South Australian Current Acts South Australian Current Acts (1) This section
applies despite the terms of a residence contract (but subject to any order of
the Tribunal under subsection (7)).
(2) If a residence
contract provides for payment of an exit entitlement when certain conditions
specified in the contract are fulfilled, the resident (or a person claiming
under the resident) may recover the amount payable as a debt from the
operator, for the time being, of the retirement village when—
(a) the
specified conditions are fulfilled; or
(i)
a period of 18 months has elapsed since the resident
ceased to reside in the retirement village; or
(ii)
a period of not less than 18 months has elapsed since the
resident gave the operator a notice in accordance with subsection (3)
(being a notice that has not since been withdrawn in accordance with
subsection (4)(b)) and a period of not less than 3 months has elapsed
since the resident delivered up vacant possession of the residence; or
(c) the
operator agrees to pay the exit entitlement to the resident,
whichever occurs first.
(3) A resident gives
an operator notice in accordance with this subsection if—
(a) the
resident gives the operator a notice, in writing and in accordance with any
other prescribed requirements, advising the operator that the resident—
(i)
intends to cease to reside in the residence in the
retirement village; but
(ii)
wishes to remain in occupation of the residence until the
exit entitlement becomes payable in accordance with subsection (2); and
(b) a
period of 10 business days has elapsed since the notice was given to the
operator; and
(c) any
previous such notice given by the resident to the operator was withdrawn at
least 6 months before this notice was given to the operator.
(4) A resident who
gives an operator notice in accordance with subsection (3)—
(a) is,
by giving such notice, taken to have agreed to comply with the prescribed
requirements for the period during which the resident remains in occupation of
the residence pursuant to the notice (and those requirements will, for the
purposes of this Act, be taken to be terms of the residence contract during
that period); and
(b) may
withdraw the notice at any time with the agreement of the operator.
(5) If—
(a) an
amount becomes payable to a person in accordance with subsection (2)(b);
and
(b) that
amount should, in accordance with the residence contract, be calculated based
on the consideration paid on sale of a right to reside in the
retirement village; and
(c) the
sale referred to in paragraph (b) has not yet occurred,
the following provisions apply:
(d) the
person to whom the exit entitlement is payable may, by written notice given to
the operator of the retirement village within the prescribed period, elect not
to receive the payment at that time but to wait until the exit entitlement
becomes payable in accordance with subsection (2)(a);
(e) if
the person does not so elect—the amount payable must be calculated in
the manner provided in the residence contract but as if the consideration paid
on sale of the relevant right to reside in the retirement village was the
current market value of that right.
(6) For the avoidance
of doubt, if a resident receives a payment in accordance with
subsection (2)(b), that payment is taken to be the exit entitlement for
the purposes of the contract (and is not subject to any adjustment when the
conditions specified in the contract for payment of the exit entitlement later
occur).
(7) The Tribunal may,
on the application of the operator of the retirement village made within the
period of 18 months referred to in subsection (2)(b), extend that
period if satisfied that special circumstances exist.
(8) In considering an
application under subsection (7), the Tribunal must have regard to—
(a) the
financial hardship likely to be suffered by the operator if the order were not
made; and
(b)
whether the operator has taken reasonable steps to fulfil the conditions
specified in the residence contract for the payment of the exit entitlement.
(9) The Tribunal may,
when making an order under subsection (7), make any consequential or
ancillary orders it thinks fit.
(10) The rights of a
resident to payment of an exit entitlement are a charge on land in the
retirement village other than—
(a) a
residence owned by a resident; or
(b)
common property in a community retirement village,
provided that the charge only operates to the extent of the ingoing
contribution paid by the resident.
(11) Despite the
Real Property Act 1886 , the charge referred to above ranks in priority
to any other mortgage, charge or encumbrance over the land to which the charge
relates.
(12) The charge
referred to above can only be enforced—
(a) with
the approval of the Supreme Court; and
(b)
subject to any conditions to which the Supreme Court's approval is subject.
(13) If the Supreme
Court approves the enforcement of the charge it may, subject to the conditions
stipulated by the Court, be enforced in the same way as a mortgage registered
under the Real Property Act 1886 .
(14) If the Supreme
Court approves the enforcement of the charge in a case where the operator is
not the village land owner, the village land owner may, subject to any order
of the Supreme Court, recover the amount of the charge so enforced from the
operator as a debt.
(15) If an operator
fails to pay the whole or any part of an exit entitlement within
10 business days after the resident becomes entitled to recover the
amount as a debt in accordance with this section, the operator is guilty of an
offence.
Maximum penalty: $5 000.
Expiation fee: $315.
(16) If a resident of
a retirement village disagrees with the operator's determination of the market
value of the right to reside in a residence made for the purposes of
determining an exit entitlement, the resident may require the operator to
obtain an independent valuation in accordance with any requirements prescribed
by the regulations (and in such a case the operator may recover half of the
costs of obtaining the valuation from the resident as a debt or by
subsequently deducting those costs from the resident's exit entitlement).
(17) A reference in
this section to a "resident" includes—
(a) any
person who has entered into a residence contract (whether or not the person
has entered into occupation of the residence); and
(b) any
person who has entered into a residence contract but has not entered into
occupation of the residence as a result of a failure of the operator to comply
with a term or condition in the residence contract,
and such a person will, for the purposes of this section, be taken to have
ceased to reside in the residence on the day on which the person gave written
notice to the operator that he or she did not intend to enter into occupation
of the residence and wished to terminate the residence contract.