There are a number of different ways in which a resident's right of occupation within a retirement village may be terminated.
Can the operator terminate a resident’s right of occupation?
An operator of a retirement village can only terminate a resident’s right of occupation in the following circumstances:
- where the resident has passed away;
- where the resident commits a breach of the residence contract or residence rules;
- where the resident acts in a manner which adversely affects the health and safety of persons working in the retirement village or that seriously disturbs the peace and comfort of other residents;
- where the residence becomes an unsuitable place of residence for the resident because of the resident’s mental and physical incapacity; or
- where circumstances exist that make it no longer appropriate for the resident to continue to reside in the residence.
See Retirement Villages Act 2016 (SA) s 44.
The operator must not terminate the resident’s right on the basis of the resident’s behaviour unless they have made reasonable efforts to stop the resident acting in the manner complained of, such as [s 44(3)]:
- giving the resident written warning to stop acting in that manner; or
- conducting some form of mediation or dispute resolution process with the resident, or
- any other means appropriate in the circumstances.
In most circumstances, and in particular where the resident's behaviour has led the operator to terminate a resident’s right of occupation, the termination must be confirmed, on the application of the operator, to SACAT [s 44(8)].
A resident’s right of occupation can also be terminated in the following limited circumstances:
- where the holder of a mortgage or charge that was in existence at the commencement of the former Retirement Villages Act 1987 (SA) becomes entitled to vacant possession [s 44(1)(e)], or the Supreme Court terminates the residence contract in proceedings under section 58 [s 44(1)(g)]. Section 58 relates to the termination of an entire retirement village scheme.
Can a resident terminate their right of occupation?
A resident has a 10 business day cooling-off period to change their mind after they have signed a residence contract [Retirement Villages Act 2016 (SA) s 24(3)]. They can exercise their cooling off rights within this period and notify the retirement village operator in writing that they do not wish to proceed with the contract [s 24(5)]. A resident can waive their right to cool off if they wish to move into the premises within 10 business days of signing the residence contract [s 24(4)(a)]. They must sign a written waiver acknowledging that they have been informed of their right to cool off and have chosen to waive this right [s 24(4)(b)].
In addition to a cooling off period, a resident has a period of time that is referred to as the "settling-in" period. This is a period of time in which the resident may decide that they do not wish to remain residing in the village. The settling-in period starts from the day the resident signed the contract or began occupying the residence (whichever was later) and ends 90 days thereafter, or such longer period as may be specified in the resident’s contract.
A residence contract cannot limit or qualify the right of a resident to terminate during their settling-in period [s 44(4)].
If a resident terminates the right of occupation during the settling-in period, they are liable to pay fair market rent for the period of occupation and any other amounts payable under the residence contract [s 44 (5)]. A resident cannot, however, be required to pay an amount as a penalty for terminating during the settling-in period [see s 44(7)].
The amount due may be deducted from the resident’s exit entitlement [s 44(6)].
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