New South Wales Consolidated Acts

RETIREMENT VILLAGES ACT 1999 - SECT 23

23 Deposits to be kept in trust

(1) This section does not apply to or in respect of an operator of a retirement village if the operator is:

(a) a body constituted or established by an Act, or

(b) a body constituted or established for any benevolent, philanthropic or patriotic purpose.

(2) The operator of a retirement village must ensure that any money paid to the operator:

(a) as a holding deposit, or

(b) as a deposit under a village contract,

is held in trust in accordance with this section.

Maximum penalty: 50 penalty units.

(3) The money may be held:

(a) in a legal practitioner’s trust account, or

(b) in the trust account of a person licensed as a real estate agent under the Property, Stock and Business Agents Act 2002 , or

(c) in a licensed conveyancer’s trust account, or

(d) by a trustee company (within the meaning of the Trustee Companies Act 1964 ), or

(e) in such other manner as the regulations may prescribe.

(4) Money paid to the operator as a holding deposit is to be held in trust until:

(a) the prospective resident enters into a residence contract with the operator (whether in relation to the premises concerned or to other premises in the same village or in another village), in which case the money may, if both parties so agree, be taken to form part of the deposit under the contract, or

(b) the operator is notified in writing that the prospective resident:

(i) does not intend to enter into such a contract, or

(ii) has died,

in which case the money is to be refunded in full (to the prospective resident or to the executor or administrator of the prospective resident’s estate, as the case may be) no later than 14 days after the operator receives the notification.

(5) If the operator of a retirement village does not make any refund required by subsection (4), the prospective resident concerned (or the executor or administrator of his or her estate) may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the repayment.

(6) Money paid to the operator as a deposit under a village contract is to be held in trust until final payment is made under the contract.

(7) Subsections (2) (b) and (6) do not apply in respect of a contract for the sale of residential premises if the contract provides for the manner in which the deposit is to be held.