary in 3 years time at a cost currently estimated at $3,000. The contribution amount for the maintenance reserve fund in the budget for the financial year must therefore include the annual proportional share for painting of $1,000. Next year, the estimated cost has increased to $3,400 and so the second year levy will be $1,200. The estimated cost in the third year is $3,500, so with the $2,200 accumulated, a levy of $1,300 is necessary to meet the cost.

(3)The residents committee may, by written notice given to the scheme operator, ask the scheme operator to give the residents committee a copy of the draft maintenance reserve fund budget for the financial year at least 14 days before the beginning of the financial year to which the draft maintenance reserve fund budget relates.

(4)The notice must be given at least 28 days before the beginning of the financial year to which the draft maintenance reserve fund budget relates.

(5)The scheme operator must comply with the notice.

(6)If, at the end of a financial year for which a budget for the maintenance reserve fund is adopted, there is a surplus or deficit, the surplus or deficit in the maintenance reserve fund must be carried forward and taken into account in adopting the budget for the general services charges for the next financial year.

(7)Subsection (6) applies despite section 106(1).

s 99 amd 2006 No. 6s 40

100Payments into maintenance reserve fund

(1)The scheme operator must ensure that the following amounts are paid into the maintenance reserve fund—

(a)the residents’ maintenance reserve fund contributions;

(b)interest received on investments belonging to the fund.

Maximum penalty—540 penalty units.

(2)Subsection (1) does not limit the amounts a scheme operator may pay into the maintenance reserve fund.

(3)However, the scheme operator must not pay into the maintenance reserve fund amounts properly payable into another fund.

Maximum penalty for subsection (3)—540 penalty units.

s 100 amd 2002 No. 13s 120

101Restriction on investing maintenance reserve fund amounts

A scheme operator must not invest an amount standing to the credit of the retirement village’s maintenance reserve fund other than in an authorised investment under the Trusts Act 1973.

Maximum penalty—540 penalty units.

102Charges for personal services for former residents

If a resident of a retirement village who is liable to pay a charge for personal services vacates the village, the scheme operator must not levy the charge against the resident—

(a)after the period of notice given under section 52 or 53 ends; or

(b)if the period of notice given under section 52 is extended—for more than 14 days after the end of the extended period of notice; or

(c)if the resident’s residence contract is terminated because the resident dies—for more than 28 days after the residence contract is terminated.

Maximum penalty—540 penalty units.

s 102 amd 2006 No. 6s 41

102AGeneral services charges budget

(1)The scheme operator must adopt a budget (the general services charges budget) for each financial year for charges for general services.

(2)For subsection (1), the general services charges budget must—

(a)allow for raising a reasonable amount to provide the general services for the financial year; and

(b)fix the amount to be raised by way of contribution to cover the amount.

(3)The residents committee may, by written notice given to the scheme operator, ask the scheme operator to give the residents committee a copy of the draft general services charges budget for the financial year at least 14 days before the beginning of the financial year.

(4)The notice must be given at least 28 days before the beginning of the financial year.

(5)The scheme operator must comply with the notice.

(6)If, at the end of a financial year for which a general services charges budget is adopted, there is a surplus or deficit for the charges, the surplus or deficit must be carried forward and taken into account in adopting the general services charges budget for the next financial year.

(7)Subsection (6) applies despite section 106(1).

s 102A ins 2006 No. 6s 42

103Working out and paying charges for general services for residents

(1)The amount a resident of a retirement village may be charged for general services under a residence contract must be worked out in the way stated in the public information document.

(2)A scheme operator must not charge a resident of a retirement village for general services an amount more than the amount worked out under subsection (1).

Maximum penalty—200 penalty units.

(3)The scheme operator must not include, or provide for, in a residence contract in the charge for general services an amount or component, however described, that is payable for or towards replacing the retirement village’s capital items.

Maximum penalty—200 penalty units.

(4)However, subsection (3) does not apply to an existing residence contract.

(5)Subject to section 104, a resident of a retirement village is responsible for only the resident’s proportion of the general services charges for the period the resident resides in the resident’s accommodation unit.

(6)Subsection (1) or (2) does not prevent the resident from being required to pay, as part of the charge for a general service under a residence contract, an amount directly or indirectly attributable to GST payable for the supply by, or to, the scheme operator for the service.

(7)The scheme operator must not include, or provide for, in the charge for general services an amount or component, however described, that is payable for or towards costs awarded by the tribunal against the scheme operator.

Maximum penalty—200 penalty units.

(8)In this section—

GST has the meaning given by A New Tax System (Goods and Services Tax) Act 1999 (Cwlth).

supply has the meaning given by A New Tax System (Goods and Services Tax) Act 1999 (Cwlth).

s 103 amd 2006 No. 6s 43

104Working out and paying charges for general services for former residents

(1)A former resident of a retirement village is liable for the resident’s proportion of charges for general services after the resident vacates the resident’s accommodation unit until the first of the following happens—

(a)the right to reside in the accommodation unit is sold;

(b)a period of 90 days elapses (the 90-day period);

(c)the tribunal orders the scheme operator to pay the former resident’s exit entitlement under section 171.

(2)If the former resident’s right to reside in the accommodation unit has not been sold within the 90-day period—

(a)the resident and the scheme operator are each liable, after the 90-day period ends, to pay the charges for general services in the same proportion as they are to share the gross ingoing contribution on the sale of the right to reside, as provided for in the residence contract; and

(b)the former resident ceases to be liable to continue to pay a proportion of the charges for general services when the first of the following happens—

(i)the right to reside in the accommodation unit is sold;

(ii)a period of 9 months after the resident vacates the accommodation unit ends.

(3)If a former resident’s right to reside in an accommodation unit has not been sold within the 90-day period, the scheme operator may—

(a)accrue, as a book debt, the resident’s proportion of the charges for general services; and

(b)set off the accrued amount against the resident’s exit entitlement.

(4)A scheme operator must not charge interest on the accrued amount.

Maximum penalty—100 penalty units.

(5)Subsections (1)(b) and (2)(a) do not apply to a former resident under an existing residence contract.

s 104 amd 2003 No. 30s 169sch 1

sub 2006 No. 6s 44

105General services charges for unsold right to reside in accommodation units

(1)A scheme operator must pay the proportion of the general services charges relating to the right to reside in an accommodation unit in the village—

(a)that has not been occupied under a residence contract; or

(b)if the liability of the former resident, who had the right to reside in the accommodation unit, to pay a proportion of the general services charges has ended—

(i)under section 104(3); or

(ii)under the terms of the residence contract; or

(c)for which there is no residence contract in force.

Maximum penalty—200 penalty units.

(2)The scheme operator must pay an amount payable under subsection (1) into the maintenance reserve fund.

s 105 amd 2006 No. 6s 45

106Increasing charges for general services

(1)A scheme operator must not increase the total of general services charges for a retirement village for a financial year by more than the CPI percentage increase for the financial year.

Maximum penalty—200 penalty units.

(2)In this section—

CPI means the all groups consumer price index for Brisbane published by the Australian statistician.

CPI percentage increase, for a financial year, means the percentage increase between—

(a)the CPI published for the quarter ending immediately before the start of the financial year; and

(b)the CPI published for the quarter ending immediately before the end of the financial year.

total of general services charges, for a financial year, means the sum of all charges for general services for the financial year, other than the following charges—

(a)a charge for a general service that has been increased by more than the CPI percentage increase for the financial year and that the retirement village residents, by special resolution at a residents meeting, have approved;

(b)a charge for a general service that has been increased by more than the CPI percentage increase for the financial year and that is allowed under section 107.

s 106 sub 2006 No. 6s 46

107Resident’s responsibility for paying increased general services charge

A resident is not required to pay a charge for a general service under a residence contract to the extent that the charge is more than that payable under the contract and increased under section 106, unless the excess is attributable to an increase in—

(a)rates, taxes or charges levied under an Act in relation to the retirement village land or its use; or

(b)the salary or wages of a person engaged in the retirement village’s operation and payable under an award, certified agreement or other industrial instrument made, approved, certified, or continued in force under—

(i)the Industrial Relations Act 2016; or

(ii)a Commonwealth Act; or

(c)insurance premiums, or insurance excesses paid, in relation to the retirement village or its use; or

(d)maintenance reserve fund contributions.

s 107 amd 2006 No. 6s 47; 2016 No. 63 s 1157 sch 6

107AConsidering more cost-effective alternative services

Before increasing the charge for a particular general service, the scheme operator must consider whether there is a more cost-effective alternative to the general service.

s 107A ins 2006 No. 6s 48

108New services to be approved by majority of residents

(1)A scheme operator may offer residents a service not already supplied under the scheme, for which a services charge is to be, or may be, made, only if the residents agree to it being supplied by special resolution at a residents meeting.

(2)Subsection (1) does not apply to—

(a)a personal service; or

(b)a service that is the same as a service already supplied under the scheme and introduced as a cost-effective alternative after consideration under section 107A; or

(c)another service, if the public information document given to each of the residents stated that the service was proposed to be supplied.

(3)The scheme operator must get at least 2 quotes for supplying the service from qualified tradespersons appropriate for the service.

(4)However, the requirement to get at least 2 quotes does not apply if, for exceptional reasons, it is not practicable to get more than 1 quote.

(5)The scheme operator must give copies of the quotes or, if the quotes are voluminous, summaries of the quotes and advice about where the complete quotes may be inspected, promptly to the residents.

(6)Any cost associated with getting a quote must be paid by the scheme operator.

(7)If any capital improvements are required for the scheme operator to supply the service, the scheme operator may supply the service only if the capital improvements are requested by the retirement village residents under section 90B.

(8)The operator may not charge the residents for the new service before the service is supplied to the residents.

s 108 amd 2006 No. 6s 49

109Definitions for div 8

In this division—

building includes improvements and fixtures forming part of the building, but does not include fixtures installed by a resident removable by the resident at the termination of a residence contract.

damage, for coverage under insurance required to be effected under this division, means—

(a)damage from earthquake, explosion, fire, lightning, storm, tempest or water; or

(b)glass breakage; or

(c)damage from impact, malicious act, or riot.

110Scheme operator must insure village

(1)A scheme operator must insure and keep insured, to full replacement value, the retirement village, including the accommodation units, other than accommodation units owned by residents, and the communal facilities.

Maximum penalty—540 penalty units.

(2)The scheme operator must ensure that insurance taken out under this section—

(a)covers, to the greatest practicable extent—

(i)damage; and

(ii)costs incidental to the reinstatement or replacement of insured buildings, including the cost of taking away debris and the fees of architects and other professional advisers; and

(iii)public liability; and

(b)provides for the reinstatement of property to its condition when new.

Maximum penalty—540 penalty units.

(3)The insurance may be taken out subject to an excess.

(4)However, for insurance other than public liability insurance, the excess must not be more than the maximum excess prescribed under a regulation, unless the residents, by special resolution at a residents meeting, agree otherwise.

(5)For subsection (4), the residents may not agree to the excess being more than 1% of the insured value of the retirement village.

s 110 amd 2002 No. 13s 121; 2006 No. 6s 50

111Scheme operator must keep separate accounts for capital replacement fund and maintenance reserve fund

A scheme operator must ensure separate accounts are kept for the retirement village’s capital replacement fund and maintenance reserve fund.

Maximum penalty—540 penalty units.

112Quarterly financial statements

(1)At the request of a resident, the scheme operator must, within 28 days after receiving the request, give the resident a quarterly financial statement.

Maximum penalty—100 penalty units.

(2)For subsection (1), the statement must list, for the quarter—

(a)the income of, and expenditure from—

(i)the capital replacement fund; and

(ii)the maintenance reserve fund; and

(b)the expenditure involved in providing each general service.

(3)For subsection (1), the statement need not be audited, but must be in a form that is capable of being audited.

(4)At the request of the residents committee, the scheme operator must give the residents committee a document that explains—

(a)the expenditure involved in providing each general service; and

(b)any increase in the expenditure involved in providing a general service that varies from the expected expenditure for the general service in the budget for charges for general services.

Maximum penalty—100 penalty units.

s 112 amd 2002 No. 13s 122

sub 2006 No. 6s 51

113Annual financial statements

(1)A scheme operator must ensure a financial statement showing the following particulars about the retirement village’s operation is given, on request, to a resident within 5 months after the end of each financial year—

(a)income and expenditure of the capital replacement fund for the financial year;

(b)income and expenditure of the maintenance reserve fund for the financial year;

(c)expenditure involved in providing each general service for the financial year;

(d)amounts received for insurance claims relating to the retirement village during the financial year;

(e)assets and liabilities relating to the retirement village as at the end of the financial year;

(f)interests, mortgages and other charges affecting the retirement village’s property as at the end of the financial year.

Maximum penalty—200 penalty units.

(2)The scheme operator must ensure the statement is audited and an audit report issued under Australian Auditing Standards by any of the following—

(a)a member of CPA Australia who holds a current public practice certificate issued by CPA Australia;

(b)a member of The Institute of Chartered Accountants in Australia who holds a current public practice certificate issued by the Institute;

(c)a member of the Institute of Public Accountants who holds a current public practice certificate issued by the Institute;

(d)a registered company auditor.

Maximum penalty—200 penalty units.

(3)The scheme operator must give a copy of the statement to the chief executive within 5 months after the end of each financial year.

Maximum penalty—200 penalty units.

s 113 amd 2006 No. 9s 44; 2006 No. 6s 52; 2013 No. 39s 43sch 1

113AClassification of expenditure

(1)A regulation may prescribe model rules (model classification rules) about the classification of items of expenditure.

(2)Without limiting subsection (1), the model classification rules may—

(a)classify how a particular item of expenditure must be dealt with; and

(b)provide that scheme operators must classify how other items of expenditure must be dealt with.

(3)A scheme operator must comply with the model classification rules in dealing with items of expenditure.

(4)If the model classification rules provide that scheme operators must classify how other items of expenditure must be dealt with, each scheme operator must give the residents of the retirement village written notice of the scheme operator’s classification of the items of expenditure by—

(a)giving the notice to the residents committee; or

(b)if there is no residents committee—putting the notice in a place in the retirement village where it is likely to be seen by most of the residents of the village.

(5)For this section, an item of expenditure is dealt with if it is—

(a)debited to the capital replacement fund; or

(b)debited to the maintenance reserve fund; or

(c)levied as a general service charge.

s 113A ins 2006 No. 6s 53

114Application of pt 6

This part does not apply if a resident holds a freehold interest or a leasehold interest in an accommodation unit in a retirement village.

115Definition for div 2

In this division—

registered, for a security, means registered under the Land Title Act 1994.

116Creating a charge

(1)Immediately the chief executive registers a retirement village scheme, a statutory charge is created over the retirement village land.

(2)As soon as practicable after the scheme is registered, the chief executive must give written notice of its registration to the registrar of titles.

(3)The notice must—

(a)identify the retirement village land; and

(b)state the day on which the scheme was registered.

(4)The registrar of titles must record the charge in the freehold land register under the Land Title Act 1994.

(5)However, subsection (1) does not apply if, before registering a retirement village scheme, the chief executive decides it should not apply—

(a)because the scheme operator is—

(i)an organisation established for a religious, charitable or community purpose; and

(ii)of good standing in operating retirement village schemes; or

(b)because of other exceptional circumstances and the chief executive is satisfied the proposed scheme operator provides another security to secure the rights under a residence contract of a resident in the retirement village.

s 116 amd 2002 No. 13s 124 sch

117Charge extends to new land

(1)This section applies if land (new land) becomes retirement village land of a retirement village after a charge (the original charge) on the original retirement village land (the original land) for the retirement village is created under section 116.

(2)Immediately the new land becomes retirement village land, the charge over the original land is released and a charge is created over the original land and the new land.

(3)The scheme operator must give the chief executive written notice that new land has become retirement village land within 1 month of the new land becoming retirement village land.

Maximum penalty—540 penalty units.

(4)As soon as practicable after receiving the notice, the chief executive must give written notice of the change to the retirement village land to the registrar of titles.

(5)The notice must—

(a)identify the retirement village land; and

(b)state the day on which the new land became retirement village land.

(6)The registrar of titles must record the release of the original charge and the creation of the charge under subsection (2) in the freehold land register under the Land Title Act 1994.

118Effect of charge

A statutory charge under this part secures the right of each resident of the retirement village to which it relates—

(a)to occupy the resident’s accommodation unit; and

(b)to use the village’s communal and recreational facilities; and

(c)to be paid the exit entitlement the resident is entitled to under the resident’s residence contract on termination of the contract.

119Priority of charge

(1)A statutory charge notified to the registrar of titles under this division has priority over all registered securities in or over the retirement village land to which the notice relates, whether or not the security was registered before the statutory charge was notified to the registrar of titles.

(2)However, a statutory charge does not have priority over the following registered securities—

(a)a charge created, and given priority over other charges, under a Commonwealth law or another law of the State;

(b)securities registered in or over the retirement village land before 1 November 1989.

120Enforcing a charge

(1)This section applies if—

(a)retirement village land is subject to a statutory charge under section 116 or 117; and

(b)a court orders an amount be paid by a scheme operator to a retirement village resident in relation to a right of the resident mentioned in section 118(a) to (c) (the original order); and

(c)the amount is not paid by 6 months after the end of the day by which it was required to be paid under the original order.

(2)The person in whose favour the original order was made may apply to the District Court for an order that the retirement village land be sold.

(3)However, a person may make an application under subsection (2) only if—

(a)the person has given the chief executive written notice of the person’s intention to make the application; and

(b)for an amount payable under the original order by way of an exit entitlement, the amount is at least $10,000 or another higher amount prescribed under a regulation.

(4)Each resident of the retirement village, and anyone else who appears to the court to have a sufficient interest in the application, is entitled—

(a)to be joined as a party to the proceeding; and

(b)to be heard on the application.

(5)Unless the court orders otherwise, the applicant must give the residents notice of their right to be heard on the application.

121Orders court may make

(1)On hearing an application under section 120(2), the court may order that the retirement village land be sold only if the court is satisfied—

(a)the original order is unsatisfied and is not likely to be satisfied in any other way open to the applicant; and

(b)it is not contrary to the interests of any resident of the retirement village that the land be sold.

(2)Without limiting the orders it may make, the court may appoint a person to act as the vendor’s agent for the sale.

122Effect of court order

(1)An order for the sale of retirement village land under section 121—

(a)authorises the sale of the land free of all existing securities, other than the securities the court preserves in its order; and

(b)has effect despite—

(i)an existing caveat or lien affecting the land; or

(ii)any Act, other than this Act.

(2)A person appointed as the vendor’s agent under section 121(2) has the power to convey the land to a purchaser and to do all things necessary to effect the conveyance.

(3)On settlement, the vendor is to apply the sale proceeds in the following order—

(a)paying the sale costs and the applicant’s costs in seeking the order for sale;

(b)paying amounts payable under securities ranking in priority to the statutory charge;

(c)satisfying the original order;

(d)paying exit entitlements payable to residents if, because of the court order, the retirement village scheme stops operating or the residence contracts under the scheme terminate;

(e)paying amounts payable under securities ranking in priority after the statutory charge;

(f)paying the balance to the person who owned the retirement village land immediately before the sale, or to someone else at the person’s direction.

(4)For ensuring compliance with subsection (3)(d), the vendor must take reasonable steps to locate any former resident to whom an exit entitlement is payable.

123Extinguishing a charge

(1)A statutory charge created over retirement village land under this part is extinguished on—

(a)its release by the chief executive under section 125; or

(b)the sale of the land under a court order under section 121.

(2)However, subsection (1)(b) does not apply if—

(a)the land continues, or is to continue, to be used under a registered retirement village scheme; and

(b)under the scheme’s residence contracts, a person does not obtain a freehold interest or a leasehold interest in the retirement village land.

124Scheme operator may ask for release of charge if land stops being retirement village land

(1)A scheme operator may ask the chief executive to release the statutory charge created over the retirement village land if—

(a)the land stops being retirement village land; or

(b)the scheme operator proposes to stop using the land for the retirement village.

(2)A request under subsection (1) must be in writing.

(3)The scheme operator must also—

(a)give each resident of the retirement village a notice in writing stating the following—

(i)the scheme operator has asked the chief executive to release the statutory charge over the retirement village land;

(ii)how it will affect the resident if it is released;

(iii)that, within 60 days after the resident receives the notice, the resident may, by written notice given to the chief executive, object to the release; and

(b)give the chief executive—

(i)a statutory declaration made by the scheme operator stating the following—

(A)the fact of the scheme operator’s compliance with paragraph (a);

(B)whether the scheme operator knows or reasonably suspects a person has started, or is likely to start, proceedings to enforce the charge under section 120; and

(ii)a copy of the notice given to residents under paragraph (a).

(4)In this section—

resident includes a former resident who has not received an exit entitlement to which the former resident is entitled under the former resident’s residence contract.

125Chief executive to release charge

(1)The chief executive must release the statutory charge over a retirement village’s land if the chief executive is satisfied—

(a)the scheme operator has complied with section 124; and

(b)having regard to the objections made under the section, it is appropriate to release the charge over the land.

(2)If the chief executive releases a statutory charge under subsection (1), the chief executive must give the registrar of titles written notice of the release of the charge.

(3)On receipt of the notice, the registrar of titles must register the release of the charge over the land.

div hdg amd 2001 No. 71s 551sch 1

126Exemption from charges

A notice by the chief executive under section 116(2), 117(4) or 125(2) and any other instrument given to the registrar of titles to give effect to the recording of a charge or the release of a charge mentioned in those sections by the registrar of titles, is exempt from the payment of registration or other fees under the Land Title Act 1994.

s 126 amd 2001 No. 71s 551sch 1; 2002 No. 51s 101 sch

127Residents committee

(1)The residents of a retirement village may establish, by election conducted among themselves, a residents committee.

(2)A member of the residents committee—

(a)holds office for not more than 1 year, but may be re-elected; and

(b)may be removed, at any time, by special resolution at a meeting of the village residents.

(3)The residents committee may, subject to section 128—

(a)decide its own procedures; and

(b)form subcommittees and decide a subcommittee’s procedures.

(4)If invited by the residents committee, the scheme operator may attend a residents committee meeting and address the members at the meeting.

(5)If the scheme operator attends a residents committee meeting, the scheme operator must leave the meeting after the scheme operator has addressed the members, or been given a reasonable opportunity to address the members, unless the residents committee invites the scheme operator to remain.

s 127 amd 2006 No. 6s 54

128Residents constitution

(1)The residents of a retirement village may, by a majority vote of the residents at a residents meeting, adopt a constitution.

(2)The constitution—

(a)may not be inconsistent with this Act; and

(b)must provide for a matter prescribed under a regulation.

(3)The committee must conform with the constitution.

129Committee’s function

The function of the residents committee is to deal with the scheme operator on behalf of residents about the day-to-day running of the village and any complaints or proposals raised by the residents.

129AMinutes of meetings

(1)The residents committee must ensure full and accurate minutes are taken of each meeting of the residents committee.

(2)For subsection (1), the minutes must include at least the following particulars—

(a)the date, time and place of the meeting;

(b)the names of persons present and details of the capacity in which they attended the meeting;

(c)issues discussed and how each issue was decided or dealt with;

(d)details of correspondence, reports, notices or other documents tabled.

(3)The minutes must be presented at the next residents committee meeting for confirmation, and if confirmed, a member of the residents committee must sign the minutes as accurate.

(4)At the request of a resident, the residents committee must give the resident access to, or a copy of, the minutes of a residents committee meeting.

(5)The minutes of a residents committee meeting are to be kept by the residents committee for the retirement village and, if there is no residents committee for the retirement village, the scheme operator.

s 129A ins 2006 No. 6s 55

129BResidents committee may require scheme operator to attend meeting about budgets

(1)The residents committee may, by written notice given to the scheme operator, ask the scheme operator to attend a meeting of the residents committee that is to be held before the start of a financial year to discuss the following for the financial year—

(a)the draft budget for the capital replacement fund;

(b)the draft budget for the maintenance reserve fund;

(c)the draft budget for charges for general services.

(2)The notice must be given at least 28 days before the beginning of the financial year.

(3)The scheme operator must comply with the notice.

s 129B ins 2006 No. 6s 55

130Residents may make, change or revoke by-laws

(1)The residents of a retirement village may, by special resolution at a residents meeting and with the agreement of the scheme operator, make, change or revoke by-laws for the village.

(2)The scheme operator’s agreement must not be unreasonably withheld.

(3)A by-law may be made about the non-exclusive use and enjoyment of the village.

(4)If there is an inconsistency between a by-law and a provision of a residence contract for the village, the provision prevails to the extent of the inconsistency.

(5)Subsection (3) does not limit the residents’ power under another law to make, change or revoke by-laws.

s 130 amd 2006 No. 6s 56

131Annual meeting

(1)In each year, a scheme operator must call an annual meeting of the residents of the retirement village as soon as reasonably practicable after the annual financial statements mentioned in section 113 are available.

Maximum penalty—100 penalty units.

(2)However, the scheme operator must give each resident at least 21 days written notice of the meeting.

(3)The annual meeting may not be held simultaneously with a meeting that must be held under another Act.

Example—

The meeting may not be held simultaneously with a meeting that is required under the Body Corporate and Community Management Act 1997.

(4)The scheme operator must present the statements to the meeting.

Maximum penalty for subsection (4)—100 penalty units.

132Other meetings

(1)A scheme operator or a residents committee of a retirement village may, by 14 days written notice given to each resident of the village, call a meeting of all the residents.

(2)However, in urgent circumstances, the scheme operator or the residents committee may call a meeting of the residents by giving each resident the written notice of the meeting that is reasonable in the circumstances but not less than 2 days.

(3)The scheme operator may attend a residents meeting and address the residents at the meeting—

(a)if the residents meeting is called by the scheme operator; or

(b)if the residents meeting is called by the residents committee to vote on a special resolution; or

(c)if invited by the residents committee.

(4)If the scheme operator attends a residents meeting called to vote on a special resolution, the scheme operator must leave the meeting after the scheme operator has addressed the meeting, or been given a reasonable opportunity to address the meeting, and the special resolution has been voted on, unless the residents committee invites the scheme operator to remain.

(5)If the scheme operator attends a residents meeting at the residents committee’s invitation, the scheme operator must leave the meeting after the scheme operator has addressed the meeting, or been given a reasonable opportunity to address the meeting, unless the residents committee invites the scheme operator to remain.

(6)In this section—

urgent circumstances means circumstances in which it is not prudent to wait for the usual 14 days written notice of a meeting to be given.

s 132 amd 2006 No. 6s 57

div hdg sub 2006 No. 6s 58

133Voting

(1)The following persons are entitled to vote at a meeting of the residents of a retirement village—

(a)either—

(i)1 resident of each accommodation unit in the retirement village; or

(ii)if the residents have, by special resolution, agreed that each resident of the retirement village should be entitled to vote—each resident of the retirement village;

(b)while a former resident of an accommodation unit is required under section 104 to pay the whole or a proportion of the general services charges—1 former resident of the accommodation unit.

(2)The resident’s vote may be cast by—

(a)the resident; or

(b)a person who the resident has appointed by power of attorney; or

(c)any other person, other than the scheme operator, who the resident has appointed by signed notice to vote by way of proxy vote at a particular meeting stated in the notice.

(3)A signed notice under subsection (2)(c) appointing another person to vote by way of proxy vote must not relate to more than 1 meeting.

(4)A person may not hold more than 2 proxy votes for the meeting.

(5)A resident of a retirement village may cast a vote (postal vote) for a residents meeting by placing the resident’s written vote in a container provided by the scheme operator for the purpose in the common area of the village at least 24 hours before the time when the meeting is to be held.

(6)The scheme operator must provide a secure locked container for postal votes in the common area at least 24 hours before the time the meeting is to be held.

Maximum penalty—10 penalty units.

(7)The scheme operator must not open, or allow to be opened, the container before it is delivered to the chairperson of the meeting.

Maximum penalty—10 penalty units.

(8)The scheme operator must deliver the container to the chairperson of the meeting immediately before the chairperson opens the meeting.

Maximum penalty—10 penalty units.

s 133 amd 2006 No. 6s 59

pt hdg prev pt 8 hdg om 2014 No. 8 s 151

pres pt 8 hdg ins 2017 No. 42 s 140

pt 8 div 1 hdg om 2014 No. 8 s 151

pt 8 div 2 hdg om 2014 No. 8 s 151

pt 8 div 2 sdiv 1 hdg om 2014 No. 8 s 151

pt 8 div 2 sdiv 2 hdg om 2014 No. 8 s 151

pt 8 div 2 sdiv 3 hdg om 2014 No. 8 s 151

pt 8 div 2 sdiv 4 hdg om 2014 No. 8 s 151

pt 8 div 2 sdiv 5 hdg om 2014 No. 8 s 151

pt 8 div 2 sdiv 6 hdg om 2014 No. 8 s 151

134Purpose and enforceability of part

(1)This part states requirements relating to the behaviour of scheme operators and residents, or former residents, of retirement villages.

(2)A dispute about the person’s rights and obligations under this part is a retirement village dispute.

s 134 prev s 134 om 2014 No. 8 s 151

pres s 134 ins 2017 No. 42 s 140

135Scheme operator to respect rights of residents

(1)A scheme operator of a retirement village must respect the rights of residents of the retirement village.

(2)Without limiting subsection (1), the scheme operator—

(a)must not unreasonably interfere with, or allow interference with, the reasonable peace, comfort or privacy of a resident; and

Example—

It may be reasonable for a scheme operator to interfere with a resident’s access to a communal facility to make repairs to the facility.

(b)must take reasonable steps to ensure a resident or a resident’s guest does not interfere with the reasonable peace, comfort or privacy of another resident; and

(c)must use the scheme operator’s best endeavours to ensure each resident lives in an environment free from harassment and intimidation; and

(d)must not restrict the right of a resident to autonomy over the resident’s personal, financial or other affairs or possessions; and

(e)must not restrict a resident from exercising self-reliance in matters relating to the resident’s personal, domestic or financial affairs; and

(f)must, within 21 days after receiving relevant correspondence from a resident or former resident, or the representative of a resident or former resident, give the resident, former resident or representative a complete response to the relevant correspondence.

(3)Nothing in this section prevents the scheme operator, or another person, from entering the resident’s accommodation unit—

(a)if the operator reasonably believes the health or safety of a person in the accommodation unit is at risk; or

(b)in order to carry out urgent repairs; or

(c)otherwise in an emergency; or

(d)if the entry is authorised under a law.

(4)In this section—

complete response, to relevant correspondence, means a written response addressing each complaint, proposal and question in the relevant correspondence.

relevant correspondence means a written complaint, proposal or question about the operation of the retirement village.

representative, of a resident or former resident, means an entity—

(a)established to represent the interests of—

(i)the resident or former resident; or

(ii)residents or former residents generally; and

(b)that is authorised by the resident or former resident to give relevant correspondence to the scheme operator.

s 135 prev s 135 om 2014 No. 8 s 151

pres s 135 ins 2017 No. 42 s 140

136Residents to respect rights of others

(1)A resident of a retirement village must respect the rights of other residents of the retirement village and other persons in the retirement village.

(2)Without limiting subsection (1), a resident of a retirement village—

(a)must not unreasonably interfere, or unreasonably cause or permit interference, with the peace, comfort or privacy of another resident; and

(b)must respect the rights of the scheme operator and the scheme operator’s representatives to work in an environment free from harassment and intimidation; and

(c)must not act in a way that adversely affects the occupational health and safety of a person who is—

(i)working in the retirement village; and

(ii)employed, or otherwise authorised to work in the retirement village, by the scheme operator.

(3)In this section—

representative, of a scheme operator, means—

(a)if the scheme operator is a corporation—an executive officer, employee or agent of the corporation; or

(b)if the scheme operator is an individual—an employee or agent of the individual.

s 136 prev s 136 om 2014 No. 8 s 151

pres s 136 ins 2017 No. 42 s 140

153Parties’ rights under this part preserved

To remove any doubt, it is declared that if a provision of a residence contract requires or permits a dispute under or about the contract to be referred to arbitration or be heard by any court or tribunal, the provision does not limit a party’s rights under this part.

154Preliminary negotiation

(1)The parties to a retirement village dispute may refer the dispute to a mediation process under this part only if the parties have attempted to resolve the dispute under this section.

(2)A party to the dispute (the first party) must give the other party to the dispute (the second party) written notice—

(a)stating the matters in dispute; and

(b)nominating a day, no earlier than 14 days after the notice is given, (the nominated day) for the parties to meet within the village to attempt to resolve the dispute.

(3)The second party must give the first party a written response to the notice within 7 days after receiving the notice.

(4)On the nominated day, or another day within 7 days after the nominated day and agreed by the parties, the parties must meet in the retirement village and attempt to resolve the dispute.

155Mediator’s function

A mediator’s function under this Act is to seek to resolve, by mediation, retirement village disputes within a mediator’s jurisdiction.

156Matters that may be mediated

(1)A mediator may mediate retirement village disputes, other than a retirement village dispute about an issue between the parties that—

(a)is the subject of arbitration; or

(b)has been the subject of an award (interim or final) in an arbitration proceeding; or

(c)is before, or has been decided by, a court.

(2)For subsection (1)(a), a retirement village dispute is only the subject of arbitration if the arbitration proceeding has started.

157Notice of retirement village dispute

(1)A party to a retirement village dispute that a mediator may mediate may apply to the registrar to have the dispute referred to mediation.

(2)The application (the dispute notice) must be—

(a)in the approved form; and

(b)accompanied by the fee prescribed under a regulation; and

(c)given to the registrar.

(3)However, if the resident’s residence contract has been terminated, the dispute notice must be given within 4 months after the payment of the former resident’s exit entitlement.

s 157 amd 2002 No. 51s 101 sch

158Registrar to act on dispute notice

(1)Within 14 days after receiving the dispute notice, the registrar must—

(a)appoint a mediator to mediate the retirement village dispute; and

(b)give written notice to the parties to the dispute of—

(i)the mediator who is to mediate the dispute; and

(ii)the time, date and place of the conference (mediation conference) to be conducted by the mediator.

(2)The notice under subsection (1)(b) must be given at least 7 days before the mediation conference.

s 158 amd 2002 No. 51s 101 sch; 2003 No. 30s 169sch 1

159Right of representation

At a mediation conference, a party to the retirement village dispute may be represented by a lawyer or an agent unless the mediator is satisfied the party should not be represented.

160Conference to be held in private

A mediation conference is not open to the public.

161Parties’ attendance at conference not compellable

A party to a retirement village dispute can not be compelled to attend a mediation conference.

162Parties to mediation conference

(1)A mediator may allow a person to take part in a mediation conference if the mediator is satisfied the person has a sufficient interest in the resolution of the dispute.

(2)However, the person does not become a party to the dispute.

163Mediation agreements

(1)This section applies if the parties to a retirement village dispute reach a mediated agreement on the dispute.

(2)The mediator must record the agreement (the mediation agreement) in writing and have it signed by or for the parties.

(3)The mediator must give a copy of the signed agreement to the registrar as soon as practicable after it is signed.

s 163 amd 2002 No. 51s 101 sch

164No official record of mediation conference

(1)A person must not make a record of anything said at a mediation conference.

Maximum penalty—40 penalty units.

(2)However, the mediator does not contravene subsection (1) if—

(a)the mediator makes notes during the mediation conference the mediator considers appropriate and destroys them at the end of the mediation; or

(b)records an agreement under section 163(2).

165Withdrawal of dispute

(1)A person who has given a dispute notice to the registrar may, by written notice (the withdrawal notice) given to the registrar, withdraw the dispute notice.

(2)The withdrawal notice may be given before or after a mediator has started mediating the dispute.

(3)The registrar must advise the mediator, if appointed, and the other parties to the dispute of the withdrawal as soon as practicable after receipt of the withdrawal notice.

s 165 amd 2002 No. 51s 101 sch

167Application for reference of dispute

A party to a retirement village dispute may apply to the tribunal if—

(a)the parties to the dispute can not reach a mediation agreement to the dispute; or

(b)a party to the dispute does not attend the mediation conference for the dispute; or

(c)the dispute is not settled within 4 months after the dispute notice is given to the registrar; or

(d)the party claims that another party to a mediation agreement has not complied with the agreement within the time specified in it or, if no time is specified, within 2 months after the agreement is signed.

s 167 amd 2002 No. 51s 101 sch; 2003 No. 30s 169sch 1

169Resident’s right to apply for an order if threatened with removal, deprivation or restriction

(1)This section applies if a resident of a retirement village—

(a)is threatened with removal, or is removed, from the village by the scheme operator of the retirement village; or

(b)is threatened with deprivation, or is deprived, of the resident’s right to reside in the village under a residence contract by the operator; or

(c)is threatened with restriction of, or is restricted in, the resident’s use of the retirement village land under the residence contract by the operator.

(2)The resident may apply to the tribunal for an order that the scheme operator do, or not do, a stated thing.

s 169 amd 2002 No. 51s 101 sch; 2003 No. 30s 169sch 1

170Resident may apply for order if given false or misleading documents

(1)This section applies if—

(a)a scheme operator of a retirement village contravenes section 86; and

(b)a resident of the retirement village is materially prejudiced by the contravention.

(2)The resident may apply to the tribunal for an order to have the resident’s residence contract set aside.

s 170 amd 2002 No. 51s 101 sch; 2003 No. 30s 169sch 1

171Former resident may apply for order for payment of exit entitlement

(1)This section applies if—

(a)a retirement village scheme operator fails to comply with section 58(2), 60(2), 65 or 67(2); and

(b)a former resident of the retirement village is materially prejudiced by the failure.

(2)The former resident may apply to the tribunal for an order that the operator pay to the former resident the former resident’s exit entitlement.

s 171 amd 2002 No. 51s 101sch; 2003 No. 30s 169sch 1

171A Operator may apply for extension of time to pay exit entitlement

(1)A scheme operator may apply to the tribunal for an order extending the time by which the operator must pay the exit entitlement of a former resident under section 63(1)(c).

(2)The tribunal may make an order fixing a later day by which the payment is required under section 63(1)(c) if satisfied—

(a)the operator is unlikely to be able to sell the right to reside in the former resident’s accommodation unit before the day payment is required under section 63(1)(c); and

(b)if the order is not made, the operator is likely to suffer undue financial hardship; and

(c)the order would not be unfair to the former resident, having regard to any submissions made by the former resident about hardship he or she is likely to suffer if the order is made.

s 171A ins 2017 No. 42 s 144

div hdg sub 2006 No. 6s 60

173Application to tribunal by group of residents

If, under this Act, a resident of a retirement village may apply to the tribunal, a group of residents of the retirement village may apply jointly to the tribunal about a matter arising from the same or similar facts or circumstances.

s 173 sub 2006 No. 6s 60

div hdg ins 2006 No. 6s 60

174Who may represent a resident before the tribunal

A resident of a retirement village who is an individual may be represented before the tribunal—

(a)by another resident of the retirement village who is not a lawyer; or

(b)by a relative who is not a lawyer; or

(c)with the leave of the tribunal, by a lawyer or another person.

s 174 prev s 174 amd 2002 No. 51s 86

om 2003 No. 30s 169sch 1

pres s 174 ins 2006 No. 6s 60

191Tribunal orders generally

(1)The tribunal may make the orders the tribunal considers to be just to resolve a retirement village issue.

(2)For example, the tribunal may make any 1 or more of the following orders—

(a)an order for a party to the issue to do, or not to do, anything (an enforcement order);

(b)an order requiring a party to the issue to pay an amount (including an amount of compensation) to a specified person (a payment order);

(c)an order that a party to the issue is not required to pay an amount to a specified person;

(d)if the issue is a retirement village dispute—

(i)an order setting aside the mediation agreement between the parties to the dispute; or

(ii)an order giving effect to a settlement agreed on by the parties to the dispute.

(3)An order may specify a time for compliance with it.

(4)Without limiting subsection (1), this section applies if a resident applies for a tribunal order under section 169, 170 or 171.

s 191 amd 2003 No. 30s 169sch 1; 2006 No. 6s 61

192Tribunal orders under section 169

(1)This section applies if a resident applies for a tribunal order under section 169.

(2)In making the order, the tribunal must be satisfied that the actual or threatened removal, deprivation or restriction mentioned in the application—

(a)is, or would be, a breach of the resident’s residence contract; or

(b)is not, or would not be, reasonably justified.

(3)Without limiting subsection (2), the tribunal in deciding the application may have regard to the rights and interests of all persons who may be affected if the order is made.

(4)The order may be made on the conditions and for the period the tribunal decides is appropriate.

193Tribunal orders under section 170

(1)This section applies if a resident applies for a tribunal order under section 170.

(2)In setting a contract aside, the tribunal may make the orders it considers appropriate including, for example, the following—

(a)an order that the scheme operator refund to the resident the ingoing contribution or another amount paid under the contract;

(b)an order that the scheme operator compensate the resident for damages or loss caused by the contravention.

194Tribunal orders under section 171

(1)This section applies if a resident applies for a tribunal order under section 171.

(2)In ordering a scheme operator to pay the exit entitlement to the former resident, the tribunal must base the exit entitlement on the following—

(a)if the resale value of the right to reside in the unit has been agreed under section 60 or 67—that value;

(b)if the resale value of the right to reside in the unit has not been agreed—the resale value of the right to reside in the unit decided by the tribunal under subsection (3).

(3)For subsection (2)(b), the tribunal must obtain an independent valuation of the right to reside in the unit from a valuer.

s 194 amd 2008 No. 69s 73 sch

195Tribunal order under section 171A

(1)This section applies if a scheme operator applies for a tribunal order under section 171A.

(2)Without limiting section 191, the tribunal may make an order that the operator pay the exit entitlement by instalments on stated days.

s 195 prev s 195 amd 2002 No. 51s 101 sch

om 2003 No. 30s 169 sch 1

pres s 195 ins 2017 No. 42 s 146

pt hdg sub 2002 No. 51s 101 sch

pt 12 div 1 hdg om 2003 No. 30s 169sch 1

pt 12 div 1A hdg ins 2002 No. 51s 94

om 2003 No. 30s 169sch 1

pt 12 div 2 hdg om 2003 No. 30s 169sch 1

209Tribunal’s function

The tribunal’s function is to hear retirement village issues that—

(a)are within the tribunal’s jurisdiction; and

(b)it is appointed to hear.

s 209 amd 2003 No. 30s 169sch 1

210Tribunal’s jurisdiction

(1)The tribunal has jurisdiction to hear retirement village issues, other than a retirement village dispute—

(a)about an issue between the parties that—

(i)is the subject of arbitration; or

(ii)has been the subject of an award (interim or final) in an arbitration proceeding; or

(iii)is before, or has been decided by, a court; or

(b)if the amount, value or damages in dispute is more than the monetary limit of the District Court within the meaning of the District Court of Queensland Act 1967, section 68.

(2)For subsection (1)(a)(i), a retirement village dispute is only the subject of arbitration if the arbitration proceeding has started.

s 210 amd 2003 No. 30s 169sch 1; 2008 No. 69s 73 sch

215Exclusion of other jurisdictions

(1)On and after an application about a retirement village issue under part 9 or 10 is given to the registrar, the issue must not be referred to arbitration or heard by any court.

(2)Subsection (1) does not apply if—

(a)the application is withdrawn; or

(b)a proceeding about the issue in dispute was started in a court before the application was given to the registrar and the proceeding has not been removed to the tribunal; or

(c)an application for an order in the nature of an injunction about the issue is made to a court; or

(d)the tribunal orders the issue to be removed to a court under section 210.

s 215 amd 2002 No. 51s 101 sch; 2003 No. 30s 169sch 1

219Starting offence proceedings

A proceeding for an offence against this Act must be started within—

(a)1 year after the offence is committed; or

(b)6 months after the offence comes to the complainant’s knowledge, but within 2 years after the offence is committed.

220Appointments and authority

(1)It is not necessary to prove in a proceeding under this Act—

(a)the chief executive’s appointment; or

(b)the registrar’s appointment; or

(c)the authority of the chief executive or the registrar to do anything under this Act.

(2)Subsection (1) does not apply if reasonable notice is given to the party relying on the appointment or authority that the appointment or authority is to be challenged.

s 220 amd 2002 No. 51s 97; 2014 No. 8s 152

221Evidentiary provisions

(1)This section applies to a proceeding under this Act.

(2)A signature purporting to be the signature of the chief executive is evidence of the signature it purports to be.

(3)A certificate purporting to be signed by the chief executive or the registrar and stating any of the following matters is evidence of the matter—

(a)a particular retirement village scheme has or has not been registered at a time stated in the certificate;

(b)the documents relating to a particular retirement village scheme that are or were, at a time stated in the certificate, included in the register under this Act;

(c)on a stated day, a stated person was given a stated notice under this Act;

(d)a stated fee or other amount is payable by a stated person to someone else and has not been paid;

(e)any matter within the control or knowledge of the chief executive or the registrar and relevant to the proceeding.

(4)A certificate signed by the chief executive or the registrar and stating that a stated document is a copy of a financial or other record, contract or document is evidence of the matter.

s 221 amd 2002 No. 51s 98; 2009 No. 24s 758; 2014 No. 8s 153

222Act’s remedies not exclusive

Nothing in this Act prevents a party to a residence contract from seeking or enforcing another remedy the party may have under another law.

223Protection from liability

(1)An official does not incur civil liability for an act done, or omission made, honestly and without negligence under this Act.

(2)If subsection (1) prevents civil liability attaching to an official, the liability attaches instead to the State.

(3)In this section—

official means—

(a)the chief executive; or

(b)an employee of the department.

224Responsibility for acts or omissions of representatives

(1)Subsections (2) and (3) apply in a proceeding for an offence against this Act.

(2)If it is relevant to prove a person’s state of mind about a particular act or omission, it is enough to show—

(a)the act was done or omitted to be done by a representative of the person within the scope of the representative’s actual or apparent authority; and

(b)the representative had the state of mind.

(3)An act done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission.

(4)In this section—

representative means—

(a)of a corporation—an executive officer, employee or agent of the corporation; or

(b)of an individual—an employee or agent of the individual.

state of mind of a person, includes—

(a)the person’s knowledge, intention, opinion, belief or purpose; and

(b)the person’s reasons for the intention, opinion, belief or purpose.

225Review of operation of s 63(1)(c)

(1)A review of the operation of section 63(1)(c) must be conducted, under this section, to determine the impact of the provision on the following persons—

(a)residents;

(b)former residents;

(c)the families of residents or former residents;

(d)scheme operators.

(2)The review must be conducted by a panel of not more than 4 appropriately qualified persons appointed by the Minister.

(3)The Minister must prepare, and give to the panel, terms of reference to guide the conduct of the review.

(4)The review must start no later than 2 years after the commencement.

s 225 prev s 225 om 2013 No. 51 s 188

pres s 225 ins 2017 No. 42 s 147A

227Approval of forms

The chief executive may approve forms for use under this Act.

227ADelegation of chief executive’s powers

(1)The chief executive may delegate the chief executive’s powers under this Act to an appropriately qualified public service officer.

(2)In this section—

appropriately qualified means having qualifications, experience or standing appropriate to exercise the power.

Example of standing—

a person’s classification level in the public service

s 227A ins 2000 No. 24s 48

228Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)In particular, a regulation may—

(a)provide for the fees payable under this Act; or

(b)create offences and prescribe penalties of not more than 20 penalty units for each offence.

div hdg ins 2006 No. 6s 62

229Existing retirement village schemes

(1)An existing retirement village scheme is taken to be registered under this Act if, at the commencement of this section the scheme was approved under the repealed Act and the approval is in force.

(2)The chief executive must promptly give the scheme operator of the existing retirement village scheme a registration certificate in the approved form.

(3)The scheme operator must, within 6 months after the commencement—

(a)give the chief executive the following—

(i)the public information document for the retirement village;

(ii)the particulars mentioned in section 27(2)(a); and

(b)give each resident of the retirement village a written statement detailing the changes to the resident’s residence contract required by this Act.

Maximum penalty for subsection (3)—540 penalty units.

230Existing exempt organisations and retirement villages

(1)An exemption given to an organisation or an existing retirement village under the repealed Act and in force at the commencement of this section continues under this Act and is to be read with the changes necessary to adapt its operation to the provisions of this Act.

(2)If the exemption operated to exclude a person or retirement village from the operation of a provision of the repealed Act, the exemption continues to operate to exclude the person or village from the operation of a corresponding provision of this Act, other than this provision.

(3)The exemption remains subject, after the commencement, to any condition or time limitation that applied to the exemption immediately before the commencement.

(4)The exemption expires 2 years after the commencement of this section.

(5)Despite subsections (1) to (3), a regulation may prescribe provisions of this Act to which the exemption does not apply.

231Releasing certain existing charges

(1)This section applies if the land of an existing retirement village was subject to a statutory charge under section 33 of the repealed Act immediately before its repeal and either—

(a)the existing retirement village is not a retirement village for this Act; or

(b)a person’s right to reside in the existing retirement village depends on the person holding a registered lease over a part of the retirement village land.

(2)The operator of the existing retirement village may apply to the chief executive to release the charge.

(3)The application must be in writing and state the particulars of a ground mentioned in subsection (1) on which it is made.

(4)The chief executive’s decision whether or not to release the charge must be made within 60 days of the later of—

(a)the day the application is received; or

(b)if the particulars with the application do not conform with the requirements of subsection (3) and the chief executive requests further particulars, the day the particulars are given.

(5)If the chief executive decides to release the charge—

(a)the chief executive must, as soon as practicable after making the decision, give the registrar of titles written notice that the charge is released; and

(b)on receipt of the notice, the registrar of titles must register the release of the charge.

(6)If the chief executive refuses to release the charge, the chief executive must give the operator a signed notice stating—

(a)the reasons for the refusal; and

(b)the operator may appeal against the decision under section 29.

(7)Sections 29 to 33, other than section 30(1)(b), apply to an appeal under subsection (6)(b) as if the decision to refuse to release the charge were a decision to refuse an application to register a retirement village.

s 231 amd 2002 No. 51s 101 sch

232Apportionment of balance where separate funds maintained

(1)This section applies if immediately before the commencement of this section a scheme operator of an existing retirement village maintains separate funds for the retirement village for—

(a)capital replacement; and

(b)maintenance and repairs.

(2)The scheme operator must, within 90 days after the commencement of this section, transfer the balance in those funds to—

(a)for a fund mentioned in subsection (1)(a)—the capital replacement fund; or

(b)for a fund mentioned in subsection (1)(b)—the maintenance reserve fund.

Maximum penalty for subsection (2)—200 penalty units.

233Apportionment of balance where single fund maintained for maintenance and repairs

(1)This section applies if immediately before the commencement of this section a scheme operator of an existing retirement village maintains a single fund for maintenance and repairs for the retirement village.

(2)The scheme operator must, within 90 days after the commencement of this section, transfer the balance in the fund to the maintenance reserve fund.

Maximum penalty for subsection (2)—200 penalty units.

234Apportionment of balance where single fund maintained for capital replacement and maintenance and repairs

(1)This section applies if immediately before the commencement of this section a scheme operator of an existing retirement village maintains a single fund for capital replacement and maintenance and repairs for the retirement village.

(2)The scheme operator must, within 90 days after the commencement of this section, transfer the balance in the fund to the capital replacement fund and the maintenance reserve fund in the proportion that the amount decided by the quantity surveyor under section 92 as expected capital replacement costs is to the amount decided by the quantity surveyor under section 98 as expected maintenance costs.

Example—

If there is $600,000 in an existing fund for capital replacement and maintenance and repairs for the retirement village and the quantity surveyor has decided the amounts required under sections 92 and 98 as $500,000 and $250,000 respectively, out of the $600,000 available, $400,000 is to be transferred to the capital replacement fund and $200,000 is to be transferred to the maintenance reserve fund.

Maximum penalty for subsection (2)—200 penalty units.

235Existing regulations

(1)The regulations in force under the repealed Act immediately before the commencement of this section—

(a)continue in force under this Act, subject to amendment or repeal by a regulation under this Act; and

(b)are to be read with the changes necessary to make them consistent with this Act and adapt their operation to the provisions of this Act.

(2)The regulations expire 1 year after the commencement.

236Existing by-laws

(1)A by-law made under the repealed Act and in force immediately before the commencement of this section continues in force under this Act, subject to amendment or repeal by a by-law under this Act.

(2)Despite section 130, if there is an inconsistency between a by-law made under section 130(1) and by-law made before 1 November 1989 (an existing by-law) and in force immediately before the commencement of this section, the existing by-law prevails to the extent of the inconsistency.

237Retirement Villages Act 1988 references

In an Act or document, a reference to the Retirement Villages Act 1988 may, if the context permits, be taken as a reference to this Act.

div hdg ins 2006 No. 6 s 63

237AExit fees

(1)This section applies if, before the commencement of this section—

(a)a resident had ceased residing in an accommodation unit; and

(b)the resident had not paid the exit fee under the residence contract to the scheme operator.

(2)For calculating the exit fee the resident may be liable to pay to, or credit the account of, the scheme operator, section 15 and any relevant definitions, as in force immediately before the commencement, continue to have effect.

s 237A ins 2006 No. 6s 63

237BNotice about inaccuracy in public information document

(1)This section applies if—

(a)before the commencement of this section, a person had signed a residence contract; and

(b)before the commencement, the cooling-off period for the residence contract had not ended; and

(c)before the cooling-off period ends, and whether before or after the commencement, the scheme operator becomes aware that the particulars in a public information document are inaccurate in a way that may materially affect the interests of a resident of the retirement village.

(2)Despite section 36(3)(a), the scheme operator is not required to make a full written disclosure of the inaccuracy to the person before the cooling-off period ends.

(3)However, the scheme operator must make the disclosure as soon as practicable after becoming aware of the inaccuracy.

Maximum penalty—540 penalty units.

s 237B ins 2006 No. 6 s 63

237CNotice of end of cooling-off period

(1)This section applies if—

(a)the cooling-off period for a residence contract entered into before the commencement of this section starts on the day a later event happens or another contract is entered into; and

(b)on or after the commencement, the later event happens or the other contract is entered into.

(2)Despite section 45A(2), the scheme operator is not required to give the resident written notice of—

(a)the date the later event happens or the other contract is entered into; or

(b)the date the cooling-off period ends.

s 237C ins 2006 No. 6 s 63

237DReinstatement work

(1)This section applies if, before the commencement of this section—

(a)a resident’s right to reside under a residence contract, including an existing residence contract, in an accommodation unit in a retirement village is terminated under this Act; and

(b)the scheme operator and the former resident have not, under section 58, as in force immediately before the commencement, agreed on reinstatement work; and

(c)the tribunal has not made an order that work be done to reinstate the former resident’s accommodation unit.

(2)Sections 56 to 59 and any relevant definitions, as in force immediately before the commencement, continue to have effect in relation to the reinstatement of the former resident’s accommodation unit.

s 237D ins 2006 No. 6 s 63

237EBudgets

(1)If, before the commencement of this section, a scheme operator adopted a budget for the capital reserve fund for the 2006 financial year, sections 92 and 93 and any relevant definitions, as in force immediately before the commencement, continue to have effect for the budget.

(2)If, before the commencement of this section, a scheme operator adopted a budget for the maintenance reserve fund for the 2006 financial year, sections 98 and 99 and any relevant definitions, as in force immediately before the commencement, continue to have effect for the budget.

s 237E ins 2006 No. 6 s 63

237FGeneral services charges for former residents

(1)This section applies if, before the commencement of this section—

(a)a resident of a retirement village has vacated the resident’s accommodation unit; and

(b)the right to reside in the accommodation unit has not been sold; and

(c)the tribunal has not ordered the scheme operator to pay the former resident’s exit entitlement under section 171.

(2)Section 104 and any relevant definitions, as in force immediately before the commencement, continue to have effect for working out and paying the general services charges for the former resident.

s 237F ins 2006 No. 6 s 63

237GInsurance

(1)This section applies if—

(a)immediately before the commencement of this section, the insurance for a retirement village taken out by the scheme operator is subject to an excess; and

(b)the amount of the excess is more than the maximum excess prescribed under a regulation under section 110(4).

(2)During the transitional period, the scheme operator is taken not to have contravened section 110(4) even though—

(a)the residents have not, by special resolution at a residents meeting, agreed to the excess; or

(b)the excess may be more than 1% of the insured value of the retirement village.

(3)In this section—

transitional period means the period—

(a)starting on the day this section commences; and

(b)ending on the day the insurance contract ends or is renewed or renegotiated.

s 237G ins 2006 No. 6 s 63

div hdg ins 2017 No. 42 s 150

237M Prescribed period for repayment of exit entitlement

(1)This section applies to the exit entitlement payable in relation to a residence contract for which the resident’s right to reside was terminated before the commencement.

(2)Section 63, as in force from the commencement, applies in relation to the contract as if the reference in section 63(1)(c) to the termination date were a reference to the day this section commences.

s 237M ins 2017 No. 42 s 150

238Repeal

The Retirement Villages Act 1988 is repealed.

section 4

2006 Amendment Act means the Retirement Villages Amendment Act 2006.

def 2006 Amendment Act ins 2006 No. 6 s 64(2)

accelerated wear means wear that happens more quickly than would have reasonably been expected.

def accelerated wear ins 2006 No. 6 s 64(2)

accommodation unit means the part of a retirement village in which a resident has an exclusive right to reside.

affected by bankruptcy action, in relation to an individual, means the individual, in any jurisdiction—

(a)is bankrupt; or

(b)has compounded with creditors; or

(c)has otherwise taken, or applied to take, advantage of any law about bankruptcy.

def affected by bankruptcy action ins 2002 No. 51 s 100(1)

annual meeting means an annual meeting called under section 131.

approved form see section 227.

approved provider means an approved provider under the Aged Care Act 1997 (Cwlth).

capital improvement—

(a)means the first time provision of a capital item; and

(b)to the extent it is not inconsistent with paragraph (a), includes a thing that is a capital improvement under a ruling under the Taxation Administration Act 1953 (Cwlth) dealing with capital improvement.

def capital improvement sub 2006 No. 6 s 64(1)–(2)

capital items include the following—

(a)all buildings and structures located in the retirement village and owned by the scheme operator, including the communal facilities, amenities and accommodation units, other than items that, under the residence contract, are to be maintained, repaired and replaced by the resident;

(b)all plant, machinery and equipment used in the operation of the village, other than items that are body corporate property;

Examples for paragraph (b)—

communal hot water and air conditioning services, kitchen and dining room equipment, community facility furnishings, gardening equipment, village bus or transportation services

(c)all village infrastructure owned by the scheme operator.

Examples for paragraph (c)—

roadways, pathways, drainage, sewerage mains, landscaping, electrical distribution systems, water services and connections and distribution systems

def capital items amd 2006 No. 6 s 64(3)–(4)

capital replacement fund see section 17.

capital replacement fund contribution see section 18.

chairperson ...

def chairperson ins 2002 No. 51 s 100(1)

sub 2003 No. 30 s 169sch 1

om 2009 No. 24 s 760(1)

conviction, for part 5, division 1, see section 87.

def conviction amd 2008 No. 69 s 73 sch

cooling-off period, for a residence contract, means a 14-day period starting on—

(a)the day the contract is signed; or

(b)if the residence contract is subject to a later event happening or another contract being entered into—the day the later event happens or the other contract is entered into.

def cooling-off period sub 2006 No. 6 s 64(1)–(2)

day-to-day maintenance, of a capital item, means maintenance of the item that is carried out regularly and with little expense.

def day-to-day maintenance ins 2006 No. 6 s 64(2)

decision notice see section 28(5).

def decision notice ins 2006 No. 6 s 64(2)

deregistration notice see section 28A(2).

def deregistration notice ins 2006 No. 6 s 64(2)

dispute notice see section 157.

excluded contract means a written contract between an approved provider and another person under which the approved provider agrees to provide residential care to the person that is at least equivalent to the standard of care that would be required for the approved provider to meet the approved provider’s responsibilities under the Aged Care Act 1997 (Cwlth), chapter 4.

def excluded contract sub 2006 No. 6 s 64(1)–(2)

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

existing residence contract see section 11.

existing retirement village means a retirement village existing immediately before the commencement of this Act.

exit entitlement see section 16.

exit fee see section 15(1).

former resident includes—

(a)a person who, personally or for someone else, entered into a residence contract to secure the person’s or other person’s right to reside in a retirement village; and

(b)the former resident’s personal representative.

freehold interest means a fee simple interest in a lot under the Land Title Act 1994.

FTI Act see section 3A(1).

def FTI Act ins 2014 No. 8 s 154

general services are services supplied, or made available, to all residents of a retirement village.

Examples of general services—

•management and administration

•gardening and general maintenance

•a shop or other facility for supplying goods to residents

•a service or facility for the recreation or entertainment of residents

def general services sub 2006 No. 6 s 64(1)–(2)

gross ingoing contribution means the ingoing contribution before any deductions are made.

def gross ingoing contribution ins 2006 No. 6 s 64(2)

ingoing contribution see section 14.

insolvent under administration for part 5, division 1 see section 87.

leasehold interest means an interest created by an instrument of lease for a lot under the Land Title Act 1994.

maintenance, of a capital item—

(a)means the upkeep of the capital item in good condition and efficient working order; and

(b)to the extent it is not inconsistent with paragraph (a), includes doing something that, under a ruling under the Taxation Administration Act 1953 (Cwlth) dealing with maintenance of capital items, is maintenance of the capital item.

def maintenance sub 2006 No. 6 s 64(1)–(2)

maintenance reserve fund see section 19.

maintenance reserve fund contribution see section 20.

manager, of a retirement village, means the person in charge of its day-to-day operation.

mediation agreement see section 163.

mediation conference see section 158.

def mediation conference ins 2003 No. 30 s 169sch 1

mediator means a person who is—

(a)accredited as a mediator under the Dispute Resolution Centres Act 1990, section 27AB; or

(b)approved as a mediator under the Uniform Civil Procedure Rules 1999; or

(c)approved as a mediator by the Bar Association of Queensland or the Queensland Law Society Incorporated.

def mediator amd 2013 No. 35 s 174sch 1

personal services are optional services supplied or made available for the benefit, care or enjoyment of a resident of a retirement village.

Examples of personal services—

•laundry

•meals

•cleaning the resident’s accommodation unit

def personal services sub 2006 No. 6 s 64(1)–(2)

presiding case manager ...

def presiding case manager ins 2002 No. 51 s 100(1)

sub 2003 No. 30 s 169sch 1

om 2009 No. 24 s 760(1)

public information document see section 13.

QCAT information notice means a notice complying with the QCAT Act, section 157(2).

def QCAT information notice ins 2009 No. 24 s 760(2)

quarter means the 3-month period ending on 31 March, 30 June, 30 September or 31 December.

real estate agent means a real estate agent under the Property Occupations Act 2014.

def real estate agent sub 2014 No. 22 s 287sch 2pt 2

registered, for part 6, division 2, see section 115.

registered company auditor means a person registered as an auditor, or taken to be registered as an auditor, under the Corporations Act, part 9.2.

def registered company auditor amd 2001 No. 45 s 29sch 3

registrar means the principal registrar under the QCAT Act.

def registrar ins 2002 No. 51 s 100(1)

sub 2003 No. 30 s 169sch 1; 2009 No. 24 s 760

reinstatement work, for an accommodation unit, means the replacements or repairs that are reasonably necessary to be done to reinstate the accommodation unit to a marketable condition having regard to—

(a)the condition of the accommodation unit at the start of the former resident’s occupation; and

(b)the general condition of other accommodation units in the retirement village that are comparable with the accommodation unit.

def reinstatement work ins 2006 No. 6 s 64(2)

relative, of a resident, means the resident’s spouse, mother, stepmother, father, stepfather, sister, stepsister, half-sister, brother, stepbrother, half-brother, child or stepchild.

def relative ins 2006 No. 6 s 64(2)

relevant conviction, for part 5, division 1, see section 87.

def relevant conviction amd 2008 No. 69 s 73 sch

repairs, to a capital item—

(a)means the restoration of the item by fixing or replacing parts of the item; and

(b)to the extent it is not inconsistent with paragraph (a), includes doing something that, under a ruling under the Taxation Administration Act 1953 (Cwlth) dealing with repairs to capital items, is repairs to the capital item.

def repairs sub 2006 No. 6 s 64(1)–(2)

repealed Act means the repealed Retirement Villages Act 1988.

replacement, of a capital item—

(a)means the substitution of the same type of item or an equivalent item; and

(b)to the extent it is not inconsistent with paragraph (a), includes doing something that, under a ruling under the Taxation Administration Act 1953 (Cwlth) dealing with replacement of capital items, is replacement of the capital item.

def replacement sub 2006 No. 6 s 64(1)–(2)

residence contract see section 10.

resident—

(a)see section 9; and

(b)for part 3, division 4, see section 51.

residential care has the meaning given by the Aged Care Act 1997 (Cwlth).

residential care subsidy has the meaning given by the Aged Care Act 1997 (Cwlth).

residents committee means a committee established under section 127.

retirement village see section 5.

retirement village dispute see section 21.

retirement village issue see section 22.

retirement village land see section 6.

retirement village scheme see section 7.

retirement village scheme operator see section 8.

scheme means a retirement village scheme.

scheme operator means a retirement village scheme operator.

security means an interest, mortgage or other charge in or over land.

service agreement see section 12.

services charge means a charge payable by a resident for a general or personal service under a residence contract.

sold, for a right to reside in an accommodation unit, means when a contract for the sale of the right is settled.

special resolution, at a residents meeting, means a resolution passed—

(a)at the meeting of which the residents are given at least 21 days written notice stating the intention to propose the resolution as a special resolution; and

(b)by at least three-quarters of the persons entitled to vote who vote—

(i)personally or by proxy at the meeting; or

(ii)by postal ballot.

def special resolution amd 2006 No. 6 s 64(5)

termination date, for part 3, division 5, see section 56.

tribunal means QCAT.

def tribunal sub 2003 No. 30 s 169sch 1; 2009 No. 24 s 760

tribunal panel ...

def tribunal panel om 2003 No. 30 s 169sch 1

valuer, for part 3, division 5, see section 70.

sch hdg (prev sch 2 hdg) amd 2002 No. 51 s 100(2)