New South Wales Consolidated Acts

RETIREMENT VILLAGES ACT 1999 - SECT 181

181 Payments to former occupants who were not registered interest holders

(1) This section applies to a former occupant of residential premises in a retirement village who is not, or was not, a registered interest holder in respect of the residential premises concerned.

(2) The date on which the operator of a retirement village must make any refund of the former occupant's ingoing contribution that is required, under a village contract, to be made is--

(a) the date that is 14 days after the date on which the operator receives full payment under the residence contract of an incoming resident of the premises, or

(b) the date that is 14 days after the date on which the operator enters into a residential tenancy agreement with an incoming tenant of the premises, or

(c) the date that is 14 days after the date on which a person takes up residence in the premises with the consent of the operator, or

(d) if the Tribunal terminated the residence contract--the date that is one month after the date of the termination, or

(e) if the former occupant delivered up vacant possession of the premises to the operator after receiving notice of the operator's intention to apply to the Tribunal for an order terminating the residence contract--the date that is one month after the date on which vacant possession was delivered, or

(f) the date that is 6 months after the date on which the former occupant otherwise delivered up vacant possession of the premises to the operator,

whichever date occurs first, or such earlier date as the operator and the former occupant may agree (unless the contract between the operator and the former occupant provides for earlier payment).

: Maximum penalty--50 penalty units.

(3) Any other payment that is required, under a village contract, to be made to the former occupant, being an amount that is dependent on the amount of the ingoing contribution of the incoming resident of the premises, is to be paid to the former occupant within 14 days after the earlier of--

(a) the payment, under a village contract, of any money to the operator, by that incoming resident, or

(b) the incoming resident's taking up residence in the premises.

Note : A contract may provide that the resident, when he or she permanently vacates his or her residential premises in the village, is to receive a refund of a fixed amount of the resident's ingoing contribution plus a share of any capital gains (that is, any greater amount of ingoing contribution payable by the incoming resident compared with the ingoing contribution paid by the former occupant). The refund of the ingoing contribution must be paid by the time specified in subsection (2), while the share of capital gains (if any) must be paid by the time specified in subsection (3).

(4) At the same time as a payment is made under this section, the operator must give the former occupant a statement setting out the following and showing how the amounts were calculated--

(a) the departure fee (if any) payable by the former occupant,

(b) accrued or outstanding recurrent charges, if any, payable by the former occupant,

(c) any amount payable by the former occupant in respect of repairs required to the residential premises concerned (as referred to in section 163),

(d) in the case of a former occupant who is required to pay for the cost of the refurbishment of his or her residential premises (as referred to in section 165)--the cost of that refurbishment,

(e) any other amount payable by the former occupant under a village contract,

(f) in relation to the part of a refund referred to in subsection (3)--the amount of the ingoing contribution of the incoming resident of the premises,

(g) the amount of the payment to the former occupant.

: Maximum penalty--10 penalty units.

(5) If the operator is of the opinion that he or she will not be able to enter into a residence contract with another person in respect of the premises within the time specified in subsection (2) (f), the operator may apply to the Tribunal for an order--

(a) extending the time allowed for payment under this section, or

(b) allowing payment by instalments,

on the grounds that compliance with the time-frame specified in subsection (2) (f) would cause undue hardship to the operator.

(6) In determining an application made under subsection (5), the Tribunal--

(a) may have regard to the hardship to be caused to the former occupant if an order of the kind set out in subsection (5) is made, and

(b) may make an order of that kind, and

(c) may, if it sees fit to do so, make a further order for the payment of interest at a rate determined by the Tribunal.

(7) If a payment is not made to the former occupant within the time required by this section--

(a) the former occupant may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to make the payment, and

(b) interest is payable, at the rate prescribed by the regulations, on that unpaid amount on and from the date that the amount becomes overdue.

(8) If, in the opinion of the former occupant, the amount of a payment made under this section was not calculated in accordance with this Act or any relevant village contract, or the conduct of the operator has unfairly had a negative financial impact on the former occupant--

(a) the former occupant may apply to the Tribunal for (and the Tribunal may make) an order directing the operator to recalculate the amount in accordance with the directions of the Tribunal and pay any additional amount due to the former occupant as a result of the recalculation, and

(b) if the Tribunal considers it appropriate, the Tribunal may order the payment of interest on that additional amount at the rate prescribed by the regulations.

(9) Without limiting subsection (8), conduct of the operator that may unfairly have a negative impact on a former occupant includes entering into a village contract with a subsequent resident that contains terms that--

(a) are substantially different from those contained in the village contract to which the former occupant was a party, and

(b) will have a negative financial impact on the former occupant to the benefit of the operator.