Fair Trading Act 1987
Fair Trading (Retirement Villages Interim Code) Regulations 2002
Fair Trading (Retirement Villages Interim Code) Regulations 2002
3.Code of Practice prescribed1
4.Interim Code to remain in force for 6 months1
Schedule 1 — Interim Code of Fair Practice for Retirement Villages 2002
Division 1 — Preliminary
1.4Objectives of the Code9
1.5Resident’s basic rights10
Division 2 — Advertising and promotion of retirement villages
2.2Retirement village developments11
2.3Proposed facilities and services11
2.4Approvals for facilities that provide a high level of residential care11
2.5.Entry to Commonwealth funded residential care services12
Division 3 — What you should know before you enter into a contract
3.1Before you enter into a residence contract12
3.2Before you enter into a service contract14
Division 4 — The Contract
4.1Legibility and presentation requirements14
4.2Title and tenure16
4.4Services and facilities17
4.5Accommodation charges, entry contributions and refund provisions17
4.6Regular maintenance and service charges18
4.8Termination of residence contract and fees payable on termination19
4.9Residence contract to refer to this Code and the Retirement Villages Act 199219
Division 5 — Village management
5.1Administering body to create procedures for resident input20
5.2Input into management20
5.3Input into financial arrangements21
Division 6 — Dispute resolution
6.1Village Disputes Resolution Committee23
Division 7 — Termination of residence contracts
Appendix 1 — Copy of information statement for prospective resident
Appendix 2 — Checklist for prospective resident
Fair Trading Act 1987
Fair Trading (Retirement Villages Interim Code) Regulations 2002
These regulations may be cited as the Fair Trading (Retirement Villages Interim Code) Regulations 2002.
These regulations come into operation on 1 April 2002.
The Code of Practice set out in Schedule 1 and cited as the Interim Code of Fair Practice for Retirement Villages 2002 is prescribed under section 43(2) of the Fair Trading Act 1987 as a code of practice that applies in relation to retirement villages as defined in the Retirement Villages Act 1992.
The Interim Code of Fair Practice for Retirement Villages 2002 is to remain in force for 6 months.
(1)Except where the contrary intention appears, words and expressions used in the Code set out in Schedule 1 have the same meaning as are given to them in the Retirement Villages Act 1992.
(2)Boxed and shaded paragraphs in the Code set out in Schedule 1 are not part of the Code and are included only to assist readers of the Code.
This Code may be cited as the Interim Code of Fair Practice for Retirement Villages 2002.
(1)This Code applies to administering bodies and residents of retirement villages (whether existing or new).
(2)Except as provided in subclause (3), Division 2 does not apply to any contract, agreement or arrangement made or entered into prior to this Code becoming effective.
(3)If a contract, agreement or arrangement made or entered into prior to this Code becoming effective is silent on a matter with which the Code deals, the provisions of the Code apply.
The general principles guiding all those involved in the provision of retirement villages and related services are that —
(a)the wellbeing and interests of residents, together with the rights of administering bodies, must be given due consideration;
(b)the freedom of decision and action of each resident must be restricted as little as possible and must be recognised in the relationship between a resident and the administering body of a retirement village;
(c)the relationship of residents with their family and past and present communities is important and must be recognised, taking into account the cultural, religious and linguistic background of each resident; and
(d)residents must be treated fairly and not subject to abuse and exploitation.
The objectives of the Code are to —
(a)promote fair trading practices in the provision of retirement villages and related services by setting out the rights and obligations of residents and administering bodies in retirement villages;
(b)encourage fairness in the promotion, sale and operation of retirement villages;
(c)require the disclosure of all relevant information to a person who is considering entering a particular retirement village;
(d)require contract documents for retirement village accommodation to contain full details of the obligations and entitlements of the resident and administering body;
(e)facilitate resident input into the management of a retirement village; and
(f)establish appropriate mechanisms for the resolution of any disputes between residents and administering bodies or between residents.
(1)The administering body of a retirement village must respect a resident’s basic right to privacy in his or her personal accommodation, subject to the right of an administering body to inspect the premises as set out in the residence rules and the residence contract.
(2)The administering body must respect a resident’s basic right to quiet enjoyment of his or her personal accommodation and any communal amenities.
(3)The administering body must respect a resident’s basic right to complete autonomy over his or her property, and personal and financial affairs.
All promotional or sales material provided by the administering body of a retirement village about the village, whether in written or oral form, is to be truthful, accurate, unambiguous and entirely consistent with the provisions of this Code, the Retirement Villages Act 1992 and the Fair Trading Act 1987.
(1)All necessary consents to develop must be obtained from the relevant authorities before any sales promotion of a retirement village is undertaken.
(2)Subclause (1) does not preclude the carrying out of a market survey prior to any sales promotion.
(3)Where the consent to develop includes a requirement that the developer provide certain services for the life of the development, that requirement must be included in any promotional or sales material provided to the prospective resident under this Code.
Where any promotional or sales material provided by the administering body of a retirement village makes reference to proposed facilities and services in that village, the promotional or sales material must state the date of implementation and any conditions upon which the proposed facilities and services depend.
Any relevant licences or approvals from the Department of Health, Western Australia, or the Commonwealth Department of Health and Family Services to operate facilities providing a high level of residential care as defined in the Aged Care Act 1997 of the Commonwealth must be obtained before such facilities are promoted as being available to, or associated with, a retirement village.
Where any reference is made to Commonwealth funded residential care services (as defined in the Aged Care Act 1997 of the Commonwealth) in any promotional or sales material provided by the administering body of a retirement village, the following statement on the terms of entry to such services printed in 16 point type and boxed must be included in the promotional or sales material —
The owner of a retirement village must make the following information available, in writing, to a prospective resident of the retirement village at least 5 working days before the prospective resident enters into a residence contract —
(a)upon request, a copy of the following financial documents for the village (or villages where more than one village is controlled by the same organisation and separate financial statements are not maintained) prepared in accordance with Statements of Accounting Concepts and Accounting Standards published by the Australian Accounting Research Foundation —
(i)if the village is already operating, the previous year’s accounts and the maintenance fee for the current year;
(ii)if the village is under construction a projected budget;
(iii)if the financial information extends to projects other than the village, details of those projects;
(b)a copy of every contract required to be entered into in order to reside in the retirement village and details of any costs associated with entering into every such contract;
(c)a copy of any by‑laws of the body corporate under the Strata Titles Act 1985.
An administering body must ensure that the following information is given, in writing, to a resident proposing to enter into a service contract, or any other contract for the provision of facilities, with the administering body at least 5 working days before that person enters into the contract —
(a)the costs payable under the contract, including all recurrent charges and fees;
(b)details of the services or facilities to be provided under the contract;
(c)details of the notice and costs involved in terminating the provisions of the services or facilities.
(1)The residence contract and any other contract between an administering body and a resident of a retirement village must —
(a)be written in clear, concise and plain language; and
(b)be printed in a size not less than 12 point type.
(2)The following statement must appear in 16 point type and be included in the contract —
The residence contract must fully disclose —
(a)the legal basis of occupancy (e.g. whether the resident is purchasing or leasing the property or occupying the property under licence);
(b)the type of occupancy (e.g. self‑care or serviced unit); and
(c)the length of time the resident is entitled to reside in the village in return for payment under the contract.
(1)All residence contracts must contain a description of the fixtures, fittings and furnishings which are intended to be or are provided in the accommodation unit.
(2)The residence contract documents for a retirement village under construction must contain —
(a)plans that show the location, floor plan and significant dimensions of the accommodation unit; and
(b)plans showing the location, size and other features of any separate carport, garage, storage or other area allocated to the resident.
(3)The residence contract documents for an existing retirement village must identify —
(a)the specific address of the residence to permit easy identification; and
(b)facilities such as carport, garage, storage or other area allocated to the resident.
(4)Upon request, a map showing all buildings and grounds forming common property is to be made available to the resident by the administering body.
Contracts between an administering body and a resident relating to a retirement village must state —
(a)all services and facilities that are provided by the administering body and any separate charge for their use; and
(b)where a service is provided by an independent agency, any potential restrictions on access to that service (e.g. some services may have eligibility criteria or waiting lists).
(1)All accommodation charges (i.e. any payment that is required to secure an accommodation unit in a retirement village) must be specified in the residence contract together with a resident’s right to a refund, if any, on termination of the contract.
(2)The contract must state clearly the method of calculation of the refund and when it is to be paid.
(3)The contract must state clearly any fees or commissions charged by the administering body on termination of the contract and detail the method used to make the determination.
(4)If there is no provision for a full refund (less fair and reasonable administration and sales, and refurbishment costs) within the first 6 months, the following words must appear in the contract and be printed in not less than 16 point type and boxed —
The residence contract and any other contract between an administering body and a resident of a retirement village must state —
(a)when maintenance fees are to be paid and what will be provided for those fees;
(b)the recurrent charges for the village’s current financial year and the basis for the future determination of those charges;
(c)any regular maintenance or ongoing charges for which the resident will still be responsible if the resident leaves and the accommodation unit is not resold, re‑leased or reoccupied; and
(d)who is responsible for the cost of replacement and maintenance of fixtures and fittings related to the accommodation unit.
The residence contract must contain the following information regarding relocation or transfer of residents from self‑care units to other accommodation units within the village —
(a)the circumstances under which the resident can transfer or be relocated;
(b)the financial arrangements which would apply in the event of such a transfer;
(c)who is responsible for any regular maintenance or ongoing charges levied against the accommodation unit from which the resident will have moved.
(1)The manner in which a resident may terminate a residence contract after the expiration of the cooling‑off period (including who is to be responsible for regular maintenance and other charges during a period of vacancy) and all fees that are payable by a resident on the termination of the residence contract must be clearly set out in the residence contract.
(2)The residence contract must contain a statement of the powers of the Retirement Villages Disputes Tribunal to terminate a residence contract and a statement that the administering body cannot terminate the contract without the agreement of the resident or Tribunal.
(1)The residence contract must draw the resident’s attention to the existence of this Code and the Retirement Villages Act 1992.
(2)The residence contract must clearly disclose the right of a resident to —
(a)rely on the provisions of this Code to have input into the administration of the retirement village (see Division 5 of this Code);
(b)have disputes heard by the retirement village’s Village Disputes Resolution Committee and to make complaints to the Department of Consumer and Employment Protection for investigation and attempted resolution (see Division 6 of this Code); and
(c)in some cases, have access to the Retirement Villages Disputes Tribunal should the dispute remain unresolved (see Division 7 of this Code).
The administering body must create appropriate procedures to provide residents with access to management information and allow input, where desired by the residents, into the future planning and budgeting of a retirement village.
Procedures established by the administering body must allow for residents to —
(a)have input into any change to services or facilities that may involve either increased costs to residents (beyond those agreed to in the retirement village’s budget) or loss of amenity by the residents;
(b)have input into any plans for expansion of the village;
(c)contribute to the formation of a Village Disputes Resolution Committee; and
(d)contribute to the establishment, amendment or addition to the residence rules (see clause 5.4).
(1)Procedures established by the administering body must allow for residents —
(a)to be able to have input into the budget for each financial year;
(b)to be able to have input into proposals for the upgrading of buildings, fixtures or fittings where the residents are financing either the whole or part of the capital or recurrent costs of the work;
(c)to be able to convene an annual meeting of residents for each village within 5 months after the end of each financial year; and
(d)to be provided at the annual meeting with a clear written presentation of the financial position of the village (or villages where more than one village is controlled by the same organisation and separate financial statements are not maintained) including —
(i)accounts of actual expenditure; and
(ii)information explaining fee increases, upgrading of facilities and any changes or additions to existing services.
(2)Where specific issues are to be discussed at the meeting of residents under subclause (1)(c), the administering body must, within a reasonable time prior to the meeting, make available to each resident an agenda setting out those issues.
(3)If the residents, by majority resolution, request that the accounts provided to the residents under subclause (1)(d)(i) be independently audited, the administering body must ensure that as soon as practicable —
(a)the accounts are so audited; and
(b)the audited accounts are provided to the residents.
(1)An administering body must establish a set of residence rules (which may consist of strata scheme by‑laws) covering the obligations of residents.
(2)The rules must be —
(a)consistent with this Code and the Retirement Villages Act 1992; and
(b)in sufficient detail to provide the means to avoid and resolve disputes.
(3)Each resident of a retirement village must comply with the residence rules of that village.
(1)The administering body of a retirement village must establish a Village Disputes Resolution Committee to hear and mediate disputes that arise within the village —
(a)if the village was operating before the commencement of this Code, within 90 days of the commencement of this Code;
(b)if the village commences operating after the commencement of this Code, within 90 days of the resident entering into occupation of the retirement village; or
(c)if a dispute occurs before the time referred to in paragraph (a) or (b), within 10 days of a dispute occurring.
(2)The Village Disputes Resolution Committee must consist of 3 persons, namely —
(a)a person appointed by the residents;
(b)a person appointed by the administering body; and
(c)an independent person appointed by the persons appointed under paragraphs (a) and (b),
none of whom is a party to the dispute.
(3)If in a particular dispute a Committee member has a conflict of interest, the member is disqualified from hearing the dispute unless, after the member has made a full disclosure of the conflict of interest, the parties to the dispute consent to that member hearing it.
(4)Where a Committee member is disqualified from hearing a dispute under subclause (3) a replacement for the member must be appointed as soon as practicable.
(5)Where residents or the administering body, or the resident and the administering body, as the case requires, fail to appoint a person to a Village Disputes Resolution Committee within 21 days after being required to do so under this Division the Minister may —
(a)in the case of the person to be appointed by the residents, appoint a person from a list of persons willing to be so appointed, kept by the Department of Consumer and Employment Protection;
(b)in the case of the person to be appointed by the administering body, appoint a person from a list of persons willing to be so appointed kept by the Retirement Villages Association of WA or Aged and Community Services WA; and
(c)in the case of the independent person, appoint a person from a list of persons willing to be so appointed kept by the Office of Seniors Interests,
and any person so appointed is to be considered as having been nominated in accordance with subclause (2).
(1)The administering body and residents of a retirement village must determine a charter for the Village Disputes Resolution Committee of that village (i.e. how the Committee is to be established, how applications to the Committee are to be made and the procedures for conducting a hearing before the Committee).
(2)Where the administering body and residents have not agreed on a charter, the standard charter prepared by the Department of Consumer and Employment Protection is to be considered the charter.
(3)Where a dispute arises within the charter, either a resident or the administering body may apply to the Committee to have the matter heard.
(4)The Committee must meet as soon as possible after being notified of a dispute and hear the dispute in accordance with the charter.
(5)After hearing a dispute, the Committee must advise the parties to the dispute of its decision, in writing, within 10 days of the hearing.
(6)If a dispute is not resolved by the Committee, either party to the dispute may seek the assistance of the Department of Consumer and Employment Protection whose officers may attempt conciliation or take other appropriate action.
(7)If the Committee determines that a dispute cannot be resolved by it, the Committee must advise the applicant to apply to the Department of Consumer and Employment Protection or the Retirement Villages Disputes Tribunal (see Division 7 of this Code).
Under section 13(2) of the Retirement Villages Act 1992 the owner of residential premises in a retirement village is required to provide the following information to a person at least 5 working days before that person enters into a residence contract.
THE OWNER MUST ANSWER EACH OF THE FOLLOWING QUESTIONS IN WRITING BELOW EACH QUESTION —
1.What costs will be payable to enter the retirement village?
2.What recurrent charges or fees will be payable and what method is used to determine those fees? What are the components of the maintenance fee?
3.By what percentage did the maintenance fee increase during the previous financial year?
4.What are the arrangements and fees for any necessary insurance cover?
5.What provision is there for a sinking fund for major maintenance and replacement?
6.Can the prospective resident be liable for any additional or extraordinary charges? If so, under what circumstances?
7.What arrangements exist for a resident to have input into the administration of the village, including the making of residence rules and the setting of fees and charges?
8.What are the rights of the prospective resident to compensation for capital improvements made to the accommodation unit at the resident’s expense?
9.What services will be provided for the fees payable?
10.What additional or optional services are provided and at what cost?
11.Is there a service contract already in existence which will bind the resident? How can the service contract be varied or cancelled?
12.What restrictions will there be on the resident in the use of his/her accommodation unit and the village facilities in regard to —
·having someone else live with him/her?
·having visitors, including short stay guests?
13.What type of public, private or village transport is available to residents?
14.What are the qualifications and experience of the retirement village’s senior management?
15.Does the prospective resident have to supply a medical certificate or report to certify his/her ability to live independently?
16.Will the prospective resident have to provide documentation of his/her medical condition and medications? If so, who will have access to it?
17.Is there an emergency call system? If so, when is it monitored? Who is responsible for responding to the calls?
18.In the event of an emergency who will be called and how will they gain access to the unit?
19.If hospitalisation is required where will a person normally be taken?
20.If hospitalisation or nursing care is required, how long will the prospective resident’s accommodation unit be kept in the name of the resident?
21.In the event that hospitalisation or nursing care is required, what ongoing costs would the prospective resident incur with his/her existing unit?
22.What costs are associated with moving to and living in alternative accommodation within the village?
23.In what circumstances would the prospective resident be required to move to alternative accommodation within the village or be transferred or relocated?
24.If the accommodation unit is still under construction, can the prospective resident have input into the design, construction or furnishings of his/her unit?
25.What entitlement does a resident have to a refund of deposit monies if a village (planned or under construction) is not completed?
26.What protection will the prospective resident have against a loss of rights (including accommodation rights) if the village is sold to another organisation?
27.Are there any restrictions on the sale of an accommodation unit (e.g. sole agency)? What happens if there is a dispute over the sale price?
28.Under what conditions can the residence contract be terminated and at what cost? (The conditions must include the procedures to be followed under the Retirement Villages Act 1992.)
29.What fees will be payable by a resident on termination of the residence contract? (This must include who is responsible for regular maintenance and other charges during a period of vacancy.)
30.What is the refund entitlement if the residence contract is terminated? (Include any fees or commissions charged by the administering body on termination of the contract and detail the method used to make the determination.)
31.To enable me to compare the financial packages offered by different retirement villages, what would be the final return due after, say, 1, 2, 5 and 10 years?
Signature of owner:
1This is a compilation of the Fair Trading (Retirement Villages Interim Code) Regulations 2002 and includes the amendments made by the other written laws referred to in the following table.
Fair Trading (Retirement Villages Interim Code) Regulations 2002
26 Mar 2002 p. 1699-738
1 Apr 2002 (see r. 2)
These regulations expired on 30 Sep 2002 (see r. 4 of these regulations)