From 1 January 2018, the Retirement Villages Act 2016 (SA) governs retirement villages in South Australia, from entering into residence contracts, to meetings and consultation, residence rules, termination and exit entitlements.
Moving into retirement housing can be a major life event. It can involve significant financial and lifestyle changes.
For more information on retirement housing, see also Office for the Ageing's booklet Retirement Villages: Information for Residents and Prospective Residents.
Features of Retirement Villages
Retirement villages are often independently owned and privately operated. This means that before entering a retirement village, a prospective resident will be asked to sign a retirement village residence contract. This contract will stipulate the rights and obligations of both the resident and the retirement village operator. For more information see: Residence Contracts.
Most retirement villages operate on the basis that by entering into a retirement village residence contract, a resident is granted a lease or licence to occupy the premises. That means that they do not own the residence in which you live, but rather have a right to occupy it. In some instances a resident may be able to purchase the premises on the condition that the operator is granted the right to repurchase. The retirement village residence contract will stipulate the nature of the resident's interest in the property.
It is important that legal advice be sought before entering into any residence contract, to ensure that the person is aware of their rights and obligations.
What other accommodation options do I have aside from living in a retirement village?
Retirement villages may vary from village to village in terms of their size and the type of accommodation and services they offer. While many older people choose to live in a retirement village, there are also other accommodation options available. Future accommodation choices may have financial implications on a person's social security entitlements, tax liabilities, and future finances. The Centrelink Financial Information Service may be able to advise on potential financial consequences of any proposed future accommodation arrangement.
Family arrangements involve a person remaining in their home with the support of their family, or moving into a family's residence and utilising their care and support. In some instances, a person's family may provide care and support in exchange for a share in the person's home, for example, or other financial benefit. In these circumstances it can be important to have a written agreement that outlines the financial, living and care arrangements. As these arrangements may fall under Centrelink's 'granny flat' rules and 'gifting' rules, and may impact upon a person's aged care costs if they move into an aged care facility in the future, it is important to get financial and legal advice before entering into a family arrangement.
Aged Care Homes
Aged care homes vary from being privately owned, to run by church organisations, local councils, and not-for-profit organisations. The Commonwealth Government accredits, regulates and subsidises aged care homes. Therefore, while aged care homes are accredited by the Commonwealth Government, retirement villages do not require Commonwealth Government approval to operate. Aged care homes are also governed by separate legislation from retirement villages.
Various fees and payments apply to reside in an aged care home, which are often determined by a person's income and assets. Eligibility to enter into an aged care home is determined following an assessment by an Aged Care Assessment Team (ACAT). To arrange an ACAT assessment, contact My Aged Care.
Complaints against government funded aged care services can be made to the Aged Care Complaints Commissioner. For more information see: Aged Care Complaints Commissioner.
Remaining at Home
Some older people may be able to remain at home with the assistance of certain home support services and home care packages. My Aged Care is the starting point to access government funded aged support services.
A person has a right to seek rental accommodation regardless of age, and cannot be refused rental accommodation or have their current tenancy agreement terminated because of their age.
What documents and information can a prospective resident expect to receive before signing a contract?
If a person is considering moving into a retirement village, they will be provided with a number of important documents before they are asked to sign a contract, being the residence contract. It is important that after receiving these documents, that appropriate legal and financial advice is sought.
At least 10 days before a person enters into a retirement village residence contract, the operator of the retirement village must give the person a copy of the following:
- The residence contract;
- The disclosure statement;
- If the contract relates to a retirement village already established:
- The financial statements presented at the last annual meeting of residents and a written statement of any subsequent changes
- A copy of the minutes of the last 2 annual meetings of residents;
- The Residence Rules;
- The policy regarding remarketing of residences;
- Any Code of Conduct to be observed by the operator or residents, and
- Any other document prescribed by the Retirement Villages Regulations 2017 (SA)
See Retirement Villages Act 2016 (SA) s 22.
These documents should be read thoroughly and understood before signing the residence contract. Financial and legal advice should be sought at this time.
Some of these documents are outlined in more detail further in this chapter.
What must be included in the residence contract?
A residence contract is the main document that outlines the relationship between the prospective resident and the retirement village operator. It operates in addition to the provisions of the Retirement Villages Act 2016 (SA) and associated regulations (but cannot include clauses contrary to the Act or regulations). It is therefore vital that any prospective resident obtain legal advice where appropriate before signing a residence contract, to ensure they understand their rights and obligations.
A resident contract must include the name and contact details of the operator of the retirement village, details about the particular residence the person will reside in, and the resident’s rights and obligations under the contract, including:
- The right to cool off(to rescind the contract and not proceed with becoming a resident in the retirement village)
- Under section 24 of the Act, a prospective resident is entitled to rescind the residence contact (cool off) within 10 business days after the day they signed the contract, unless they occupy before the end of that period and sign a written waiver of their right to cool off.
- If a person wishes to cool off, they must do so in writing to the operator.
- The right to occupation of the residence
- Recurrent charges the resident must pay
- The right to terminate occupation and receive an exit entitlement
See Retirement Villages Act 2016 (SA) s 20.
The contract should also include information about:
- additional services and facilities available to residents and the cost of them
- who will be responsible for repairing or replacing fixtures, fittings and furnishings in the residence and how the cost is to be covered, and
- anything else prescribed by the Retirement Villages Regulations 2017 (SA)
Warranty as to Accuracy of Information
A residence contract is taken to be correct (subject to any written change made by the operator with the consent of the resident on or before signing the contract), unless the resident elects not to rely on its correctness.
Fees and Charges
A disclosure statement must be provided to prospective residents at least 10 days before they sign a residence contract. A disclosure statement is intended to improve the transparency of residence contracts and to provide prospective residents with a summary of the relevant financial information before they sign a contract.
The disclosure statement must be in writing and set out the financial arrangements for residents of the retirement village, including:
- a description of all fees and charges (whether on entry or exit or once off or recurrent fee), including the amount or how the amount is to be calculated;
- what the operator does with the fees and charges;
- any utilities, services or facilities provided or available to residents that the operator has an interest in or gains a benefit from;
- the way the resident’s exit entitlement will be calculated and the effect of section 30 of the Act where the resident is exiting to enter into an aged care facility;
- the insurance arrangements that are in place for the retirement village;
- a statement advising of the possibility of a fee or charge arising for the operator to recover an unforeseen expense (this is called a special levy under the Act).
See Retirement Villages Act 2016 (SA) s 21.
Legal and Financial Advice
The disclosure statement must include a statement advising that [s 21(2)(c)]:
- the disclosure statement does not form part of the residence contract, and is intended only as a summary of certain information in the contract;
- the prospective resident must ensure they fully understand the terms of the residence contract itself, rather than relying on the disclosure statement; and
- recommending that the prospective resident seek independent legal and financial advice about the proposed residence contract.
Schedule 1 of the Retirement Villages Regulations 2017 (SA) provides for a Code of Conduct that must be adhered to by operators and residents.
If an operator breaches a provision of the Code of Conduct, they are liable to pay a fine of up to $2 500 or an expiation fee of $210 [s 63(3)].
The Code stipulates that operators, amongst other things, must:
- not interfere with residents' self-reliance and autonomy in their personal, domestic and financial affairs;
- take reasonable steps to ensure that the retirement village is safe and secure;
- not harass or intimidate residents of the village;
- respect the peace, privacy and comfort of residents;
- acknowledge, within a reasonable time, requests from residents for repairs and maintenance of the village;
- consult residents in relation to the financial affairs of the village
See Retirement Villages Regulations 2017 (SA) Schedule 1(1).
The Code also provides that residents must:
- respect the peace, comfort and privacy of other residents and persons in the village;
- not harass or intimidate other residents or persons in the village;
- not act in a manner that places the safety of residents or persons in the village at risk of harm;
- comply with the residence rules.
See Retirement Village Regulations 2017 (SA) Schedule 1(2).
The Code also sets out other various requirements relating to consultation with both residents and any residents' committee on various matters [see Retirement Villages Regulations 2017 (SA) Schedule 1(5) and (6)], and requirements relating to surplus and deficit policies [see Retirement Villages Regulations 2017 (SA) Schedule 1(4)].
A key document that must be provided to a prospective resident prior to them signing a residence contract is a copy of the retirement village's Residence Rules.
The Rules relate to the use of the retirement village to ensure the enjoyment of the village by all residents [Retirement Villages Regulations 2017 (SA) reg 15(a)].
Residence Rules must address at least the following (but can be more comprehensive than the following):
- visitors to the retirement village or residence. This can include rules relating to visitors staying in the village or in a residence overnight, or on a short-term or long term basis;
- noise within the village;
- parking arrangements within the village;
- collection and disposal of rubbish;
- gardening and landscaping requirements within the village;
- the use and operation of services and facilities within the village
See Retirement Villages Regulations 2017 (SA) reg 15(b).
A residence rule cannot be harsh or unconscionable [see Retirement Villages Act 2016 (SA) s 41].
Retirement village operators are required to consult with residents before making any changes to the Residence Rules [see Retirement Villages Regulations 2017 (SA) Schedule 1 reg 6(1)(c)].
Aside from being provided with a copy of the Residence Rules prior to signing a residence contract, a retirement village operator must also provide a copy to any resident at their request [see Retirement Villages Act 2016 (SA) s 42(1)(b)] and if any alterations are made to the Rules, must provided a copy of the amended rules to each resident [see s 42(2)].
The penalty for an operator failing to comply with the above is a maximum fine of up to $2 500 [see s 42].
If a resident commits a breach of the Residence Rules, the operator may terminate their right of occupation on that basis [see s 44(1)(c)(I)].
The operator of a retirement village must complete a premises condition report not more than 10 business days after a person enters into occupation of a residence [Retirement Villages Act 2016 (SA) s 23].This report must provide detailed information about the condition of the fixtures, fittings and furnishings in the residence and be signed by both the operator (or someone on their behalf) and the resident [see s 23(3)].
Fees and Charges
Each retirement village has its own set of fees and charges, which must be set out in the residence contract and also in the disclosure statement. The most common sets of fees and charges are recurrent charges (which may cover things like administration, food, and utilities), capital replacement funds (which may be used to replace things like appliances, hot water services, or air conditioners) and sinking funds (which may be used for long-term maintenance and unplanned expenses). Some villages may also offer additional services such as cleaning of the residence, care services, and separate meals, which may attract additional fees.
Consultation with Residents
Retirement village operators are required to consult with residents on any matter that could have a significant impact on their financial affairs, the amenity of the retirement village, or their way of life. Consultation must occur before:
- any redevelopment of the village is undertaken [s 37];
- the operator changes any dispute resolution policy [Retirement Villages Regulations 2017 (SA) Schedule 1 reg 6(1)(a)];
- any changes are made to the Residence Rules [Schedule 1 reg 6(1)(c)];
- any changes are made to the operator's remarketing policy [Schedule 1 reg 6(1)(d)]
A single residents' committee may be established within a retirement village, with the purpose of representing the interests of residents and to consult with the operator of the village on behalf of residents [see Retirement Villages Act 2016 (SA) s 38].
Members of a residents' committee are elected to the committee for a period of one year, but can stand for re-election [s 38(5)].
A residents' committee can call meetings with other residents [see Retirement Villages Regulations 2017 (SA) reg 12(1)], and can meet with the retirement village operator as required [Retirement Villages Act 2016 (SA) s 38(11)]. The Committee is required to call a meeting with residents annually, where certain financial information of the committee must be provided [Retirement Villages Regulations 2017 (SA) reg 12]. The Committee must take minutes from these meetings and within 10 business days make them available for other residents to inspect, and cause a copy to be given to the operator [see reg 12(4)].
A retirement village operator is required to consult with a residents' committee on a range of matters, including any maintenance issues raised by residents to the Committee, certain proposed changes to village services or amenities, and the establishment of social and recreational programs at the village [see Schedule 1 reg 5].
Meetings are an important way for residents to keep in contact with retirement village operators and for operators to provide relevant information (particularly, financial information) to residents. They also provide an opportunity for residents to vote on certain proposals affecting the village.
A resident's meeting must be convened by the operator of a retirement village on at least an annual basis [see Retirement Villages Act 2016 (SA) s 33(1)]. Each resident will be provided with written notice of the meeting at least 10 business days before it is held [s 33(5)]. A notice of an annual meeting must contain various financial, income and expenditure details [s 33(6)(a)] as well as an invitation for residents to submit written questions to the operator at least 5 business days before the meeting [s 33(6)(b)].
Minutes must be made within 10 days of an annual meeting, a copy of which must then provided to each resident [s 34(4)(a)].
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)].
What is an exit entitlement?
An exit entitlement is the amount of money that is, under the residence contract, payable by the operator of the retirement village when a resident leaves their premises vacant, or when certain conditions under the residence contract are fulfilled, whichever occurs first [see Retirement Villages Act 2016 (SA) s 4].
When does an exit entitlement become payable?
An exit entitlement may not become payable immediately. It may become payable when [s 27]:
- specified conditions are fulfilled under the residence contract; or
- 18 months have passed since the resident left the residence vacant; or
- 18 months have passed since the resident gave written notice that they were leaving the residence, the last 3 months of which the resident did, in fact, leave the residence vacant; or
- the operator otherwise agrees to pay the exit entitlement earlier.
The operator may apply to the South Australian Civil and Administrative Tribunal (SACAT) for the period of 18 months to be extended where special circumstances exist to justify it. Regard must be had to the financial hardship likely to be suffered by the operator if the period is not extended and whether the operator, has for example, made taken reasonable steps towards sale [ss 27(7)-(8)].
The operator must pay the exit entitlement within 10 business days after the resident becomes entitled to the payment. Failure to pay on time is an offence on the part of the operator [s 27(15)].
Can the exit entitlement be paid earlier?
The exit entitlement can be paid earlier than the time frames described above if the operator agrees to pay it early.
If a resident moves from a retirement village to an aged care facility, and demonstrates a need to use the exit entitlement to pay the required payments to the aged care facility, then the resident can apply for early access to the exit entitlement [s 30]. The resident must apply to the retirement village operator within 60 days of being approved entry into an aged care facility, or within 60 days of vacating the retirement village (whichever is the later) [s 30(1)]. The retirement village can then make payments to the aged care facility on the resident's behalf towards the daily accommodation costs of the resident [s 30(3)]. The amount the retirement village pays to the aged care facility is then deducted from the resident's exit entitlement when it becomes otherwise payable [s 30(6)].
Can a resident continue to occupy the residence during the notice period?
When giving written notice, a resident may advise the operator that they will remain in occupation for the following 15 months, allowing for 3 months of vacancy, before the 18 month period elapses, and their exit entitlement then becomes payable. The notice takes effect 10 business days later.
Can a resident participate in the sale of the premises?
A resident can participate in the sale of the premises, if:
- payment of the exit entitlement depends on the sale of the resident’s right to occupy the residence; and
- 9 months have passed since they left the residence vacant or gave written notice that they were leaving the residence.
This must be done through an agent and the operator of the retirement village must be kept informed of this and any developments in relation to the sale. The operator can also continue to remarket the premises concurrently in accordance with the operator’s remarketing policy.
[Retirement Villages Act 2016 (SA) s 32; regs 9 and 18]
What if a resident changes their mind after giving written notice?
Notice that a resident will be leaving the premises vacant may be withdrawn at any time with the agreement of the operator [s 27(4)]. The resident will, however, be responsible for any remarketing costs incurred since the notice was given (which may be deducted from their exit entitlement).
How is the exit entitlement calculated?
If an exit entitlement becomes payable and the contract says that it shall be calculated on the consideration paid on the sale of the right to reside in the retirement village, but that sale has not yet occurred, the resident may elect to either wait until the sale occurs, or receive the entitlement as if the consideration paid on the sale was the current market value [s 27(5)]. If paid in this way, the entitlement is not later subject to an adjustment after the sale occurs [s 27(6)].
The operator must provide residents, at their request and free of charge with a statement of the amount to which the resident would be entitled, by way of exit entitlement [s 42(1)].
What if a resident disagrees with the proposed market value?
If a resident does not agree to the operator’s determination of the market value, the resident may require the operator to obtain an independent valuation (with the operator entitled to recover half of the cost of obtaining that from the resident) [s 27(16)].
Does a resident have to pay recurrent charges even if they are absent for a lengthy period?
If a resident is absent for a continuous period of at least 28 days, the resident is not thereafter liable to pay any amount in relation to any personal service that the retirement village no longer provides due to the resident’s absence [s 29(1)]. The same applies if a resident ceases to reside in the retirement village [s 29(2)]. A personal service is one which is provided to the resident individually, rather than to residents generally.
A resident is taken to have ceased to reside in the retirement village when the person (or someone else on their behalf, including an executor or administrator of their estate upon their death) delivers vacant possession to the operator. If the person’s right of occupation is terminated, it is then the date that is fixed by SACAT for vacant possession. Vacant possession means that the residence is no longer occupied and all personal property has been removed from the residence [s 4(2)].
The operator of the retirement village may recover the costs of any other recurrent charges as a deduction from the exit entitlement (up to an amount not greater than the exit entitlement itself, and for a length of not more than 6 months, unless extended by SACAT or shortened by the residence being re-sold or re-occupied earlier) [ss 29(3)-(7)].
Disputes may arise between residents and operators of retirement villages, or between two or more residents residing in the same village. While some of these disputes can be resolved informally, the operator of a retirement village must also have a written dispute resolution policy, which must comply with any requirements prescribed by the Retirement Villages Regulations 2017 (SA) [Retirement Villages Act 2016 (SA) s 45 and reg 18].
A copy of the policy must be provided to residents within 5 business days of request.
The dispute resolution policy must contain, among other things, information on:
- who a resident can contact in the event of a dispute (such as a representative of the operator);
- how a dispute will be handled once a complaint is made, including time frames for responding to complaints;
- how a resident can resolve a dispute with another resident;
- the ability of a resident to apply to SACAT if they are not satisfied with the response to their complaint;
- any requirements of the operator to keep records of complaints.
See Retirement Villages Regulations 2017 (SA) reg 18.
If, after reasonable attempts to resolve the dispute by following the dispute resolution policy, the dispute continues, a party to the dispute may apply to the South Australian Civil and Administrative Tribunal (SACAT) for resolution of the matters in dispute [Retirement Villages Act 2016 (SA) s 46].
Legal advice should be sought before making an application to SACAT.
An application must not be made to SACAT concerning an act or omission that occurred more than 4 years beforehand, except with the permission of SACAT [s 46(2)(b)]. In these cases, permission should be sought in the first instance.
SACAT can make a range of orders, including orders [s 46(3)]:
- to restrain a breach of the contract or the Act;
- to require action in the performance of the contract or compliance with the Act;
- to pay compensation for loss or injury, other than personal injury, caused by a breach of the contract or the Act;
- to require the operator to vary or reverse its decision;
- to avoid or modify terms or conditions of an agreement between the operator and resident;
- to require the operator to repay to the resident any amount paid by the resident; and
- to determine the amount payable as an exit entitlement
A dispute as to an exit entitlement may alternatively be brought before a court with jurisdiction to hear and determine a claim founded on contract for the amount in dispute [s 46(9)]. Depending on the amount sought, this would likely be the Magistrates Court or District Court.
Office for the Ageing provide a mediation service for certain retirement villages disputes, which may be considered as an alternative dispute resolution option instead of legal proceedings. For more information see the SA Gov- Retirement Housing Information for Residents website.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.