Retirement Villages Act 1999 – Proposed new residence ...



Retirement Villages Act 1999 Proposed new residence contract requirementsConsultation paper, April 2021Table of contents TOC \o "1-3" \h \z \u Introduction PAGEREF _Toc42612045 \h 3About the policy proposals PAGEREF _Toc42612046 \h 3Proposed commencement PAGEREF _Toc42612047 \h 4Consultation to date PAGEREF _Toc42612048 \h 4Your feedback about this paper PAGEREF _Toc42612049 \h 4Proposed additional prescribed content for residence contracts PAGEREF _Toc42612050 \h 4Proposed required terms for residence contracts PAGEREF _Toc42612055 \h 8Proposed prohibited terms for residence contracts PAGEREF _Toc42612057 \h 11Proposed approved form for residence contracts PAGEREF _Toc42612058 \h 22Issues arising from COVID-19 for residence contracts PAGEREF _Toc42612064 \h 47IntroductionRetirement village residence contracts are unlike other contracts consumers enter. They reflect a unique model of living that substantially differs from buying or renting residential property.Contracts not only cover the initial purchase of the right to reside from the scheme operator (operator) but also the ongoing relationship between the resident and the operator. Contracts can include many aspects of a resident's day-to-day activities within the village, and events that may occur years into the future. Because of the variety of circumstances that can emerge during years spent living in a village, contracts seek to account for circumstances that may not seem likely eventualities at the time the contact is considered or signed.As a result, residence contracts can be complex, lengthy and confusing for consumers. Consumers may not fully understand what they are buying into and can overlook critical matters.Contracts also differ from village to village and many villages offer multiple contract options.The length, complexity and differences between contracts can make obtaining legal advice costly due to the time it takes lawyers to navigate and advise on individual contracts.In response to these issues, the Retirement Villages Act 1999 (the Act) was amended by the Housing Legislation (Building Better Futures) Amendment Act 2017 (HLA Act) to include powers enabling more standardised residence contracts. The amendments, which commenced on 11 November 2019: retained the power to prescribe additional content for contracts through regulation under s.45(1)(t) of the Act;introduced the ability to prescribe through regulation required and prohibited terms for contracts under s.45(2); andintroduced the ability to create an approved form for contracts referred to in s.45(3)(a) under ss.227 and 227AA.About the policy proposals This paper proposes an approach for more standardised residence contracts using a combination of additional prescribed content, required terms and prohibited terms as well as an approved form that outlines a uniform structure for contracts through headings and tables. The approach is intended to create greater standardisation while allowing choice and innovation and seeks to:make contracts simpler, more transparent and easier to read provide a consistent layout that consumers can navigate and compareenshrine essential consumer rightseliminate unfair, unreasonable and unenforceable termsreduce disputes make getting legal advice easier. The proposed approach will be complemented by actions under the Queensland Housing Strategy 2017-2027 to improve dispute resolution, including how pre-contractual legal advice can better target matters that residents need to know. As part of this project, companion guides for lawyers and consumers about residence contracts may be developed. Where appropriate, proposals, especially in relation to prohibited terms, are consistent with interstate approaches and Queensland’s Manufactured Homes (Residential Parks) Act 2003.Proposed commencement The regulation and approved form are proposed to be developed by late 2021 with changes coming into effect approximately six months after the regulation and approved form are made. Consultation to date The proposals take into account feedback received during the review of the Act, a review of a sample of contracts and questionnaire feedback received from the Ministerial Housing Council Consultative Group regarding the implementation of Stage 2 and Stage 3 of the HLA Act reforms. Feedback from resident representatives and some legal stakeholders included a preference for simpler contracts which are easy to understand and greater clarity about tenure with limited ‘technical’ legal language. Resident and some legal stakeholders also indicated that contract clauses should be excluded if they could be misleading, provide operators with excessive control over residents, or if they unfairly limit operators’ liability.Feedback from industry stakeholders indicates that the Retirement Living Council’s National Guide to Creating Simple and Effective Retirement Living Contracts provides a framework for contracts. Feedback suggested terminology should be consistent and unambiguous and contracts should be structured to reflect the resident ‘journey’ (i.e. entry, living and exit arrangements). Industry stakeholders also indicated that contracts should not be unnecessarily limited in size and should include information to reflect specific features of an operators’ model, different tenure types and any special conditions. Both industry and resident stakeholders have indicated that contracts should not limit the flexibility of operators to offer a range of different models and financial arrangements.Your feedback about this paper This paper seeks your feedback. Each section of the paper poses questions, and other suggestions are welcomed. We encourage you to also reflect on any issues COVID-19 has highlighted for current and future residence contracts throughout the paper or at the COVID-19 section at the end. Proposed additional prescribed content for residence contractsCurrent prescribed content for residence contracts Section 45(1) of the Act and regulation 5 of the of the Retirement Villages Regulation 2018 outline a list of content items that a contract must include.Prescribed content under s.45(1)SectionItem45(1)(a) the right to rescind the contract under s.48 before the cooling-off period ends45(1)(b)if the cooling-off period starts on the day the residence contract is signed—the date the cooling-off period ends45(1)(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 contract45(1)(d)the ingoing contribution payable under the contract45(1)(e)the exit fee payable under the contract45(1)(f)the resident’s exit entitlement45(1)(g)the services charges45(1)(h)the amounts payable, and when the amounts are payable, by the resident for the maintenance reserve fund for the retirement village45(1)(i)the insurance for the retirement village, and insurance for which the resident is responsible45(1)(j)all conditions precedent to the resident’s right to reside in the retirement village45(1)(k)the resident’s right to resell the right to reside in the accommodation unit45(1)(l)the resident’s entitlement to audited and unaudited financial statements for the village45(1)(m)the dispute resolution process established under this Act45(1)(n)the statutory charge, if relevant to the resident’s title to, or interest in, the accommodation unit45(1)(o)the resident’s and scheme operator’s rights to terminate the contract45(1)(p)the funds the scheme operator is required to keep45(1)(q)the retirement village facilities45(1)(r)the retirement village land45(1)(s)whether the resident and the scheme operator are to share any capital gain or capital loss after the resident’s right to reside in the unit is terminated and, if so, how it is to be shared45(1)(t)another matter prescribed by regulationPrescribed content under reg 5, Retirement Villages Regulation 2018SectionItem5(a)the name of the scheme and of the scheme operator and the scheme operator’s address for service of documents5(b) the name and address of the trustee who holds the amount of ingoing contribution during the cooling-off period5(c)how the resident may rescind the residence contract under the Act by giving written notice to the scheme operator5(d)the services to be supplied to the resident, including—services funded from the general services charge andservices funded from the personal services charge andservices, if any, available on a fee-for-service basis5(e)if a trustee mentioned in s.46(1) of the Act must hold an amount of ingoing contribution until a day when a condition precedent mentioned in s.46(3)(a) of the Act is fulfilled—the condition precedentAdditional prescribed content for residence contractsIt is proposed that additional content be added to this list, using the head of power in s.45(1)(t) which allows for additional matters to be prescribed by regulation. Additional proposed items will:reflect recent reforms to the Act, and respond to feedback about additional critical matters that should be outlined in the contract, to prevent misunderstandings.While many contracts contain much of the proposed additional content as a matter of good practice, the additional prescribed content items will ensure consistency and transparency about these matters for all contracts and help prevent disputes.The additional prescribed content is intended to apply to new contracts entered after commencement of the regulation.The table below details the proposed additional prescribed content and the rationale for each item.Table of proposed additional prescribed content for residence contracts Critical items necessary to reflect recent reformsItem 1Reinstatement of the unitDescription Reinstatement of the unitRationaleReinstatement requirements have recently been amended. Many contracts include this information as a matter of good practice. Inclusion in all contracts will ensure consistency. It will help prospective residents understand the total cost of buying into a village, clarify rights and responsibilities and prevent disputes.Item 2Operator renovation of the unitDescriptionInformation about proposed renovation work by an operator, including what renovation work will be undertaken, how the costs are shared between the operator and resident, the timeframe for completion of renovation work and the process if there is a dispute about renovation. RationaleAmendments about operator renovations were made recently by the HLA Act. Many contracts include this information as a matter of good practice. Prescribing this content for all contracts will ensure consistency. It will clarify rights and responsibilities and prevent disputes.Item 3Services funded from the maintenance reserve fund contributionDescriptionInformation about what services the maintenance reserve fund pays for.RationaleRegulation 5(d)(i) requires information about services funded from the general services charge be included in the contract. This reflects the position prior to the Act being amended when the maintenance reserve fund contribution formed part of the general services charge. Now that the maintenance reserve fund contribution is separate from the general services charge, this item will ensure that services the maintenance reserve fund pays for are outlined in the contract.Item 4Operator buyback of freehold units, if relevant to the resident’s title or interest in the unitDescription Requirements under the Act for operator buyback of freehold units.RationaleInformation about operator buyback will ensure contracts for freehold units reflect recent amendments. It will ensure prospective owners of freehold units have similar information that other tenure types get under s.45(1)(f) – which requires contracts to include information about the resident exit entitlement. Critical items that should be outlined from the outset of the relationship to prevent misunderstanding and disputesItem 5Tenure clarificationDescription Information about the type of tenure associated with the right to reside.RationaleFeedback indicates many residents do not understand the tenure associated with their unit. Clearly outlining the tenure in the contract ensures consistency with the village comparison and prospective costs documents.Item 6Responsibility for repair, maintenance and replacement of items in the unitDescriptionInformation about:who is responsible for repair, maintenance and replacement of items in the unit while the resident is living there, and when the operator is responsible for repair, maintenance and replacement of items - how the cost will be met.RationaleThere can be uncertainty about responsibility for repair, replacement and maintenance of energy hardware (e.g. solar panels), air conditioning units, hot water systems, and white goods (e.g. stoves, cooktops, dishwashers).Clarifying rights and responsibilities will help residents better understand the cost of buying into the village and prevent disputes.Item 7Other fees and chargesDescriptionInformation about:any other fees or charges (other than for general services, maintenance reserve fund and personal services) the resident may be liable for or must pay under the contractwhat the resident receives in return for paying the fee or chargehow and when the fee or charge is to be paid.RationaleThe Act requires the contract to outline the major fees and charges payable. However, some villages require residents to pay membership fees, administrative fees or fees and charges to third parties (such as for an emergency call system). Also, some operators now offer additional services such as user-pays health and well-being programs. Transparent consistent information in the contract about these fees and charges will help residents understand the cost of buying into the village.Item 8The fees, charges and costs payable by the former resident and how long these are payableDescriptionInformation about all fees, charges and costs the resident must continue to pay after they leave.RationaleFees, charges and costs continuing after a resident leaves can be an unexpected expense. Including information in the contract about these will increase transparency and ensure residents understand the total cost of buying into the village. This will complement item 5.6 in the prospective costs document which outlines the time former residents must pay the general services charge, the maintenance reserve fund contribution and any personal service charges.Questions What are your views about the proposed additional prescribed content for residence contracts? Do you agree or disagree with prescribing these items?Are there any other matters that should be included as additional prescribed content? Are there unintended consequences that could result from the proposed additional prescribed content items?

Questions What are your views about the proposed additional prescribed content for residence contracts? Do you agree or disagree with prescribing these items?Are there any other matters that should be included as additional prescribed content? Are there unintended consequences that could result from the proposed additional prescribed content items?Proposed required terms for residence contractsOn 11 November 2019, s.45(2) of the Act commenced, which allows a regulation to prescribe required terms that must be included in a residence contract.Unlike the prescribed content for residence contracts under s.45(1), which states the type of information that must be included in the residence contract, required terms will specify the term in full, using standard wording.The proposed required terms intend to address issues highlighted in consultation feedback and review of a sample of residence contracts, which identified the need to ensure consistency about: behaviour standards outlined in ss.135 and 136 of the Actthe dispute resolution process under the Actrights and responsibilities of residents and the operator under the Act in the event of a redevelopment, transition to new operator or closure of the village changes to residence contracts.Contracts deal with these issues in different ways, with some outlining them clearly and some outlining them insufficiently or not at all. These matters have been the subject of misunderstandings between residents and operators and are potential triggers for resident stress. Such stress can be detrimental, negatively impacting the health and wellbeing of residents.Consistency in all resident contracts will help ensure clarity about these matters from the outset of the relationship and prevent disputes.The proposed required terms also acknowledge that the residence contract is a key document that residents often refer to, in order to understand the rights and responsibilities of parties, especially when issues arise while living in or leaving the retirement village.The table below details the proposed required terms and the rationale for each term.The proposed required terms are intended to apply to new contracts only, that are entered after the regulation comes into effect. Nothing will prevent operators and residents agreeing to their own additional terms about the issues covered by the required terms, provided these are not inconsistent with the required terms or the Act.Table of proposed required terms for residence contractsItem 1Behavioural standardsDescription A summary of the behavioural standards outlined in ss.135 and 136 of the Act.RationaleRecent stakeholder feedback has indicated that these standards should be a required term. Including such information will ensure the behavioural standards in the Act are made clear at the outset of the relationship and will help prevent disputes.This approach is broadly consistent with Victorian retirement village contracts and site agreements in Queensland under the Manufactured Homes (Residential Parks) Act 2003 .Item 2Dispute resolution processDescriptionA short summary of the dispute resolution process under the Act.RationaleThis will bring consistency to all contracts about the Act’s dispute resolution process which is prescribed content in s.45(1)(m), better ensuring that this critical information is made clear from the outset of the relationship between the resident and operator.Item 3Transition, closure and redevelopmentDescriptionShort sentences to the effect that: In the event the village is redeveloped, transitions to being run by a new operator or closes, the Act outlines the rights and responsibilities of residents and operators, including any requirements for a redevelopment plan, transition plan or closure plan. Part 5, Division 10 outlines the process for redevelopment of the village. Part 2, Division 5 outlines the process in the event of transition to a new operator. Part 2, Division 4 outlines the process in the event of the closure of the village.RationaleThe review indicated that when a retirement village closes, is redeveloped or is taken over by another operator, residents can experience significant stress, which can be detrimental to their health and wellbeing. This stress is compounded by the fact that many residents were not aware before buying into a retirement village that such events could rmation in contracts about these matters will support the recent improvements to precontractual information, highlighting these matters to prospective residents. In the event of a transition, closure or redevelopment it will also give residents an easy starting point to understand the mandated processes and the rights and obligations of residents and operators.Item 4Changes to residence contractsDescriptionStandard term stating that:A person is not obliged to agree to amend or terminate a residence contract and enter into a new contract because of changes in legislation (unless the legislation requires the amendment or termination) or for any other reason.RationaleThe review has indicated that residents can find being asked by operators to agree to an amended contract to be stressful, given the greater information available to operators, compared to residents. Managing the experience of stress for seniors is important given this can trigger adverse health events. This required term is consistent with item 17.1 of the New South Wales standard retirement village contract. It will alert residents from the outset that changes to the contract may occur and inform them of their rights should that happen.left0Questions What are you views about the proposed required terms for residence contracts? Do you agree or disagree with their inclusion?Item 2, Dispute resolution process, is prescribed content under s.45(1). Are there any other prescribed items that should be strengthened with required terms that provide standard wording?Are there any other required terms that you think are necessary?Are there any unintended consequences that could result from any of the proposed required terms?0Questions What are you views about the proposed required terms for residence contracts? Do you agree or disagree with their inclusion?Item 2, Dispute resolution process, is prescribed content under s.45(1). Are there any other prescribed items that should be strengthened with required terms that provide standard wording?Are there any other required terms that you think are necessary?Are there any unintended consequences that could result from any of the proposed required terms?Proposed prohibited terms for residence contractsOn 11 November 2019, s.45(2) commenced, which allows a regulation to prescribe prohibited terms for residence contracts. The proposed prohibited terms outlined below are intended to set a baseline for fairness and transparency for contracts. These proposed terms were identified in feedback, the Act review and the departmental review of a sample of contracts, as unfair because they:are inconsistent with the Actunreasonably limit residents’ privacy or autonomy, including over medical mattersunreasonably extend operator termination powersunreasonably impose financial obligations on residentsunreasonably limit residents’ general legal rights, redress options and legal obligations unreasonably limit operator liability. Where appropriate, the proposed prohibited terms are consistent with interstate retirement village prohibited terms and the prohibited site agreement special terms in the Manufactured Homes (Residential Parks) Regulation 2017. In developing the proposed prohibited terms, regard was also had to intersection between contract terms and the new Human Rights Act 2019.The table below details the proposed prohibited terms and the rationale for each prohibited term.The proposed prohibited terms will apply to existing and new contracts. Upon commencement of the regulation, any prohibited term in an existing or new contract will no longer have any effect: see s.45(4) of the Act. The penalty provision in s.45(3) prohibiting operators from entering into a contract that includes a prohibited term will only apply to new contracts entered after the regulation commences. Terms that are inconsistent with the ActItem 1Contracting out of the ActDescription Terms that restrict or exclude the operation of a provision of the Retirement Villages Act 1999 or its regulations or is otherwise inconsistent with the Retirement Villages Act 1999 or its regulations.RationaleStakeholder feedback has highlighted that some contracts contain terms inconsistent with the Act or that attempt to contract out of the Act. Examples include terms that: attempt to contract out of s.113 by stating that residents can decide by special resolution at an annual meeting not to audit the yearly financial statements are inconsistent with the reasonable privacy and autonomy of the resident under s.135 of the Act limit a resident’s right to terminate their residency under s.52 of the Act. Although such terms are void under s.45(4), prohibiting them will deter this inappropriate use and ensure fair and transparent relationships between operators and residents.Attaching a penalty provision to new contracts that contain such terms is consistent with the approach in s.23 of the Manufactured Homes (Residential Parks) Act 2003.Terms that limit residents’ privacy or autonomy over medical mattersItem 2Medical assessmentsDescription Terms that require the resident to submit to a medical assessment unless permitted by law. Terms, where the operator has, or purports to have, unilateral control over:the doctor or other person assessing the residentthe time of the assessment, or the place of the assessmentunless permitted by law.RationaleStakeholder feedback indicates that some contracts contain terms requiring residents to agree to submit to medical assessments. Some terms give the operator unilateral control over appointment of the doctor or person assessing the resident, the time and place of the assessment and the reason for the assessment. This raises issues about infringement of human rights and the need to ensure genuine consent before any particular medical assessment or treatment. Some contract terms may engage rights under s.17(c) of the Queensland Human Rights Act 2019 which gives people a right not to be subject to medical treatment without consent.Many villages also provide aged care services, blurring the lines between independent retirement living and aged care. This prohibited term does not seek to prohibit assessments by those acting in an aged care service provider capacity. Feedback is sought about why medical assessment terms are included in some contracts.It is noted that s.53(3)(c) gives operators the right to terminate a resident’s right to reside if the operator and a person who has assessed the resident’s care needs under s.22.4 of the Aged Care Act 1999 (Cth) reasonably believe that the resident’s type of accommodation is now unsuitable for the resident.? While medical assessments initiated by an operator do not by themselves meet the requirements of s.53(3)(c), they may fulfil one aspect of the requirements by providing the operator with grounds to form a reasonable belief that accommodation is unsuitable for the resident. It is noted that s.22.4 of the Aged Care Act 1999 (Cth) can be future focused and not just about the unsuitability of the person’s current accommodation, examining the person’s care needs and eligibility for specific types of aged care services (including home care).?Before an aged care assessment under the Age Care Act 1999 is conducted, the person’s consent must be given. Where they do not have capacity to consent, a substitute decision maker (such as an enduring power of attorney or guardian) must consent on the person’s behalf. Given medical assessment is an important step in a process which may enable the operator to exercise termination rights, terms depriving the resident of control over the person assessing them, and the time and the place of their assessment appear unfair and unreasonable. Related to this, a resident’s refusal to submit to a medical assessment initiated by the operator can trigger terms in some contracts giving operators a termination power outside of s.53. Also, some contracts deem resident refusal to consent to a medical assessment to be a ‘material breach’, allowing the operator to rely on the termination power in s.53(3)(a).?Issues relating to material breaches and extended termination powers for operators are examined further below in items 4 and 5.?? Item 3Terms that require resident health and other personal informationDescription Terms that require a resident to agree to provide an operator with information about their health or other personal information unless the operator outlines: why the information is requestedwho else the information will be provided to, and how the resident’s privacy will be maintained.RationaleSome contracts require residents to agree to give the operator access to information about their health as well as other personal information such as their next of kin, doctor and executors of their will. Operators may be subject to privacy legislation, but these obligations are not always reflected in contracts. Understanding how personal information will be used and ensuring privacy of this is important to residents.This prohibited term seeks to ensure transparency when a resident agrees to give their health and other personal information to the operator. Understanding why the information is required, who it will be given to, and how the resident’s privacy will be maintained, will help a prospective resident decide whether to agree to such a term. Terms that unreasonably extend scheme operator powers to terminate a residence contractItem 4Operator termination powersDescription Terms that specify the operator has grounds to terminate a resident’s right to reside, outside of those listed in s.53 of the Act.RationaleSection 53 outlines the grounds on which an operator may terminate a resident’s right to reside.Stakeholder feedback has highlighted that some contracts have terms granting operators termination grounds beyond s.53 and include the following as termination grounds:resident non-payment or late payment of chargesresident refusal to submit to a medical assessmentresident criminal behaviourresident absences for particular periods (such as 6 months) or if the unit is unoccupied for a period (such as 3 months)resident activity bringing the village into disrepute or behaviour determined by a committee of residents as warranting terminationa resident having a visitor stay in their unit without the prior consent of the operatora resident becoming bankrupt or making another arrangement or composition with their creditors a resident conducting themselves in a way as to materially impede village staff from doing their duties properly.While s.169 provides the resident with the right to challenge such terms by applying to the Queensland Civil and Administrative Tribunal (QCAT) for an order because they have been threatened with removal, these terms appear to be inconsistent with s.53 and are unfair and unreasonable grounds to remove a resident from their home.Item 5Material breachDescription Feedback is sought about whether a prohibited term about material breach should also set the parameters for a material breach of a residence contract to ensure better fairness and certainty. Terms that define the following as a material breach: resident non-payment or late payment of chargesresident refusal to submit to a medical assessment resident criminal behaviourresident absences for particular periods or the resident’s unit being unoccupied for particular periods resident activity bringing the village into disreputeresident behaviour determined by a committee of residents as warranting termination of the right to residea resident having a visitor stay in their unit without the prior consent of the operatora resident becoming bankrupt or making another other arrangement or composition with their creditors a resident conducting themselves in a way as to materially impede village staff from doing their duties properly.RationaleUnder s.53(3)(a) an operator may terminate a resident’s right to reside with 2 months’ notice if the resident has committed a material breach of the contract.“Material breach” does not have a fixed legal meaning and is not defined by the Act. The courts have said that a material breach is one that is ‘important’ or ‘significant’ in the context of the contract. Stakeholder feedback has highlighted that some contracts have terms that, instead of extending the operator termination powers in s.53 (as discussed in above in prohibited term item 4), identify specific resident actions as a “material breach” of contract.While s.169 provides the resident with the right to challenge any such term through applying to QCAT for an order because they have been threatened with removal, the above grounds are not fair or reasonable grounds to remove a resident from their home. Are parameters required for material breach in residence contracts? While the proposed prohibited terms help to define the parameters of material breach by focusing more on prohibiting specific instances from being characterised as a material breach, feedback is sought about:whether the parameters of material breach should be more broadly defined by a prohibited termwhat fair and certain parameters could be, and what the risks and benefits would be to more broadly defining parameters for material breach. One example of a parameter could be prohibited terms that define material breach beyond the following criteria: a) a breach of a residence contract term that is important or significant in the context of the contract and that is not capable of remedy, or b) a breach of a residence contract term that is important or significant in the context of the contract and that is capable of remedy but where the resident fails to remedy the breach within a reasonable timeframeThis broadly reflects the common law definition of material breach.Another example of a parameter could be:a breach of a term that goes to the root of the residence contract which deprives a party substantially of the whole benefit of the contract.This broadly reflects the common law definition of material breach at the time s.53(3)(a) was enacted. Another approach could be to prohibit terms that define material breach as particular resident behaviour where the resident behaviour can be remedied through the dispute resolution process in the Act.Rationale for prohibiting terms that respond to practices in residence contracts Resident non-payment or late payment of chargesGiven the substantial ingoing contribution a resident pays to live in the retirement village, relying on non-payment, particularly late payment of charges, appears to be an unfair means to remove a resident from their home. These matters constitute a retirement village dispute and can be pursued through the Act’s dispute resolution process. Resident refusal to submit to a medical assessmentIts noted that such terms are particularly unfair when the resident refusal relates to a medical assessment where the operator has unilateral control over the assessor, time and/or place of the assessment. Refusing to submit to a medical assessment generally appears to be an unfair ground for a resident to lose their home. While more recently, the increased provision of aged care services in retirement villages (through for example personal services) may require a greater focus on medical assessment, it is difficult to envisage a situation outside of a retirement village where a person refusing to submit to a medical assessment would be a justification for losing their home. Resident criminal behaviourIf a resident were to own their home outside of a retirement village, including in a body corporate situation, criminal behaviour would not be a ground for them to be removed from their home. It is acknowledged that many residents move into retirement villages so they can live in a safe and secure environment. However, the operator termination powers in the Act already give the operator the right to terminate for safety and security reasons. Sections 53(2)(a) and (b) allow an operator to terminate the resident’s right to reside with 14 days’ notice if a the resident has or is likely to intentionally or recklessly injure a person while the person is in the retirement village, seriously damage the resident’s accommodation unit or seriously damage the property of another person in the village. Also, “criminal behaviour” is a broad term that could potentially capture activity beyond a person being found guilty or sentenced by a court for a criminal act and could capture a person being charged with a criminal act where the criminality of the act has not been determined through due process. Criminal behaviour can capture behaviour that does not or is unlikely to endanger residents or their property. Resident absences for particular periods (such as 6 months) or the resident’s unit being unoccupied for particular periods (such as 3 months)Item 10 below, proposes to prohibit terms that restrict the time the resident may be absent from the village or require the operator’s permission before they leave the village. Resident absence or not occupying their unit for a time is not a fair reason for an operator to terminate. Outside of a retirement village, a person is free to leave their home unoccupied.Where the unit has been abandoned, an operator has the power under s.53(3)(b) to terminate (with 2 months’ notice) a resident’s right to reside, when the operator reasonably believes the right to reside has been abandoned.Resident activity bringing the retirement village into disreputeIt is acknowledged that this can be a difficult issue for operators and residents. Activity that negatively impacts the reputation of the village can negatively impact the market value of units and sale timeframes. However, outside of a retirement village, for example where a property owned under a group title is bought into disrepute by an occupant, such behaviour does not result in the owner losing their home. In some cases, such behaviour may be addressed by the behavioural standards or the village dispute resolution process. Resident behaviour determined by a committee of residents as warranting termination of the residence contractThis ground appears to have a very broad scope, relies on the views of the residents on the committee and has no safeguards to ensure fairness and due process. While it is acknowledged that behaviour of a resident can adversely impact other residents and the operator, in a shared living situation outside of a retirement village (for example in a group title scheme), this would not result in the owner losing their home.In some cases, such behaviour may be addressed by the behavioural standards or the village dispute resolution process. A resident having a visitor stay in their unit without the prior consent of the scheme operatorOutside of a retirement village, a person would not lose their home if they had a visitor stay with them. Problems caused by long-stay visitors could be remedied through the dispute resolution process in the Act. A resident becoming bankrupt or making another arrangement or composition with their creditors Outside of a retirement village, becoming bankrupt or making another arrangement or composition with a creditor is not grounds to lose your home. Feedback is sought why this is currently included in some contracts as a material breach.A resident conducting themselves in a way as to materially impede retirement village staff from doing their duties properlySuch behaviour may be captured by the behavioural standards or the retirement village dispute resolution process. In cases where the behaviour is dangerous, ss.53(2)(a) and (b) allow an operator to terminate the resident’s right to reside with 14 days’ notice if the resident has injured or is likely to intentionally or recklessly injure a person while the person is in the village, seriously damage the resident’s accommodation unit or seriously damage the property of another person in the village.Terms that unreasonably impose financial obligations on residentsItem 6Particular chargesDescription Terms that require the resident to be charged individually for legal, accounting or other services incurred by the operator in corresponding with the resident (or a person acting on their behalf) or in enforcing the contract, other than costs allowed for under the Act.RationaleSuch terms are the operator’s expenses and it would be unfair to require a resident to pay these costs. Prohibiting such terms is consistent with the approach in New South Wales and Victoria. Item 7Fees or charges that will never reduceDescription Terms that state that a service fee or other fee or charge will never be reduced.RationaleSuch terms are unfair because they deprive residents of lower prices that may be enjoyed in other parts of the community. For example, general services charges may be calculated in a manner that results in a fee reduction, which a resident would then not be able to benefit from.These terms are prohibited by the Manufactured Homes (Residential Parks) Regulation 2017 and by retail shop lease legislation.Item 8How capital gain is describedDescription Terms that describe capital gain without qualifying in plain English all the deductions that will be made from the capital gain the resident is entitled to. RationaleSome contracts contain terms that state a resident will be entitled to a certain percentage of capital gain without qualifying that the exit fee and other exit costs will reduce the capital gain the resident receives through their exit entitlement. This can create a misleading impression for some residents who develop a false expectation that they will receive, for example the entire 50% capital gain amount when they exit. This measure will promote fairness and transparency and allow prospective residents to better understand what their financial position will be if they buy into the retirement village.Terms that limit residents’ privacy or autonomy over other personal or financial mattersItem 9Relocation of residentsDescription Terms that grant the operator the unilateral right to move or relocate a resident unless: the resident agrees to relocationrelocation is due to an emergency the unit is uninhabitablethe health and safety of the resident is at risk the relocation is part of an approved closure or redevelopment plan.RationaleRecent stakeholder feedback highlighted concerns about such terms. A contract term giving an operator unilateral power to relocate the resident without reasonable grounds appears to be unfair.Prohibiting such a term is consistent with the recent redevelopment reforms and the approach in Victoria.Item 10Resident’s absencesDescription Terms that restrict the time a resident may be absent from the village or require the operator’s permission before the resident leaves the retirement village.RationaleLimiting the time the resident can be absent from their home in the village or requiring operator permission before a resident can leave the village appear unfair, especially given these restrictions do not apply outside a retirement village if a person owns or rents residential property. Such terms may be inconsistent with a resident’s right to autonomy.Even without the power to limit the period of a resident’s absence, operators still have the right under s.53(3)(b) to terminate (with 2 months’ notice) a resident’s right to reside if the operator reasonably believes the resident has abandoned their right to reside in the village.Prohibiting such terms is broadly consistent with the approach in New South Wales and Victoria. Item 11WillsDescription Terms that require a resident to have a will or to advise the operator of the location of any will.RationaleOutside of a retirement village, a person is free to choose whether to create a will and is not required to disclose the location of their will unless they choose to. Such terms may impact on the privacy and autonomy of a resident. Such terms may be considered inconsistent with s.25(a) of the Human Rights Act 2019 that states a person has a right not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with.Prohibiting such terms is consistent with the approach in New South Wales and Victoria.Item 12InsuranceDescription Terms that require residents to take out forms of insurance, other than: those required by lawthird party insurance for a resident’s motorised wheelchairworkers compensation insurance for claims brought by any employee or contractor engaged by the resident to carry out work or provide services in the unit.RationaleThe review indicated that some contracts may contain terms that require residents to take out or agree to take out types of insurance including contents insurance and health insurance.While it may be reasonable to require residents to have third party insurance for a resident’s motorised wheelchair and insurance for workers compensation claims brought by any employee or contractor engaged by a resident to carry out work or provide services in the unit, requiring other forms of insurance appears unfair and unreasonable as it imposes expenses on residents. For example, outside of a retirement village, a person has a choice whether to take out and pay for contents or health insurance. This approach is broadly consistent with the approach in New South Wales and Victoria.Item 13Third party service providersDescription Terms that: allow the operator to refuse entry to a service provider engaged by the resident, or requires a resident to provide information to the operator about a service engaged by the resident.RationaleSuch terms appear to unreasonably interfere with a resident’s privacy and autonomy over their personal or other affairs and appear to be inconsistent with ss.135(2)(a) and (d). Also, such terms may have implications for residents engaging service providers for medical or personal care services. The Manufactured Homes (Residential Parks) Regulation 2017 prohibits site agreement special terms from park owners unreasonably refusing access. Also, s.87A of the Manufactured Homes (Residential Parks) Act 2003 prohibits park owners from restricting persons providing or intending to provide health or community services to the home owner.Terms that unreasonably limit a resident’s legal rights, redress options or legal obligationsItem 14Complying with lawDescription Terms that require a resident to obtain permission from the operator before complying with a requirement under a law.RationaleStakeholder feedback highlighted issues about such terms which may unreasonably infringe upon the legal rights and obligations of residents. A term of this nature is prohibited under the Manufactured Homes (Residential Parks) Regulation 2017.Item 15Excluding effects of statutes that may come into forceDescription Terms that purport to exclude legislation from affecting the residence contract, unless the legislation provides that it may be excluded.RationaleSome contract terms may seek unreasonably to limit residents’ legal rights under laws coming into force after the execution of the contract. Prohibiting such terms is consistent with the approach in New South Wales. A similar site agreement special term is prohibited under the Manufactured Homes (Residential Parks) Regulation 2017.Item 16Complaints by a residentDescription Terms that limit a resident’s right to make a complaint to the operator or a relevant authority.RationaleSuch contract terms may limit residents’ legal rights or ability to seek redress. A term where a resident agrees to not complain about dust and noise relating to redevelopment is an example of such a term. Terms that unreasonably limit scheme operator liabilityItem 17Indemnity for operator’s lossesDescription Terms that require a resident to indemnify an operator (and their employees, agents, etc.) for loss not caused by the resident or their invitees.RationaleStakeholder feedback highlighted issues about such terms. These terms appear unreasonable and may take advantage of the greater information available to some operators, relative to prospective residents. A term of this nature is prohibited under the Manufactured Homes (Residential Parks) Regulation 2017.Item 18Operator’s liabilityDescription Terms that exclude an operator’s liability for any damage or injury suffered by a resident in the retirement village caused by the operator’s negligence or breach of a contractual duty of care.RationaleRecent stakeholder feedback highlighted issues about such terms. These terms appear unreasonable and may be seen to take unfair advantage of the greater information available to some operators, relative to prospective and current residents. Prohibiting such terms is consistent with the approach in New South Wales and Victoria. A similar site agreement special term is prohibited under the Manufactured Homes (Residential Parks) Regulation 2017.Item 19Resident indemnity for accidental damage or injuryDescription Terms requiring residents to indemnify operators for accidental damage or injury the resident causes in the retirement village, regardless of whether the incident is covered by village insurance.RationaleStakeholder feedback highlighted issues about such terms.Such terms should not apply where cover is available under the retirement village insurance, as it would allow the operator the option of suing the resident or making a claim under the village insurance, which could potentially give the insurer reason to deny a claim (as the operator has an alternative source of indemnity). As residents fund the retirement village insurance through the general services charge, they should receive the full benefit of its protection, even though they are not the insured party.Item 20‘Entire agreement’ and ‘representations’ termsDescription Terms to the effect that: the written residence contract represents the entire agreement between the parties, or that the resident did not receive or rely on any representations which are set out in other documents provided by the operator, or seek to exclude or limit an operator’s liability for promises or representations made by a village salesperson to a prospective resident. RationaleSuch contract terms appear to limit residents’ legal rights and protections. Under general principles of contract law, undertakings or promises made in association with the contract may be considered part of the contract under certain circumstances. Also, false or misleading representation provisions under s.86 of the Act and Australian Consumer Law may apply to oral or written representations made by the operator or a village salesperson.Prohibiting such terms will help to clarify that agreed terms which may not be included in the written contract, may nonetheless be binding on the parties.Prohibiting such terms is broadly consistent with the approach in New South Wales and Victoria.left0Questions What are your views about the proposed prohibited terms? Do you agree or disagree with the proposed prohibited terms?What are the reasons for including medical assessment terms (discussed in item 2) in residence contracts? How should the issues in item 5 about more broadly setting the parameters for material breach be appropriately addressed?For item 5, Material breach, feedback is sought about why some residence contracts need to classify the resident becoming bankrupt or making another arrangement or composition with a creditor as a material breach.Are there any other prohibited terms that you think are necessary?Are there any unintended consequences that could result from any of the proposed prohibited terms?0Questions What are your views about the proposed prohibited terms? Do you agree or disagree with the proposed prohibited terms?What are the reasons for including medical assessment terms (discussed in item 2) in residence contracts? How should the issues in item 5 about more broadly setting the parameters for material breach be appropriately addressed?For item 5, Material breach, feedback is sought about why some residence contracts need to classify the resident becoming bankrupt or making another arrangement or composition with a creditor as a material breach.Are there any other prohibited terms that you think are necessary?Are there any unintended consequences that could result from any of the proposed prohibited terms?Proposed approved form for residence contractsOn 11 November 2019, s.45(3)(a) of the Act commenced, which states that an operator must not enter into a residence contract that is not in an approved form. Sections 227 and 227AA provide a power for the approved form to be made.The proposed draft approved form is included below.Focus on headings, tables, and flexibility for logical ordering of information The proposed approved form introduces a uniform structure for residence contracts through standardising the order in which terms must be presented under subject-matter headings, some tables and the proposed required terms. It is intended that the approved form of contact will work as a template to improve consistency, clarity and transparency for prospective residents. This will make it easier for lawyers and others to quickly understand what is being offered under any contract, and facilitate easy comparison with other contacts. For example, all contractual terms outlining the payments a resident must make relating to moving into, living in and then leaving the village.Some stakeholders advise that a strict standard contract such as that adopted in New South Wales, can inadvertently result in complex and lengthy contracts and prevent the rights and responsibilities of residents and operators from being clearly outlined. For example, if a standard form contract specifies terms about common fees and charges, and the village provides additional services not contemplated by the standard contract, then the fees and charges for these may be forced into another part of the contract. As a result, the prospective resident needs to search several parts of the contract and attachments to see the complete picture of payments required by the village.The approved form is intended to be flexible and promote the logical ordering of information:Its headings and tables are intended to prompt parties to capture the prescribed content required under ss.45(1)(a)-(t) as well as several other matters requiring substantial compliance (discussed below).Unlike the approach in NSW, special terms agreed by the parties are not intended to be included at the back of the contract, rather are to be integrated into the body of the contract by being placed under the relevant key headings of:Introduction Reference table Conditions precedent to your right to reside Your cooling-off rights Payments Moving into the retirement village – general rights and obligations Living in the retirement village – general rights and obligations Leaving the retirement village – general rights and obligations Dispute Resolution Redevelopment, transition, closure of the retirement village Changes to this residence contractOther mattersDefinitions Attachments Signatures The approved form includes an “Other matters” section that is intended to contain only those special terms that do not fit into any of the key headings.To enable the residence contract to be set out in the most simple and clear manner possible, parties will only be bound to follow the sequential order of the key headings. Parties will be free to choose the sequential order of the s.45(1) prescribed content, required terms and special terms that sit under each key heading. The current numbering in the approved form has been provided as a general guide and parties are not bound to follow this numbering.Consistency with other approaches and separation of financial rights and obligations The approved form is intended to be consistent with the information format of the Retirement Villages Form 3 – Village Comparison Document and the Retirement Villages Form 4 - Prospective Costs Document. This means that the information will be set out in manner prospective residents are already familiar with through precontractual disclosure, making it easier for prospective residents to understand. The structure of the approved form is largely reflective of the simplified retirement village sample residence contract provided to the department by industry legal stakeholder MinterEllison lawyers. It is also broadly consistent with the Retirement Living Council’s National Guide to Creating Simple and Effective Retirement Living Contracts. It departs however from the Retirement Living Council approach, by having a separate ‘Payments’ section. The separate ’Payments’ sections outline the financial rights and obligations of the parties so that the prospective residents can look to one section of the contract to understand the total cost of buying into the village. Other items which the approved form deals with Some of the subheadings and tables in the approved form prompt parties for information that is not prescribed content under s.45(1) or proposed additional prescribed content including: 10. Items in your unit we have agreed to repair or replace before or when you move in 11. Renovations and other changes that you would like to make to your unit that you and we have agreed upon when entering this residence contract 15. Making renovations or other changes to your unit while living in the village 16. Pets17. Parking 18. Caravan storage 19. Operating a business from your unit 28. Approved redevelopment planThe approved form also contains terms that are not required terms where substantial compliance will instead be required:1.You should obtain advice 9. Entry Condition Report 15.1 Keep a record of any renovations or other changes to your unit we agree to 15.3 Renovations or changes for your disability needs 21. Exit Condition Report 24. Setting a resale value25. Updating the resale value 26. Our obligations to provide you with information about the resale process 27. Your rights to resell the right to reside30. A reminder about your statutory cooling-off rights As approved forms only require substantial compliance, strict compliance for these items will not be necessary. These items have been included in the approved form to clarify rights and responsibilities of parties and respond to issues where confusion and disputes have historically arisen. With respect to the term ’15.3 Renovations or changes for disability reasons’ it is noted that disability access is an increasing issue, particularly given the emerging intersection between aged care services, ageing in place and retirement villages. While many scheme operators comply with disability discrimination legislation and seek to ensure disability friendly units, there have been cases of scheme operators not complying. Through reiterating the current position under disability discrimination legislation, this term seeks to ensure a baseline of fairness and transparency about disability access issues.Who the approved form is intended to apply to The proposed approved form is intended to apply to new contracts entered once the approved form comes into effect. As outlined in s.227AA, an approved form is not required if there is no approved form at the time the contract is adopted, entered or otherwise used.Proposed draft approved form for residence contractsQueensland Retirement Village Residence Contract[Space for scheme operator logo]Retirement Village Residence Contract between[Insert name of operator]and[Insert name of resident/s:] Instructions for scheme operatorsThis approved form is intended to promote the logical ordering of information.To enable the residence contract to be set out in the most simple and clear manner possible, you are only bound to follow the sequential order of the key headings:Introduction Reference table Conditions precedent to your right to reside Your cooling-off rights Payments Moving into the retirement village - general rights and obligations Living in the retirement village – general rights and obligations Leaving the retirement village – general rights and obligations Dispute Resolution Redevelopment, transition, closure of the retirement village Changes to this residence contractOther mattersDefinitions Attachments Signatures Special terms agreed by the parties are to be integrated into the body of the contract and placed under the relevant key headings. Use “Other matters” for special terms that do not fit into the other key headings.You are free to choose the sequential order of the s.45(1) prescribed content, required terms and special terms that sit under each key heading and are not bound by the numbering in the form.Instructions for scheme operatorsThis approved form is intended to promote the logical ordering of information.To enable the residence contract to be set out in the most simple and clear manner possible, you are only bound to follow the sequential order of the key headings:Introduction Reference table Conditions precedent to your right to reside Your cooling-off rights Payments Moving into the retirement village - general rights and obligations Living in the retirement village – general rights and obligations Leaving the retirement village – general rights and obligations Dispute Resolution Redevelopment, transition, closure of the retirement village Changes to this residence contractOther mattersDefinitions Attachments Signatures Special terms agreed by the parties are to be integrated into the body of the contract and placed under the relevant key headings. Use “Other matters” for special terms that do not fit into the other key headings.You are free to choose the sequential order of the s.45(1) prescribed content, required terms and special terms that sit under each key heading and are not bound by the numbering in the form.Introduction You should obtain advice Before you sign this residence contract it is important that you fully understand its terms. We recommend that you obtain independent legal advice, financial advice and other advice you may consider helpful.Content of this residence contract This contract is divided into the following sections: Section ContentPage/sReference table A table with information that is specific to you and your unit Conditions precedent to your right to reside [delete if not applicable] This section outlines any conditions or events that must occur before this residence contract comes into effect Your cooling-off rights This section outlines how you can rescind your residence contract if you change your mind Payments The payments you and we must make relating to moving into the retirement village, living in the retirement village and leaving the retirement village Moving into the retirement village - general rights and obligations Your and our general rights and obligations related to when you move into the retirement village Living in the retirement village - general rights and obligationsYour and our general rights and obligations while you live in the retirement village Leaving the retirement village - general rights and obligationsYour and our general rights and obligations when you leave the retirement village Dispute resolution The process to resolve any dispute you or we might have with each other Redevelopment, transition, closure of the retirement village Your and our rights and obligations if the retirement village changes scheme operators, is redeveloped or closesChanges to this residence contract Your and our rights and obligations if this contract is amended after we enter it Other matters [delete if not applicable]Any matters in this residence contract that do not fall into the above categoriesDefinitions The meaning of terms used that are capitalised and Italicised in this residence contractAttachments Any attachments relating to this residence contractSignaturesThe place where you and we sign this residence contract Reference table Item Details Scheme operator Address EmailResident Resident 1Resident 2Retirement village Your unit Tenure of your right to resideYour unit occupation dateRetirement village land detailsItemDetailsReal property description[delete if not applicable] Statutory charge under the Retirement Villages Act 1999[delete if not applicable] Registered mortgage to:[delete if not applicable] Unregistered mortgage to: [delete if not applicable] Lease to (other than leases to residents)[delete if not applicable] Company charge to:[delete if not applicable] Licence to (other than licences to residents):[delete if not applicable] Easements to (other than easements to residents):Other endorsements [specify]Retirement village facilities Conditions precedent to your right to reside [delete if not applicable][insert heading] [insert subheading – delete if not applicable] Your cooling-off rights Your statutory cooling-off rights How you can rescind your residence contract during your statutory cooling-off period Payments Moving into the retirement village Payments you must make to us to become a resident Payment The amount you pay What is pays for When and how it is payable 1Ingoing contribution $[Include in this information what percentage of the resident’s ingoing contribution is a contribution to the capital replacement fund] [Describe how and when it is payable and complete the details asked for below]Your ingoing contribution must be held on trust by us [include the name and address of the trustee who is holding the ingoing contribution on trust during the cooling-off period and what date the trusteemust hold the amount in trust until. If the trustee must hold the amount in trust until the day of a condition precedent to the creation of the right to reside is fulfilled, specify the condition precedent]2[freehold units only - delete if not applicable] The purchase price of your unit$3[Delete if not applicable - insert other entry fees/ costs/charges by creating a new row for each fee/charge cost]$4[delete if not applicable - Advance payment of general services charge$[Specify the number of weeks/months of advance payment of general services charges]Total $Living in the retirement village The funds we must keep Ongoing payments you must make while living in the retirement village Payments you make to us Payment The amount you pay What it pays for When and how it is payable 1General services charge The current amount is $[ ] per [specify period] [if the amount will change specific that the amount will change and, also outline how the new amount will be calculated][List the items that this charge pays for]2Maintenance reserve fund contributionThe current amount is $[ ] per [specify period] [if the amount will change specify that the amount will change and, also outline how the new amount will be calculated][List the items that this charge pays for3[Freehold Only - delete if not applicable] Body corporate administrative fund feeThe current amount is $[ ] per [specify period] [if the amount will change specify that the amount will change and, also outline how the new amount will be calculated][List the items that this charge pays for]4[Freehold Only - delete if not applicable] Body corporate sinking fund contributionThe current amount is $[ ] per [specify period] [if the amount will change specify that the amount will change and, also outline how the new amount will be calculated][List the items that this charge pays for]5[delete if not applicable] Personal services charge The current amount is $[ ] per [specify period] [if the amount will change specify that the amount will change and, also outline how the new amount will be calculated]6 [Delete if not applicable - insert other ongoing fees/ costs/charges the resident pays the scheme operator separately for by creating a new row for each fee/charge cost]The current amount is $[ ] per [specify period] [if the amount will change specify that the amount will change and, also outline how the new amount will be calculated]Ongoing payments we require you to make to third parties while living in the retirement villagePayment The amount you pay What it pays for When and how it is payable 7[specify name of the third party and name of the cost/charge/fee]The current amount is $[if the amount will change specify that the amount will change and, also outline how the amount is calculated]Costs for repair, maintenance and replacement of items in your unitCarefully read Attachment 1 Costs for repair, maintenance and replacement of items in your unit. This describes, for the relevant items in your unit, who is responsible the repair, maintenance, and replacement of them.Insurance for the village that we manage Insurance that you are responsible for Leaving the retirement villageOnce you leave, how long you must continue to make the payments associated with living in the retirement village (outlined in item [insert relevant item number] - Ongoing payments you must make while living in the retirement village)Payment How long you must pay the cost or charge once you leave 1General services charge 2Maintenance reserve fund contribution 3[Freehold Only - delete if not applicable] Body corporate administrative fund fee4[Freehold Only - delete if not applicable] Body corporate sinking fund contribution5[delete if not applicable] Personal services charge 6[Outline any ongoing costs not included in general services charge or personal services charge that the resident must pay the scheme operator outlined in 7.2 - by creating a new row for each fee/charge cost]7[Outline any ongoing costs not included in general services charge or personal services charge which the scheme operator requires the resident to pay a third party for included in item 7.2 - by creating a new row for each fee/charge cost] How we share capital gain and capital loss relating to your unit Your and our entitlements to capital gain and loss Your share of capital gain %Our share of capital gain %Your share of capital loss %Our share of capital loss %8.2.2 How capital gain and loss is calculated[include in how the capital gain and loss is calculated including the calculation/formula]Payments we must make to you Payment How the amount we pay is calculated What it pays forWhen and how it is payable 1Exit entitlement[delete if not applicable for freehold units] [If capital loss and costs are subtracted from the exit entitlement amount the resident receives, state so in the information here Also state whether capital gain is included in the exit entitlement amount the resident receives]2[Freehold units only - delete if not applicable] Your proceeds from the purchase price [If capital loss and costs are subtracted from the proceeds from the purchase price amount the resident receives, state so in the information here Also state whether capital gain is included in the proceeds from the purchase price amount the resident receives] [Include when the scheme operator must enter into and complete a contract to purchase the resident’s unit]Payments you must make to us when you leave Payment How the amount you pay is calculated What it pays forWhen and how it is payable 1[delete if resident does not pay an exit fee] Exit fee 2[delete if not applicable] Reinstatement of your unit (reinstatement processes further discussed at item [insert relevant item number in the “Leaving the retirement village - general rights and obligations” section] 3[delete if not applicable] Our renovation of your unit (renovation processes further discussed at item [insert relevant item number in the “Leaving the retirement village - general rights and obligations” section])[list what in the unit will be renovated]4 [delete if not applicable] Agreed marketing and advertising costs for the sale of your unit 5[delete if not applicable] Legal costs relating to sale of your unit 6[delete if not applicable] Valuers fee (if we cannot agree on a resale value for your unit]7[delete if not applicable] [insert other exit fees/ costs/charges by creating a new row for each fee/charge cost]Moving into the retirement village – general rights and obligations Entry Condition Report The Retirement Villages Act 1999 requires an Entry Condition Report be completed for your unit.??The Entry and Exit Condition Reports provide evidence of the condition of your unit at the beginning and end of you occupying it. These documents may be referred to as evidence if there is a dispute over the reinstatement of your unit at the time you permanently leave your unit.[delete if not applicable] Items in your unit we have agreed to repair or replace before or when you move in [delete if not applicable] Renovations or other changes that you would like to make to your unit that you and we have agreed upon when entering this residence contract Living in the retirement village – general rights and obligations Your behavioural obligationsPlaceholder for resident aspect of required term item 1 – Behavioural standards Summary of residents to respect rights of others in s.136Placeholder for resident aspect of required term item 1 – Behavioural standards Summary of residents to respect rights of others in s.136Our behavioural obligations Placeholder for scheme operator aspect of required term item 1 - Behavioural standards Summary of scheme operator to respect rights of residents in s.135Placeholder for scheme operator aspect of required term item 1 - Behavioural standards Summary of scheme operator to respect rights of residents in s.135Your right to audited and unaudited financial statements Making renovations or other changes to your unit while living in the village What the process is if you would like to make renovations or other changes to your unit while living in the village Keep a record of any renovations or other changes to the condition of your unit we agree to It is important for you to keep a copy of any agreement and a record of any renovations or other changes we agree to you making to your unit. These records can be attached to the Exit Condition Report (discussed at [specify clause]) and can be referred to if there is a dispute over reinstatement. Renovations or changes for your disability needsYou have rights under disability discrimination laws that enable you to make renovations or changes to your unit to suit your disability needs.?We generally cannot unreasonably refuse your request to make disability alterations if you pay for the alteration?and restore your unit to its condition prior to the alteration when you leave.You should raise with us any concerns you may have about your unit meeting your access or disability needs.Pets [Outline the pet policy in the retirement village. If there are pet restrictions, outline what the restrictions are and what type of pets these restrictions apply to.]Parking [Outline the arrangements in the retirement village for resident and visitor parking.]Caravan storage [Outline the arrangements in the retirement village for caravan storage.]Operating a business from your unit [Outline whether the resident can operate a business from their unit]Leaving the retirement village – general rights and obligations Terminating this residence contract Your rights to terminate this residence contract Our rights to terminate this residence contract Exit Condition Report The Retirement Villages Act 1999 requires an Exit Condition Report to be completed for your unit.??Entry and Exit Condition Reports provide evidence of the condition of your unit at the beginning and end of you occupying it. These documents may be referred to as evidence if there is a dispute over the reinstatement of your unit at the time you permanently leave your unit.Reinstatement of your unit when you leave [delete if the resident does not pay for reinstatement] What reinstatement is and how it is calculated and when and how it is payableRefer to item [insert relevant item number] of the table in [insert relevant item number] Payments you must make to us when you leave. Who carries out reinstatement and the timeframe for completion What happens if we disagree about a reinstatement matter [delete if there will be no operator renovation of the unit] Our renovation of your unit when you leave the retirement village What renovation is, who pays for it, what will be renovated [If the resident is responsible for sharing some renovation costs state “Refer to item [insert relevant item number] of the table in [insert relevant item number] Payments you must make to us when you leave”.][If the operator is responsible for all renovation costs state so here and give details about what renovation is, what will be renovated.]The timeframe for completion of our renovation What happens if we disagree about a matter arising from our renovation of your unit Setting a resale value Within 30?days after the termination date (the date your right to reside is terminated) you and we must agree on the unit’s resale value.If you and we cannot agree on the resale value, then we will need to get a valuation from a valuer within 14?days.The valuation is taken to be the agreed resale value of the right to reside for the unit.[delete if the resident is not responsible for paying or contributing the cost of the valuer] Item [insert relevant number] of the table in [insert relevant number] Payments you must make to us when you leave outlines the amount you must pay us for this valuer, if one is required. Updating the resale value If your place in the village has not been sold within 3?months of your termination date, and you have not been paid your exit entitlement, you and we are to reconsider the resale value of your right to reside at least every three months.If you and we cannot agree on the resale value, then we will need to obtain a valuation from a valuer within 14?days.The valuation is taken to be the agreed resale value of the right to reside for the accommodation unit.This does not apply if we are implementing an approved closure plan.[delete if the resident is not responsible for paying or contributing the cost of the valuer] Item [insert relevant number] of the table in [insert relevant number] Payments you must make to us when you leave outlines the amount you must pay us for this valuer, if one is required. Our obligations to provide you with information about the resale process If you have not been paid your exit entitlement and your place in the village remains unsold, we must promptly give you details of each offer to purchase your right to reside.You can also ask us to give you information about:all sales enquiries of your right to residewhat we are doing to promote the sale of your right to residethe following details about all other rights to reside for sale in the village:the nature of rights for sale the size of the units the selling prices of the rights how long the rights have been for sale.This does not apply if we are implementing an approved closure plan.Your rights to resell the right to reside If we have not sold your place in the village within 6 months and you have not been paid your exit entitlement, you can engage a real estate agent to act on your behalf.This does not apply if we are implementing an approved closure plan.Dispute resolutionPlaceholder for required term item 2 - Dispute resolution process A short summary of the dispute resolution process under the Act. Placeholder for required term item 2 - Dispute resolution process A short summary of the dispute resolution process under the Act. Redevelopment, transition or closure of the retirement village Placeholder for the redevelopment aspect of required terms item 3 - Transition, closure and redevelopment Short sentences to the effect:In the event the retirement village is redeveloped, transitions to being run by a new scheme operator or closes, the Act outlines the rights and responsibilities of residents and scheme operators, including any requirements for redevelopment plan, transition plan or closure plan.Part 5, Division 10 outlines the process in the event of redevelopment of the retirement village. Part 2, Division 5 outlines the process in the event of transition to a new scheme operator. Part 2, Division 4 outlines the process in the event of the closure of the retirement village. Placeholder for the redevelopment aspect of required terms item 3 - Transition, closure and redevelopment Short sentences to the effect:In the event the retirement village is redeveloped, transitions to being run by a new scheme operator or closes, the Act outlines the rights and responsibilities of residents and scheme operators, including any requirements for redevelopment plan, transition plan or closure plan.Part 5, Division 10 outlines the process in the event of redevelopment of the retirement village. Part 2, Division 5 outlines the process in the event of transition to a new scheme operator. Part 2, Division 4 outlines the process in the event of the closure of the retirement village. Approved redevelopment plan Is there currently an approved redevelopment plan in place? 266065477600 Yes 2724154065000 NoChanges to this residence contract Placeholder for required terms item 4 - changes to residence contractsA standard term stating that:a person is not obliged to agree to amend or terminate a residence contract and enter into a new contract because of changes in legislation (unless the legislation requires the amendment or termination) or for any other reasonPlaceholder for required terms item 4 - changes to residence contractsA standard term stating that:a person is not obliged to agree to amend or terminate a residence contract and enter into a new contract because of changes in legislation (unless the legislation requires the amendment or termination) or for any other reasonOther matters [delete if not applicable][insert Heading][insert Sub heading]Definitions Term Definition [term name][the term must be defined in a manner that is not inconsistent with the terminology and definitions in the Retirement Village Act 1999] Attachments Attachment number Description of Attachment 1Costs for repair, maintenance and replacement of items in your unit Signatures A reminder about your statutory cooling-off rightsIt is recommended that you obtain independent legal advice about your cooling-off rights under the Retirement Villages Act 1999. If you sign this residence contract, you will have a period of 14 days, after both parties have signed the contract, to withdraw from the residence contract. This is called a ‘cooling-off period’. If you decide to withdraw from the residence contract during the cooling-off period, you are entitled to immediately receive a full refund of any money you have paid to the scheme operator or stakeholder.[insert signatory details regarding this residence contract here] Attachment 1: Costs for repair, maintenance and replacement of items in your unitItem description Maintenance responsibility Repair responsibility Replacement responsibility 1[item name][specify “you” for the resident/s and “us” for the scheme operator”][if the scheme operator is responsible specify how the cost will be met e.g. by the scheme operator personally or through other means][specify “you” for the resident/s and “us” for the scheme operator”][if the scheme operator is responsible specify how the cost will be met e.g. by the scheme operator personally or through other means][specify “you” for the resident/s and “us” for the scheme operator”][if the scheme operator is responsible specify how the cost will be met e.g. by the scheme operator personally or through other means]Questions What are your views about the proposed approved form? We encourage stakeholders to fill out the approved form to see how it will work in practice.How can it be improved or what do you propose instead?To make the residence contract easy to read for residents, some language choices have been made. ‘Us and we’ is used for operators and ‘you’ and ‘your’ is used for resident/s. Is this approach appropriate?Does the proposed form prompt operators to capture the prescribed content currently under s.45(1), reg 5 and proposed additional content detail? Does the proposed approved form allow for flexibility in resident contracts? If not, how can it be made flexible enough?What are your views about the sequence of headings? Should the order be changed to ensure residence contracts are logical and simple? Are additional headings necessary to ensure logical sequencing for information? What are your views about separating out financial rights and responsibilities (in a ‘Payments’ section) from other rights and responsibilities? If you do not agree, what would ensure residents understand the total cost of buying into the village?Are the tables in the ‘Payments’ section appropriate? Will the tables allow for information regarding fees, charges and costs to be set out simply and succinctly?Is the approach of listing the items and outlining the relevant repair and maintenance responsibilities while the resident is living in the unit in an attachment appropriate? If not, what is required so residents understand their rights and responsibilities and those of the operator?The approved form proposes “Other matters” captures information that does not fall into any of the heading categories. What are your views about this approach? What type of information can you see going into “Other matters”?Under the proposed approach, the headings seek to give all residence contracts a uniform structure. Should parties be able to add additional headings? Questions What are your views about the proposed approved form? We encourage stakeholders to fill out the approved form to see how it will work in practice.How can it be improved or what do you propose instead?To make the residence contract easy to read for residents, some language choices have been made. ‘Us and we’ is used for operators and ‘you’ and ‘your’ is used for resident/s. Is this approach appropriate?Does the proposed form prompt operators to capture the prescribed content currently under s.45(1), reg 5 and proposed additional content detail? Does the proposed approved form allow for flexibility in resident contracts? If not, how can it be made flexible enough?What are your views about the sequence of headings? Should the order be changed to ensure residence contracts are logical and simple? Are additional headings necessary to ensure logical sequencing for information? What are your views about separating out financial rights and responsibilities (in a ‘Payments’ section) from other rights and responsibilities? If you do not agree, what would ensure residents understand the total cost of buying into the village?Are the tables in the ‘Payments’ section appropriate? Will the tables allow for information regarding fees, charges and costs to be set out simply and succinctly?Is the approach of listing the items and outlining the relevant repair and maintenance responsibilities while the resident is living in the unit in an attachment appropriate? If not, what is required so residents understand their rights and responsibilities and those of the operator?The approved form proposes “Other matters” captures information that does not fall into any of the heading categories. What are your views about this approach? What type of information can you see going into “Other matters”?Under the proposed approach, the headings seek to give all residence contracts a uniform structure. Should parties be able to add additional headings? Are there any other items that need to be added to the residence contract form? Should any of the items proposed as requiring substantial compliance be prescribed additional content under s.45(1)(t) or required terms?The form does not specifically address innovations such as trial periods or permitting a resident to move to part of the village providing aged care services. Is the form flexible enough to deal with such issues? Does the template cater for freehold arrangements? If not, how should the form be changed?Are there any unintended consequences that could result from the approved form or the way information is ordered in the approved form?Are there any other items that need to be added to the residence contract form? Should any of the items proposed as requiring substantial compliance be prescribed additional content under s.45(1)(t) or required terms?The form does not specifically address innovations such as trial periods or permitting a resident to move to part of the village providing aged care services. Is the form flexible enough to deal with such issues? Does the template cater for freehold arrangements? If not, how should the form be changed?Are there any unintended consequences that could result from the approved form or the way information is ordered in the approved form?Issues arising from COVID-19 for residence contractsCOVID-19 has represented a significant risk to the health, safety and wellbeing of all Queenslanders, particularly seniors. COVID-19 has resulted in retirement villages operating in different ways. Your feedback about any issues COVID-19 has highlighted for current and future residence contracts is welcomed so that any standardised residence contract reforms can be appropriately flexible to meet resident and industry needs now and into the future. ................
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