Retirement villages: Section 14A Regulations supplementary information
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The main areas for which amendments to the RV Regulations are proposed are identified below.
These are cross-referenced to the relevant provisions of the RV regulations and recommendations in the final report. As a number of provisions, currently in Division 4 of the Fair Trading (Retirement Villages Interim Code) Regulations 2014 (Interim Code), are being moved to the RV regulations, cross-references to the Interim Code provisions have also been included.
Areas of proposed amendments
Clauses in the Interim Code that are moving to the 14A Regulations
The clauses in Division 4 of the Interim Code that are moving to the 14A regulations include:
- the requirements in clause 2.5 relating to eligibility and accessibility of aged care facilities operated by the administering body (regulation 7B, Table, Item 1) (Recommendation 4);
- the requirements in clause 3.1 by listing these as documents which must currently be provided under section 13 of the RV Act as
- pre-contractual disclosure documents and specifying the financial documents that must be provided, in terms of whether the village is already operating or not (regulation 6) (Recommendation 18);
- the requirements in clause 4.1 relating to the form of a residence contract and enhancing these to ensure that where relevant residence contracts use words and phrases that are consistent with the meaning of words and phrases used in retirement villages legislation regulation 7A) (Recommendation 17);
- the requirements in clause 4.2 relating to the type of occupancy conferred in the residential premises (regulation 7B, Table, Items 7 and 8),
- the requirements in clause 4.2(c) relating to the length of time the resident is entitled to occupy the residential premises in the retirement village (regulation 7B, Table, Item 10);
- the requirements in clauses 4.3 and 4.4 relating to fixtures, chattels personal amenities and personal services that are in the residential premises or related to the residential premises (regulation 7B and Table, Items 12 and 13, regulation 7C and Table and regulation 7G and Table, Items 3-8, Items 1, 4 and 5) (Recommendations 2, 18, 58 - 60);
- the requirements in clauses 4.3(1) and (2) and 4.4 relating to communal amenities (Regulation 7D and Table), (Recommendations 2, 18, 21 and 57);
- the requirements in clause 4.5(1) relating to communal services (regulation 7E and Table) (Recommendations 2, 18 and 21)
- the requirements in clauses 4.6 and 4.7 relating to the payment of a premium, refund entitlements and recurrent charges (regulation 7F and Table, Items 1, 2, and 3) (Recommendation 21);
- the requirements in clause 4.8 regarding details of a reserve fund (regulations 7F and Table, Item 4 and 7G and Table, Item 3) (Recommendations 52 and 54);
- the requirements in clause 4.9 regarding transfer and relocation within a village (regulation 7B and Table, item 15) (Recommendation 70); and
- the requirements in clause 4.10 regarding fees payable on termination of a residence contract (regulation 7F and Table, Items 1 and 4) (Recommendation 78).
Provisions for urgent repairs that require a residence contract to include certain provisions setting out when a resident is entitled to arrange for urgent repairs to the residential premises (regulations 7G(1) and (3)) (Recommendation 56).
Linking to refurbishment requirements in the revised Code
Enhanced refurbishment requirements by:
- including a requirement for a residence contract to set out who is responsible for arranging for residential premises to be refurbished, who is responsible for paying the costs associated with carrying out the work and how any contribution to be made by the resident is to paid (regulation 7G(2) and Table, Item 2) (Recommendation 76); and
- prohibiting a residence contract containing provisions that require a resident to contribute in whole or part to the cost of maintenance, repairs, replacement or renovation of the residential premises that the resident occupies that would exceed or be inconsistent with the requirements relating to refurbishment set out in the Code (Regulation 7H(7)) (Recommendation 76).
Prohibited matters and provisions
The provisions in residence contracts that are proposed to be prohibited include provisions that:
- give an administering body or close associate of an administering body a power of attorney before during or after the resident occupies residential premises in the retirement village (Regulation 7H (1) to (4)) ((Recommendation 25);
- unreasonably seek to extend the timeframe of a former resident’s liability for recurrent charges beyond those provided in RV Regulations by using the definition of “permanently vacated” in section 23 of the RV Act to:
- require a resident to give more than 30 days notice of an intention to terminate the residence contract or permanently vacate the residential premises that the resident occupies (Regulation 7H(5)) (Regulation 73); or
- provide for residential premises to be permanently vacated other than in the circumstances set out in the definition of permanently vacated in section 23 of the Act (Regulation 7H(6)) (Recommendation 73).
Statements and notes to be included in residence contracts
Particular provisions in the residence contract will also be required to reference certain statements and notes on important legal matters that a prospective resident needs to be aware of or that a resident needs to know.
The statements and notes are referenced in Item 3 of the Table in regulation 7B and some of the notes are also referenced in a number of other tables throughout the regulations. The specified states and notes are listed in Schedule 2 to the Regulations and relate to the requirement:
- to include a statement on terms of access to aged care and community care services (clause 1 of Schedule 2);
- to include a statement recommending that a prospective resident obtain legal and financial advice (clause 1 of Schedule 2); and
- for a residence contract to include a notes section which as a minimum must include the notes listed in clause 2 of Schedule 2 to the Regulations. The notes relate to:
- SAT’s jurisdiction in Part 4 of the RV Act;
- section 23 of the RV Act and regulations to reference limiting the liability of certain residents to pay recurrent charges after permanently vacating residential premises in the retirement village; and
- section 25 of the RV Act and regulations to reference matters in respect of which an administering body cannot demand or receive payments from a resident or former resident of the retirement village.
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