Retirement village contracts

Information for retirement village operators

A written contract must be in place between a village operator and each resident before they move into the village, unless they are:

  • moving in with an existing resident or
  • signing a residential tenancy agreement under the residential tenancy laws.

The village contract may be a residence contract or a service contract, or can combine both. Operators can ask residents to pay a maximum of $50 towards the cost of preparing a contract. You must give prospective residents a copy of their proposed contract at least 14 days before signing it. Residents can get independent legal and financial advice if they like. If a resident changes their mind after entering into a village contract, they are generally able to end the contract during the cooling-off period or settling-in period.

Standard village contract

Retirement village contracts entered into on or after 1 October 2013 must be in the standard form which is prescribed in schedule 2 of the Retirement Village Regulation 2017. The standard contract sets out residents’ and operators’ rights and obligations in a clear, standardised format. It covers matters like what residence rights are, costs, services and facilities, alterations and additions, repairs and maintenance, and sharing of capital gains.

You can include additional terms at the back of the contract. The additional terms cannot be inconsistent with the standard terms or the retirement village laws or any other law.

The following documents must be attached to the contract:

  • a copy of the disclosure statement that was given to the resident
  • the condition report (if one is required to be prepared)
  • a list of the village services and facilities, and
  • the village rules (if any).

Exceptions

A standard contract form does not have to be used for:

  • a separate contract that is just for a garage or storage space
  • a sale of land contract where a resident buys a strata or community scheme unit, or an agreement to buy company title shares – however, these residents must sign a service contract in the standard form.

Are there different kinds of standard contract?

There is one standard contract form prescribed in the Retirement Villages Regulation 2017. The standard form is designed to be generic so that it can be adapted and used for all types of village arrangements. Some of the contract terms will need to be different depending on whether the contract is for a licence, leasehold, strata or other type of arrangement. For some items, the standard contract form includes alternative terms and indicates where the operator can cross out or delete the option that does not apply.

Section 80 of the Interpretation Act 1987 (NSW) contains information about the requirements for completing prescribed forms. If in any doubt, ask a legal expert to prepare or check the draft contract before it is given to a resident.

General standard form for all interest holders

This is the standard prescribed form from the Regulation which can be adapted for any type of village by crossing out or deleting the alternative terms where appropriate.

Non-registered interest holders

The following forms should be used where the resident will be a non-registered interest holder. This includes loan/licence arrangements and leases where the resident is not owed capital gains and/or the term is less than 50 years.

Registered interest holders

The following forms should be used where the resident will be a registered interest holder.

Disclaimer

This is not legal advice. Although every care has been taken in preparing the template forms, we cannot guarantee that documents produced using them will fully comply with the law. We recommend that you have any documents prepared or checked by a qualified legal expert.

Rights and obligations for retirement village operators

A retirement village operator is defined in section 3 of the Retirement Villages Act 1999 as a person who owns, manages or controls the village. This does not include the owners corporation in a strata scheme village or the community association in a community scheme village. It also does not include a strata or community managing agent. A village operator has the right to:

  • sell or transfer ownership of the village or its management rights (the new operator is bound by the residents’ contracts)
  • decide who is employed in the village, subject to the amount for salaries and wages in the annual budget
  • propose an amendment to the village rules or a variation to the services and facilities provided
  • apply to the NSW Civil and Administrative Tribunal to settle disputes.

Among other things, a village operator must:

  • enter into written contracts with residents
  • Make sure the village is reasonably secure and safe, including
    • ensuring locks and security devices are in working order
    • preparing written safety and emergency procedures
    • ensuring residents and staff are familiar with the procedures
    • undertaking an annual safety inspection
    • making a report on the findings from an inspection available to the Residents Committee and putting a copy on the village notice board
  • hold annual management meetings with residents
  • Make sure there is vehicle access at all times for emergency and home care services
  • use their best efforts to ensure residents, visitors and employees comply with the village rules
  • insure the village for full replacement value and have public liability insurance
  • arrange for maintenance and repair or replacement of village property as necessary
  • prepare an itemised annual budget and seek residents’ consent (if required)
  • provide receipts for recurrent charges
  • make sure the village’s annual accounts are audited (where required) and provide copies to residents within four months, and
  • provide quarterly accounts where required.

Accounting exemptions for smaller villages

If a village’s total annual recurrent charges are $50,000 or less, the residents can give their written consent that:

  • the annual accounts do not have to be audited, and/or
  • quarterly accounts do not have to be given to the residents.

If the total amount of recurrent charges in a financial year is $50,000 or less, the residents can also consent to not receive a copy of the proposed budget.

If the annual accounts are not audited, you must prepare a statement stating you can meet all liabilities relating to the village for the current and following year. If the recurrent charges collected for the year exceed $50,000 or the residents revoke their consent, the exemptions stops.

Registration of retirement villages

All retirement villages in NSW must be registered with Land and Property Information. This is a requirement under section 24A of the Retirement Villages Act 1999 and penalties apply if you don’t comply.New villages must be registered before you enter into any village contracts with residents.

The information that goes to Land and Property Information goes on a publicly available list of retirement villages run by Fair Trading.

How to register a village or update details

You’ll need to complete request form 11RN. On the Request form, you need to identify the land (or the relevant part of the land) that is being used as a retirement village and the name of the village. Registration is a once-only process but you must let Land and Property Information know if there are any changes to the information. Registering the village creates a statutory charge under Part 10A of the Act. Go to the Land and Property Information website to download the request form 11RN.

Public register of villages

Fair Trading publishes a register of all retirement villages that have registered with Land and Property Information.

Prospective residents can use the public register to find out where villages are located and how to contact them. The register also allows Fair Trading to circulate information to retirement village operators about changes to the law.

If you find incorrect or outdated information on the public register, call Fair Trading on 13 32 20 or email AccommodationRegister@finance.nsw.gov.au.

Disclosure to prospective residents in a retirement village

The Retirement Villages Act and Regulation contain rules about the information you must tell prospective residents before they sign a village contract. There are two compulsory disclosure documents that must be provided. These are the general inquiry document and the disclosure statement. Both of these documents are prescribed in the Retirement Villages Regulation 2017.

There are also other compulsory disclosures that have to be made on request.

General inquiry document

When a prospective resident, or someone on their behalf, makes an initial inquiry about becoming a resident, you must provide a completed general inquiry document within 14 days. The general inquiry document gives prospective residents general information about the village, including a basic overview of the types of dwellings, services and facilities that are available and an idea of the costs involved.

Disclosure statement

The disclosure statement must be given to a prospective resident, or someone on their behalf, when they request a copy or expresses interest in a unit in the village at least 14 days before they can sign a contract. The disclosure statement contains more detailed information than the general inquiry document, including financial arrangements for the village and particular unit.

If the prospective resident enters into a contract with the village, a copy of the disclosure statement must be attached to their village contract. Generally, if there is any term in the contract inconsistent with the disclosure statement to the residents’ detriment, the information in the disclosure statement will override the inconsistency. The disclosure statement must include a standard table of fees and charges that are payable under the contract. From 1 March 2018, the operator must also include an 'average resident comparison figure' in the disclosure statement. Go to the average resident comparison figure page for more information.

Other compulsory disclosures

A range of additional documents must be available for a prospective resident, or a person on their behalf, to freely inspect, either at the village or the operator’s place of business. They are entitled to take notes and make copies of these documents. A request can also be made for the operator to send documents to the person, in which case they must be provided within seven days of the request, free of charge.

The documents that must be made available are:

  • a site plan of the village and plans of available units
  • the budgets for the current financial year, the last 3 financial years and the next financial year (if it has been prepared)
  • the annual accounts for the last 3 years
  • the most recent quarterly accounts (if any)
  • examples of all village contracts the resident may be required to sign
  • the trust deed for any trust fund that money paid by residents will be deposited
  • the village rules (if any)
  • the terms of any development consent (if the village is not complete, or if the development consent requires particular services or facilities to be provided for the life of the village)
  • if the village has a capital works fund, statements showing the balance for the last three financial years and the most recent quarter
  • the operator’s waiting list policy (if relevant)
  • the company’s constitution and replaceable rules (company title villages only)
  • the management statement, management agreement and minutes of the most recent annual general meeting (community land scheme villages only)
  • the by-laws, management agreement and minutes of the most recent annual general meeting (strata scheme villages only)
  • court or tribunal decisions from last 5 years where the operator and Residents Committee were parties
  • the certificate of insurance for the village
  • policy documents showing the nature of the risk insured and the amount of insurance
  • the most recent safety inspection report
  • a detailed list of all currently available premises in the village
  • any other documents listed in section 12 of the disclosure statement.
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