New Retirement Villages Regulations

Aged Care: 18 March 2019

Amendments to the Retirement Villages Act and the regulations made under that Act introduce new requirements for the form and content of residence contracts and a far more detailed set of disclosure requirements, including a requirement to provide residents with a detailed Factsheet and Disclosure Statement and access to certain additional information and documents on request.

These changes will take effect on 1 July 2014.

Prescribed form of contract and required and prohibited content.

The Retirement Villages Act has, for many years, included a power to make regulations with respect to the content of residence contracts, including matters that must, or must not, be included in such contracts and the form of such contracts.  

The Retirement Villages Amendment (Contractual Arrangements) Regulations 2013 introduce specific lists of:

• matters that must not be included in residence contracts (reg 8B);
• matters that must be included in residence contracts (reg 8C);
• specific (prescribed) terms which must be included (word for word) in residence contracts (reg 8E and schedule 5),

and a requirement that the format of residence contracts comply with the format fixed under the Regulations (reg 8F and schedule 6).

Factsheets

The Retirement Villages Amendment (Information Disclosure) Act 2013 introduced new provisions requiring that Factsheets (in the form determined by the Director of Consumer Affairs) be provided to residents before entering into a residence contract.

A "Factsheetmust be provided to:

• a "retired person(or person acting on their behalf) who requests a Factsheet (within 7 days after the request); and
• any retired person to whom "target promotional materialis given or sent. Targeted promotional material does not include general mail-outs or letter box drops but includes any material given or addressed personally to a retired person (or person acting on their behalf). The Factsheet must be given at the time the promotional material is given.

Failure to comply is an offence and carries a penalty.

This Act also amended the Retirement Villages Act so that a Factsheet became a document that must be provided to a resident at least 21 days before the resident enters into a residence contract.  

Failure to do so entitles a resident to rescind (terminate) the residence contract (even after the resident has settled and moved in).  

Factsheets do not need to be provided to a person who has previously been given a Factsheet unless the information in the Factsheet has changed.

The Retirement Villages Act was also amended to make it an offence to include a false or misleading statement in a Factsheet.

The content in the Factsheet must be presented "in a clear, concise and effective manner... including any information included as an attachment.

Disclosure Statement

Prior to the amendments, the Disclosure Statement to be provided to residents before entering into a residence contract required little more than confirmation that the Retirement Village Notice and Charge had been registered on the title to the village (and when).

The Retirement Villages Amendment (Records and Notices) Regulations 2013 introduce requirements for the provision of more detailed information including:

• details of the amounts payable upon entry to the village;
• details of ongoing costs payable;
• details of amounts payable when the resident leaves the village; and
• entitlements to the refund of any in-going contribution including estimates of the refundable amount (based on a 1, 2, 5 and 10 year stay).

The Disclosure Statement must be in the form determined by the Director of Consumer Affairs and will need to be prepared individually for each new resident.

Although the content and format of the Disclosure Statement has changed, the Act remains the same, requiring that the Disclosure Statement be provided to a resident at least 21 days before the resident executes a residence contract.  

As with the Factsheet, it is an offence to fail to provide the Disclosure Statement, or include false or misleading information in it, and a failure to provide the Disclosure Statement provides the resident with a right to rescind the residence contract.

Access to Additional Documents and Information

New provisions have been introduced into the Retirement Villages Act requiring that if a "retired person(or person acting on their behalf), requests it, they must be provided with access to certain "prescribed documentswithin seven days.

The prescribed documents include:

• a site plan of the village;
•     plans of any premises under construction within the village;
•     planning permissions for further development of the village;
• a copy of the statement and report provided to the last annual general meeting (under sections 34 and 38H of the Act);
• if there is a capital (sinking) fund, the balance at the end of the previous three financial years;
• an example of the contract that a prospective resident may be required to enter into; and
• the dispute resolution documents referred to in sections 38E and 38F of the Act.

It should be stressed that these documents need only be provided where a specific request is made, however, it is noted that the Factsheet must include a statement advising the potential resident of their right to request these documents.