Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered RegulationsSchedule 5 Modification of Act
(see s 60)
[5.1] New sections 503A to 503ZU
insert
503A Meaning of permanently vacated residential premises— s 14 (1)
(1) This section applies if, before the commencement day, a former occupant of a retirement village permanently left his or her residential premises in the retirement village.
(2) For section 14 (1) (Meaning of permanently vacated residential premises), the former occupant is taken to have permanently vacated the residential premises in the retirement village.
Note Permanently vacated , residential premises—
(a) see s 14; and
(b) for pt 10 (Matters relating to vacation of premises)—see s 207.
503B Former retirement villages that stopped being retirement villages before the commencement day—s 15A (3)
Section 15A (3) (Application to residents and operators of former retirement villages), definition of "former retirement village", includes a complex that stopped being a retirement village before the commencement day.
503C General inquiry document— s 23
(1) This section applies if, before the commencement day, a prospective resident of a retirement village—
(a) requests a copy of a general inquiry document; or
(b) expresses an interest in the village.
(2) Section 23 (General inquiry document) does not apply to the request or expression of interest.
503D Disclosure statement— s 24
(1) This section applies if, before the commencement day, a prospective resident of a retirement village—
(a) requests a copy of a disclosure statement; or
(b) expresses an interest in particular premises in the village.
(2) Section 24 (Disclosure statement) does not apply to the request or expression of interest.
503E Copies of certain documents to be made available— s 29 (1) (c)
For section 29 (1) (c) (Copies of certain documents to be made available)—
(a) a draft budget provided under the repealed code, section 14 (Resident input into budget) is taken to be a proposed annual budget; and
(b) a final budget developed under the repealed code, section 14 is taken to be an approved annual budget.
503F Resident to enter village contract— s 41 (1)
(1) This section applies to a residence contract, or service contract, that is an existing contract.
Note Existing contract —see s 500.
(2) The requirement in section 41 (1) (Resident to enter village contract) for a residence contract or service contract to be in writing does not apply to the contract.
503G Retirement village land to be registered— s 42 (3)
(1) This section applies to a person who, immediately before the commencement day, is the operator of a retirement village.
(2) Section 42 (3) (Retirement village land to be registered under Land Titles Act) does not apply to the person.
(3) However, the person must lodge a notice mentioned in section 42 (1) with the registrar-general not later than 3 months after the commencement day.
503H Inconsistency between village contract and disclosure statement— s 45
For section 45 (Inconsistency between village contract and disclosure statement), a statement provided under the repealed code, section 18 (Information to be provided by management to every prospective resident) is taken to be a disclosure statement.
503I Village contracts must be in writing— s 46
Section 46 (Village contracts must be in writing) does not apply to a village contract that is an existing contract.
503J Amendment or replacement of village contract— s 49
To remove any doubt, a resident is not obliged to agree to an amendment or replacement of the resident's village contract under section 49 (Amendment or replacement of village contract) only because of the commencement of this Act.
503K Rescission of village contract on grounds relating to disclosure statement— s 54
For section 54 (Rescission of village contract on grounds relating to disclosure statement), a statement provided under the repealed code, section 18 (Information to be provided by management to every prospective resident) is taken to be a disclosure statement.
503L Condition report for certain residential premises— s 59 (4)
(1) This section applies if, before the commencement day, the operator of a retirement village allowed a prospective resident to occupy residential premises in contravention of section 59 (1) (Condition report for certain residential premises).
(2) Section 59 (4) does not apply to the operator in relation to any alleged damage occurring to the premises during the prospective resident's occupancy of the premises before the commencement day.
503M Renovations and alteration of fixtures or fittings—s 63 (5) (a)
(1) Section 63 (Renovations and alteration of fixtures or fittings) does not apply to renovations or alterations of fixtures or fittings that were started, but not completed, before the commencement day.
(2) To remove any doubt, section 63 (5) (a) applies to a fixture or fitting that was added before the commencement day.
503N Settling-in period for residents—div 5.2 and s 71
(1) Division 5.2 (Settling-in period for residents) applies to a village contract that is an existing contract.
(2) To avoid any doubt, "end of the settling-in period", for a village contract that is an existing contract, has the same meaning as in section 71 (Meaning of end of the settling-in period—div 5.2).
503O Village rules—div 6.1
(1) This section applies if, immediately before the commencement day, a village rule was in force for a retirement village under the repealed code.
(2) The rule is, on the commencement day, taken to be a village rule made under division 6.1 (Village rules).
503P Operator not to demand power of attorney—s 98
(1) This section applies if, immediately before the commencement day, a power of attorney, by a resident or prospective resident of a village, in favour of a person mentioned in section 98 (1) (a) to (c) (Operator not to demand power of attorney) is in force.
(2) The power of attorney ends on the commencement day.
(3) Subsection (2) does not apply if the resident or prospective resident is a relative of the operator.
(4) This section has effect despite—
(a) the Powers of Attorney Act 2006
; and
(b) the terms of the instrument creating the power of attorney.
Note The Powers of Attorney Act 2006
, s 32 provides that an enduring power of attorney is not revoked even if the person who gave the power of attorney becomes a person with impaired decision-making capacity.
503Q Membership of Residents Committee—s 104
For section 104 (Membership of residents committee), any term of office that ended before the commencement day is to be disregarded.
503R Operator must hold annual management meeting—s 107
(1) This section applies if a financial year for a retirement village ends less than 2 months before the commencement day.
(2) Section 107 (Operator must hold annual management meeting) applies to the financial year for the retirement village.
Note The financial year for a retirement village is fixed under s 134.
503S Proxies—s 116
(1) This section applies to a proxy that is in force immediately before the commencement day.
(2) Section 116 (3), (4) and (6) (Proxies) and section 117 (1) (Certain limitations on proxies), do not apply to the casting of a vote by proxy.
(3) However, if the proxy is not sooner ended, the proxy ends at the end of the first full financial year for the retirement village after the commencement day.
503T Relative may ask to enter into residence contract—s 120 (1) (c)
To remove any doubt, the 6-month period mentioned in section 120 (1) (c) (Relative may ask to enter into residence contract) may start before the commencement day.
503U Resident may carry out urgent work—s 139
Section 139 (Resident may carry out urgent work) does not apply to capital maintenance or capital replacement carried out by a resident of a retirement village before the commencement day.
503V Sale of capital items to residents—s 146
(1) Except as provided by this section, section 146 (Sale of capital items to residents) does not apply to the sale of a capital item before the commencement day.
(2) A resident of a retirement village may, by notice in writing to the operator of the village, advise that this section applies to a stated capital item owned by the resident if—
(a) the item was purchased from the operator of the village on or after 4 March 2013; and
(b) but for the purchase of the item, it is an item for which the operator would be responsible.
(3) If a resident gives a notice under subsection (2) to an operator—
(a) ownership of the capital item mentioned in the notice is transferred to the operator; and
(b) the resident is entitled to receive a payment equal to the amount the resident paid for the item.
(4) A payment that a resident is entitled to receive under this section is required to be made at the same time as the operator is required to make a payment to the resident under whichever of the following provisions is relevant:
(a) section 75 (2) (Time for making of payments);
(b) section 235 (2) (Payments to former occupants who were registered interest holders);
(c) section 238 (2) (Payments to former occupants who were not registered interest holders).
(5) The operator of a retirement village may apply to the ACAT for (and the ACAT may make) an order, reducing the amount to which a resident is entitled under subsection (3) (b), having regard to the condition of the capital item concerned.
(6) An application made by an operator under subsection (5) may relate to more than one capital item or more than one notice under this section.
503W Amendment of recurrent charges—s 148 (2)
(1) This section applies to a village contract if—
(a) the contract is an existing contract; and
(b) the contract provides for any recurrent charges payable under the contract to be amended otherwise than according to a fixed formula; and
(c) recurrent charges payable under the contract were amended within the 12-month period immediately before the commencement day.
(2) Section 148 (2) (Amendment of recurrent charges) applies to the contract on and from the day the contract was last amended.
503X Residents' consent to spending—s 162 (9)
(1) Section 162 (9) (Residents' consent to spending) does not apply to the first proposed annual budget for a retirement village after the commencement day unless the recurrent charges payable by the residents have been varied under section 148 (1) (a).
(2) If, under subsection (1), section 162 (9) does not apply to the first proposed annual budget for a retirement village, section 159 (5) and (6) (Proposed annual budget) also does not apply to the budget.
503Y Auditing of accounts—s 168 (3) and (6)
Section 168 (3) and (6) (Auditing of accounts) does not apply to the quarterly accounts for a retirement village for a quarter that ends before the commencement day.
503Z Existing disputes—pt 8
(1) This section applies if—
(a) before the commencement day, a dispute resolution process (the existing dispute resolution process ) was started in relation to a dispute under an existing contract; and
(b) immediately before the commencement day, the existing dispute resolution process had not finished.
(2) The existing dispute resolution process continues to apply to the dispute.
503ZA Informal resolution of disputes—s 178
(1) This section applies if, immediately before the commencement day, a disputes committee under the repealed code, section 33 (Disputes committee) is in existence.
(2) The disputes committee is, on the commencement day, taken to be a mechanism established for attempting to resolve disputes mentioned in section 178 (Informal resolution of disputes).
503ZB Ending residence contracts—pt 9
(1) Subsection (2) applies if, immediately before the commencement day, a termination provision applies to an existing contract.
(2) On the commencement day, the termination provision ceases to apply to the existing contract and, instead, part 9 (Ending residence contracts) applies to the contract.
(3) Subsection (4) applies if, immediately before the commencement day, a termination clause is included in an existing contract.
(4) On the commencement day, the termination clause ceases to operate and, instead, part 9 (Ending residence contracts) applies to the contract.
(5) Any other reference in an existing contract or the repealed code to—
(a) a contract referee is, on the commencement day, taken to be a reference to the ACAT; and
(b) a procedure involving the ending of a residence contract, or the residence right under the contract, by a contract referee is, on the commencement day, taken to be a reference to the procedures mentioned in part 9.
(6) In this section—
"termination clause" means a provision that mentions a procedure involving the ending of a residence contract, or the residence right under the contract, by a contract referee.
"termination provision" means—
(a) a provision of the repealed code, part 5, division 3 (Termination by management); or
(b) any other provision of the repealed code that mentions a procedure involving the ending of a residence contract, or the residence right under the contract, by a contract referee.
503ZC Existing uncollected goods—div 9.8
(1) This section applies if—
(a) before the commencement day, an existing residence contract is ended and goods are left on the residential premises by a former occupant; and
(b) immediately before the commencement day, the goods have not been finally dealt with.
(2) Division 9.8 (Uncollected goods) applies to the goods as if the existing residence contract were a residence contract.
503ZD Meaning of permanently vacated residence—s 207
(1) This section applies if, before the commencement day, a former occupant of a retirement village permanently left his or her residential premises in the retirement village.
(2) For part 10 (Matters relating to vacation of premises), the former occupant is taken to have permanently vacated the residential premises on the commencement day.
Note Permanently vacated , residential premises—
(a) see s 14; and
(b) for pt 10 (Matters relating to vacation of premises)—see s 207.
503ZE Recurrent charges for general services—registered interest holders—s 210 (3) (a)
(1) This section applies if a former occupant of residential premises in a retirement village—
(a) is a registered interest holder in relation to the premises; and
(b) has vacated the premises before the commencement day; and
(c) was still liable to pay recurrent charges in relation to general services in relation to the premises immediately before the commencement day.
(2) Section 210 (3) (a) (Recurrent charges for general services—registered interest holders) applies to the former occupant as if the 42 days immediately after the former occupant permanently vacated the premises were 42 days after the commencement day.
503ZF Recurrent charges for general services—generally—s 211 (2) (e)
(1) This section applies if a former occupant of residential premises in a retirement village—
(a) is not a registered interest holder in relation to the premises; and
(b) has vacated the premises before the commencement day; and
(c) was still liable to pay recurrent charges in relation to general services in relation to the premises immediately before the commencement day.
(2) Section 211 (2) (e) (Recurrent charges for general services—generally) applies to the former occupant as if the day that is 42 days after the day the former occupant otherwise permanently vacated the premises were the earlier of the following days:
(a) the day that is 42 days after the commencement day; or
(b) the day that is 6 months after the former occupant permanently vacated the premises.
503ZG Meaning of departure fee —s 214 (1)
For section 214 (1) (Meaning of departure fee ), the definition of "departure fee" includes a deferred fee under the repealed code.
503ZH Meaning of departure fee —214 (1) (a)
(1) This section applies to a former occupant of residential premises in a retirement village if—
(a) the former occupant's residence contract is an existing residence contract; and
(b) the former occupant is not a registered interest holder in relation to the residential premises.
(2) For section 214 (1), definition of departure fee , the amount payable under paragraph (a) includes an amount payable under the contract by the former occupant that is calculated in relation to the period after the end of the former occupant's residence right as stated in section 503ZK (2) (Departure fees payable—not registered interest holders).
503ZI Departure fees payable—s 217
Section 217 (Departure fees payable) does not apply to a former occupant of residential premises in a retirement village if the former occupant's village contract is an existing contract.
Note The following sections about departure fees apply to a former occupant of residential premises in a retirement village if the former occupant's village contract is an existing contract:
• s 503ZJ (Departure fees payable—registered interest holders);
• s 503ZK (Departure fees payable—not registered interest holders );
• s 503ZL (Reduction or waiver of departure fee).
503ZJ Departure fees payable—registered interest holders
(1) This section applies to a former occupant of residential premises in a retirement village if—
(a) the former occupant's village contract is an existing contract; and
(b) the former occupant is a registered interest holder in relation to the residential premises.
(2) A departure fee is not payable to the extent that it is calculated in relation to a period after the earliest of the following days:
(a) the day when the operator of the retirement village enters into—
(i) a village contract with an incoming resident in relation to the residential premises; or
(ii) a residential tenancy agreement with an incoming tenant in relation to the residential premises;
(b) the day when a person takes up residence in the residential premises with the operator's consent;
(c) if the operator buys the residential premises from the former occupant—the day when contracts for the purchase are exchanged;
(d) if the former occupant is a registered long-term sublessee—
(i) if the ACAT terminated the residence contract—the day when the former occupant permanently vacated the residential premises; or
(ii) if the former occupant permanently vacated the residential premises after receiving notice of the operator's intention to apply to the ACAT for an order terminating the residence contract—the day when the former occupant permanently vacated the residential premises;
(e) if the operator and former occupant agree to a day—the day agreed.
(3) Despite anything else in this Act, subsection (2) does not affect a provision of a village contract that provides that the departure fee is not calculable in relation to a period occurring before a day mentioned in subsection (2).
503ZK Departure fees payable—not registered interest holders
(1) This section applies to a former occupant of residential premises in a retirement village if—
(a) the former occupant's village contract is an existing contract; and
(b) the former occupant is not a registered interest holder in relation to the residential premises.
(2) A departure fee may be calculated in relation to the period that ends on the earliest of the following days:
(a) the day when the operator of the retirement village enters into—
(i) a village contract with an incoming resident in relation to the residential premises; or
(ii) a residential tenancy agreement with an incoming tenant in relation to the residential premises;
(b) the day when a person takes up residence in the residential premises with the operator's consent;
(c) if the ACAT terminated the residence contract—the day when the former occupant permanently vacated the residential premises;
(d) if the former occupant permanently vacated the residential premises after receiving notice of the operator's intention to apply to the ACAT for an order terminating the residence contract—the day when the former occupant permanently vacated the residential premises;
(e) the day that is 6 months after the day the former occupant permanently vacated the residential premises;
(f) if the operator and former occupant agree to a day, the day agreed.
(3) Despite anything else in this Act, subsection (2) does not affect a provision of a village contract that provides that the departure fee is not calculable in relation to a period ending before a day mentioned in subsection (2).
503ZL Reduction or waiver of departure fee
(1) This section applies to a former occupant of residential premises in a retirement village if the former occupant's village contract is an existing contract.
(2) The ACAT may, on the application of the former occupant, make an order reducing or waiving the former occupant's liability for the part of the departure fee calculated in relation to a period after the former occupant has permanently vacated the residential premises.
(3) However, the ACAT may make an order under subsection (2) only if the ACAT is of the opinion that any delay in the operator's entering into a village contract with another person in relation to the premises is attributable to an action (including a failure to market or promote the premises) of the operator.
503ZM Condition of premises on ending of residence contract—s 219 (2)
(1) This section applies to a former occupant of residential premises in a retirement village if—
(a) the former occupant is not a registered interest holder in relation to the residential premises; and
(b) the former occupant's village contract is an existing contract; and
(c) the former occupant was not given a condition report when entering the existing contract.
(2) Section 219 (2) (Condition of premises on ending of residence contract) does not apply to the former occupant.
(3) The former occupant must leave the residential premises as nearly as possible in the same condition as the premises were in at the beginning of the residence contract excluding fair wear and tear and renovations or alterations to fixtures or fittings made with the consent of the operator of the village under section 63 (Renovations and alteration of fixtures or fittings).
(4) Section 219 (3) to (5) applies as if section 219 (2) were omitted and subsection (3) substituted.
503ZN No refurbishment required—s 220
Section 220 (No refurbishment required) does not apply to a former occupant of residential premises in a retirement village if the former occupant's residence contract was an existing residence contract.
Note Section 503ZO (Refurbishment under existing contract) applies to a former occupant of residential premises in a retirement village if the former occupant's residence contract is an existing contract.
503ZO Refurbishment under existing contract
(1) This section applies to a former occupant of residential premises in a retirement village if—
(a) the former occupant's residence contract was an existing residence contract; and
(b) the former occupant is required under the contract to pay for the cost of refurbishing the premises when the resident permanently vacates the premises.
(2) The operator of the retirement village commits an offence if—
(a) before starting the refurbishment—the operator does not give the former occupant a work schedule for the refurbishment together with at least 3 quotations of costs for carrying out the refurbishment; or
(b) the operator does not negotiate with the former occupant and attempt to agree on which quotation should be accepted; or
(c) if agreement cannot be reached—the operator does not allow the former occupant to get other quotations in an attempt to find a quotation that is acceptable to the operator and the former occupant; or
(d) the operator does not ensure that the former occupant receives a fully-itemised account for the carrying out of the refurbishment; or
(e) the operator accepts or demands a payment for the carrying out of the refurbishment before the refurbishment is complete.
Maximum penalty: 50 penalty units.
(3) If the operator and the former occupant cannot find a quotation that is acceptable to both of them, either of them may apply to the ACAT for an order directing acceptance of 1 of the quotations.
(4) Subsection (2) (a) to (c) does not apply if the former occupant agrees that the refurbishment is to be carried out by tradespeople who ordinarily carry out maintenance of the village.
(5) If the former occupant is required under the contract to pay a stated amount for the cost of refurbishment of the residential premises on permanently vacating the premises, the former occupant—
(a) need not pay more than the stated amount (regardless of the actual cost of the refurbishment); and
(b) if the actual cost of the refurbishment is less than the stated amount—need pay only the lesser amount.
503ZP Sale of premises—s 223 (4)
(1) This section applies if, immediately before the commencement day, an existing contract contains a condition mentioned in section 223 (4) (Sale of premises).
(2) The condition is void on and after the commencement day.
503ZQ Statements to former occupants who were registered interest holders—s 236 (2)
(1) This section applies if—
(a) the operator of a retirement village must give a former occupant of residential premises in a retirement village a statement under section 236 (2) (Statements to former occupants who were registered interest holders); and
(b) the former occupant must pay for the cost of refurbishment of the residential premises as mentioned in section 503ZO (1) (b) (Refurbishment under existing contract).
(2) The statement must, in addition to the matters mentioned in section 236 (2) (a) to (f)—
(a) set out the costs of the refurbishment; and
(b) show how the costs were calculated.
503ZR Statements to former occupants who were not registered interest holders—s 238A (2)
(1) This section applies if—
(a) the operator of a retirement village must give a former occupant of residential premises in a retirement village a statement under section 238A (2) (Statements to former occupants who were not registered interest holders); and
(b) the former occupant must pay for the cost of refurbishment of the residential premises as mentioned in section 503ZO (1) (b) (Refurbishment under existing contract).
(2) The statement must, in addition to the matters mentioned in section 238A (2) (a) to (f)—
(a) set out the costs of the refurbishment; and
(b) show how the costs were calculated.
503ZS Application of pt 11—s 241 (1)
For section 241 (1) (Application—pt 11), village contract includes an existing contract that was in force immediately before the commencement day.
503ZT Creation of charge—s 242 (1)
(1) This section applies if part 11 (Protection of ingoing contributions paid by residents other than registered interest holders) applies to a village contract that is an existing contract that was in force immediately before the commencement day.
Note Section 503ZS and s 241 deal with the application of pt 11.
(2) The charge under section 242 (1) (Creation of charge) is created over the land on the commencement day.
503ZU Costs of operator's legal advice or proceeding—s 260
(1) This section applies if—
(a) before the commencement day, a legal proceeding was started in relation to a retirement village, in which the operator and a resident of the village are parties; and
(b) immediately before the commencement day, the proceeding was not finally decided.
(2) The resident is not liable to pay any of the operator's costs in relation to the proceeding that are incurred after the commencement day.
(3) However, subsection (2) does not apply in relation to costs awarded in favour of the operator and against a resident of the retirement village in a legal proceeding.