RETIREMENT VILLAGES ACT 2012 - SECT 238 Payments to former occupants who were not registered interest
RETIREMENT VILLAGES ACT 2012 - SECT 238
Payments to former occupants who were not registered interest holders(1) This section applies to a former occupant of residential premises in a retirement village who is not, or was not, a registered interest holder in relation to the residential premises.
(2) The operator of a retirement village must make any refund of the ingoing contribution needed to be made to the former occupant under the village contract not later than the earliest of the following:
(a) the day for payment stated in the village contract;
(b) the day for payment agreed between the operator and former occupant;
(c) the day that is 14 days after the day the operator receives full payment under the residence contract of an incoming resident of the premises;
(d) the day that is 14 days after the day the operator enters into a residential tenancy agreement with an incoming tenant of the premises;
(e) the day that is 14 days after the day a person takes up residence in the premises with the operator's consent;
(f) if the ACAT ended the residence contract—the day that is 1 month after the day the contract ended;
(g) if the former occupant delivered up vacant possession of the premises to the operator after receiving notice of the operator's intention to apply to the ACAT for an order ending the residence contract—the day that is 1 month after the day vacant possession was delivered;
(h) the day that is 6 months after the day the former occupant otherwise delivered up vacant possession of the premises to the operator.
(3) The operator commits an offence if the operator does not comply with subsection (2).
Maximum penalty: 50 penalty units.
(4) An offence against subsection (2) is a strict liability offence.
(5) Any other payment dependent on the amount of the ingoing contribution of the incoming resident of the premises that is required, under a village contract, to be made to the former occupant must be paid to the former occupant within 14 days after the earlier of—
(a) the payment, under a village contract, of any money to the operator, by the incoming resident; or
(b) the incoming resident's taking up residence in the premises.
Note A contract may provide that the resident, when the resident permanently vacates residential premises in the village, is to receive a refund of a fixed amount of the resident's ingoing contribution plus a share of any capital gain (that is, any greater amount of ingoing contribution payable by the incoming resident compared with the ingoing contribution paid by the former occupant). The refund of the ingoing contribution must be paid by the time mentioned in s (2), while the share of capital gain (if any) must be paid by the time mentioned in s (5).
(6) If, in the operator's opinion, the operator will not be able to enter into a residence contract with another person in relation to the premises within the time required under subsection (2) (h), the operator may apply to the ACAT for 1 of the following orders on the grounds that compliance within the time required under subsection (2) (h) would cause undue hardship to the operator:
(a) an order extending the time allowed for payment under this section;
(b) an order allowing payment by instalments.
(7) In deciding an application made under subsection (6), the ACAT may—
(a) consider the hardship to be caused to the former occupant if an order of the kind set out in subsection (6) is made; and
(b) make an order of that kind; and
(c) if it considers it appropriate to do so, make a further order for the payment of interest at a rate decided by the ACAT.
(8) If a payment is not made to the former occupant within the time required by this section—
(a) the former occupant may apply to the ACAT for an order directing the operator to make the payment; and
(b) interest is payable, at the rate prescribed by regulation, on that unpaid amount on and from the day the amount becomes overdue.