Australian and New Zealand Retirement Villages ... - Minter Ellison

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2009 – Australian and New Zealand Retirement Villages Legislation Compendium – MINTER ELLISON 5 Endorsement – Retirement Village Association With more than 685 village and associate members across Australia, a key focus for the Retirement Village Association (RVA) Ltd is to assist its members sustain and grow the retirement villages industry nationally and in every state in Australia. Our stakeholders – retirement village operators, managers, owners, developers, investors and industry specialists – face challenging times. Many of those challenges are linked to economic cycles over which we have little control. However, there are early signs of an imminent recovery that should benefit the industry. But some of the challenges that are stymieing growth and increased investment in our industry, and perhaps also impeding best practice and excellence, are a direct result of the myriad of laws and regulations that regulate the retirement villages industry. For members with operations across a number of jurisdictions, the differences and nuances of the various legislative regimes are sometimes difficult to understand. Infringements can be costly. But even for those with operations only in one state or territory, the sustainability of their operations depend on knowing the law and the parameters its sets. Minter Ellison’s Australian and New Zealand Retirement Villages Legislation Compendium is the first publication of its kind in Australia. It is thought leadership at its best and will prove an invaluable resource for RVA members. By drawing on the knowledge and experience of its team of specialist lawyers across every Australian state and territory and New Zealand, Minter Ellison has produced a quick reference guide to key aspects of the legislation regulating retirement villages. The compendium continues Minter Ellison’s long-standing commitment to, and support for, our industry. And it will be a useful tool for the RVA as we continue to advocate local, state and federal governments to ensure the best legislative outcomes for the retirement villages industry. The writing and production of the Australian and New Zealand Retirement Villages Legislation Compendium has been a huge task. The RVA commends Minter Ellison for its initiative and is pleased to endorse this publication. The RVA believes it will add enormous value to villages across Australiasia and promote great living environments for older Australians through enhanced understanding of legislation. Andrew Giles Chief Executive Officer Retirement Village Association (RVA) Ltd
6 MINTER ELLISON – Australian and New Zealand Retirement Villages Legislation Compendium – 2009 Contents 1 Retirement villages legislation – current legislation, key amending legislation, former legislation, administration and key bodies 8 2 Relationships with other legislation – strata title, residential tenancies, fair trading, aged care 12 3 Application of the retirement villages legislation 16 4 Retirement village and retirement village scheme – definitions, registration, exemptions, de-registration 18 5 Resident – definition, important categories of resident, age restrictions 26 6 Scheme operator – definition, restrictions on who can be an operator 30 7 Residence contract – definition, mandatory content, pre-contracting and post-contracting obligations, resident’s rights of access to contract documents, consequences of inconsistency with RV Act, costs of preparation 32 8 Pre-contract disclosure – required form and content, consequences of inconsistencies, prospective resident’s rights of access to information, inaccurate or misleading disclosure 42 9 Cooling-off and settling-in – cooling-off period, resident’s right to rescind, consequences of rescission, disclosure obligations , settling-in period in NSW and SA 50 10 Ingoing contribution – definition, deposits, holding of deposits and ingoing contributions in trust 56 11 General services – definition, general services charges/recurrent charges, budgeting for charges, increasing charges, variations in services and new services 60 12 Personal/optional services – definition, ceasing of charges 72 13 Maintenance and repair of village capital items – responsibility for costs, mandatory funds and budgeting for maintenance costs, disclosure and reporting requirements 74 14 Replacement of village capital items – responsibility for costs, mandatory funds and budgeting for replacement costs, disclosure and reporting requirements 80 15 Capital improvement – responsibility for costs, residents’ rights to require improvements 86 16 Financial accounts and statements – quarterly and annual accounts, auditing of accounts, residents’ rights to receive accounts 90 17 Village insurance – obligation to insure, type and extent of insurance, insurance excesses, funding insurance costs 96 18 Village rules and by-laws – obligations on operator to make rules, what the rules may regulate, who must comply with rules, the process for making, changing or revoking rules, rules that are inconsistent with a residence contract or the RV Act 98 19 Residents committee – residents’ right to establish a residents committee, members of residents committee, residents committee’s function, residents committee’s powers, operator’s attendance at residents committee meetings 102 20 Residents meetings – operator’s obligation to hold annual meeting, other residents meetings, notice requirements, conduct of meetings, simultaneous meetings, operator’s obligation to answer questions, voting rights and procedures, requirements for effecting special resolutions, meeting with proposed new village operator 106 21 Other rights and obligations about village management and operation – restrictions on operator acting as attorney for a resident, right of certain non-residents to reside or become residents, letting or subletting by a resident, restrictions on operator’s access to a resident’s premises, operator’s obligations about safety, restrictions on advertising, other general rights of residents 120 22 Enforcing a residence contract – persons against whom a residence contract may be enforced, persons from whom an exit entitlement may be recovered 126
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