New South Wales Consolidated Regulations

RETIREMENT VILLAGES REGULATION 2000 - SCHEDULE 3

SCHEDULE 3 – Matter to be included in village contracts

(Clause 12 (1))

Matter required to be included in village contracts

A village contract must specify the following:

(a) the name of the retirement village concerned,

(b) the address in the village of the resident’s residential premises,

(c) the full names of the parties to the contract,

(d) the signatures of the parties to the contract,

(e) the name and address of any operator of the village who is not a party to the contract,

(f) the name and address of the resident’s agent (if any) appointed under section 68 of the Act,

(g) the date or dates on which the disclosure statement and information under section 19 of the Act was provided to the resident (or a person on the resident’s behalf),

(h) the date on which the contract is made,

(i) if the operator is the other party to the contract:

(i) the name and address of the operator’s agent (if any),

(ii) the date on which the copy of the contract was provided to the resident (or a person on the resident’s behalf),

(iii) the amount of any ingoing contribution payable by the resident and the date by which it must be paid,

(iv) the amount of recurrent charges payable by the resident as at the date the contract is drafted,

(v) the date from which those charges become payable,

(vi) the date agreed as the date on which the resident is entitled to occupy the premises (subject to completion of construction, and not precluding an earlier date if an earlier date is subsequently agreed between the operator and the resident),

(j) a provision reflecting section 56 of the Act,

(k) in the case of a residence contract that also entitles the resident to the use of a garage, parking space or storeroom-details of the garage, parking space or storeroom concerned.

Headings and additional matter required to be included in village contracts

A village contract must also include the following headings (printed in bold) and comply with the following requirements in relation to the matter appearing below each heading:

The contract must explain the resident’s rights to rescind the contract free of any loss or penalty during the statutory cooling-off period. The contract must set out the length of the cooling-off period, the method by which the resident can rescind the contract and the time in which any money paid under the contract by the rescinding party is to be repaid. A residence contract must draw the resident’s attention to the fact that the cooling-off period is waived if the resident begins to live in the premises.

The contract must draw the resident’s attention to the existence of the Retirement Villages Act 1999 and the Retirement Villages Regulation 2000 . The contract must contain a statement to the effect that the contract is subject to the provisions of the Act and Regulation.

If an ingoing contribution is to be paid by instalments the contract must set out the terms and conditions under which it is to be paid.
The contract must specify whether interest is payable to the resident while the operator has use of the ingoing contribution.
If part or all of the ingoing contribution is to be non-refundable, the contract must clearly specify that fact.
The contract must specify how much of the ingoing contribution the resident will get back if, after the cooling-off period, the resident:

(a) dies before taking up residence in the residential premises concerned, or

(b) after taking up residence, permanently vacates the premises within a period specified in the contract.

A village contract must set out the following:

(a) the intervals or dates on which any recurrent charges are payable under the contract,

(b) how they may be paid.

If recurrent charges payable by the resident are to be varied in accordance with a fixed formula, the contract must include the following:

(a) the intervals or dates on which recurrent charges are to be varied,

(b) the fixed formula used to determine variations in the amount of recurrent charges,

(c) the amount of written notice that will be given to the resident to vary the amount of recurrent charges (such notice being not less than 14 days).

If recurrent charges payable by the resident may be varied other than in accordance with a fixed formula, the contract must include the following:

(a) the intervals or dates on which the operator may propose a variation in the amount of recurrent charges,

(b) any upper limit by which the operator agrees not to propose an increase,

(c) the amount of written notice that will be given to the resident if a variation is proposed (such notice being not less than 60 days),

(d) a statement to the effect that the amount of recurrent charges cannot be varied unless affected residents consent to the variation or the Tribunal orders the variation to take effect.

The contract must include a statement to the effect that if the resident is absent from the village for any reason for at least the period specified in the contract (not being a period of more than 28 consecutive days), the resident is not liable for recurrent charges for personal services in respect of the remainder (if any) of that period of absence.
The contract must specify whether the resident is liable to continue to pay recurrent charges after permanently vacating the premises, and, if so, for what period of time and under what conditions.

The contract must list and describe all services provided or made available to the resident by, or on behalf of, the operator. The contract must list any additional or optional personal service available to the resident on a “user pays” basis, and the cost of such services as at the date of preparation of the contract. The contract must list all facilities within the village available for the use of the resident.
The contract must identify any services or facilities that the development consent for the village requires to be provided for the life of the village.
Any representations about proposed services or facilities made before the contract is entered into:

(a) must be specified in the contract, and

(b) must identify the service or facility concerned, and

(c) must specify the date by which it is to be provided or made available.

The contract may distinguish between general services and personal services, but, if it does, must include a statement to the effect that the Tribunal has the power to override this determination in the event of a dispute.
The contract must draw the resident’s attention to the fact that services and facilities may be reduced or (except for those required by the development consent to be provided for the life of the village) withdrawn or otherwise varied, but only if the residents of the village pass a special resolution to the relevant effect in accordance with the provisions of the Retirement Villages Act 1999 .
The contract must make it clear that the resident has no right to compensation if services or facilities are reduced or withdrawn or otherwise varied in accordance with a special resolution of the residents.

A residence contract must list the fixtures, fittings and furnishings that are to be provided in the residential premises.

A residence contract must set out the process by which the resident can request the operator to carry out necessary repairs and maintenance.

A residence contract must specify the conditions under which a resident may alter or add to the residential premises. The contract must include a provision to the effect that the resident may, at any time before permanently vacating the premises, remove any fixture that the resident has added to the premises.

The contract must set out the circumstances under which the operator, or a person authorised by the operator, may enter the residential premises.

The contract must include a statement to the effect that if any term of the contract conflicts with a village rule, as amended from time to time, the village rule prevails over the conflicting term of the contract.

The contract must set out the resident’s right to apply to the Consumer, Trader and Tenancy Tribunal if the resident considers a term of the contract to be harsh, oppressive, unconscionable or unjust. The contract must draw the resident’s attention to the existence of the Tribunal, and her or his ability to apply for a range of orders from that Tribunal, including the following:

(a) an order that varies or sets aside a provision of the contract or a village rule that conflicts with the retirement village legislation,

(b) an order that the operator comply with the retirement village legislation,

(c) an order to enforce a provision of the contract or a village rule.

The contract must include a statement to the effect that the terms of the contract are enforceable against any operator for the time being of the village. If a trustee is involved the contract must set out the terms or conditions on which the trustee is appointed and any rights the resident may have by virtue of that appointment.

The residence contract must set out the methods by which the contract may be terminated, including a list of the grounds under which the resident or operator may apply to the Tribunal to terminate the contract. The contract must contain a statement to the effect that the contract cannot be terminated by the operator unless the operator obtains an order from the Tribunal.

The contract must set out the conditions, if any, under which the resident may request a transfer to other residential premises within the retirement village, or to other accommodation for older people run by the same operator. The contract must disclose the general financial basis on which such a transfer may be effected.
If the operator of the retirement village has an associated facility in which residential care under the Aged Care Act 1997 of the Commonwealth is provided, the contract must also include a statement to the effect that places in such facilities are allocated on a “needs” basis and entry is subject to an assessment for admission and a transfer to the associated facility cannot be guaranteed.

The contract must state whether a departure fee is payable by the resident on termination of the contract. If a departure fee is payable the contract must set out its method of calculation. The contract must include a statement to the effect that no departure fee is payable in respect of any period after the resident permanently vacates the premises.

The contract must state whether any capital gain or loss, or increase in ingoing contribution paid by the incoming resident, is to be shared between the resident and the operator, and, if so, the percentages concerned.

The contract must set out in full the method of calculating any refund or payment due to the resident on terminating the contract, the time for its payment and any relevant conditions on its payment. In the event that two or more residents are a party to the contract, the contract must specify whether a partial refund is payable should one of them vacate and, if so, under what circumstances.

The contract must include a statement to the effect that the resident is not obliged to agree to amend the contract, or to terminate the contract and enter into a new one, because of changes in legislation (unless the legislation requires the amendment or termination) or for any other reason.

The following must be annexed to the contract:

(a) a copy of the disclosure statement provided to the resident,

(b) a copy of the current village rules, if any,

(c) a copy of the condition report, if applicable.