Proposed reforms to retirement villages legislation in WA - Consultation Regulatory Impact Statement 4 - Managing changes to a retirement village

Part 18 explains that the RV Act is not sufficiently clear as to the land that is retirement village land.     

18.1: Capturing land used for amenities and services  

Part 18.1 proposes amending the RV Act’s definition of a retirement village to more clearly include land on which the amenities and services promised in a residence contract are provided.  It also proposes clarifying that amenities and services shared with non-residents will be part of a village when they are promised in residence contracts.   

18.2: Retirement village comprises a whole parcel/s of land  

Part 18.2 proposes amending the RV Act to provide that a retirement village must be the whole of any parcel/s of land on which any of the RV product (residences, amenities or services) are situated.  It also proposes amending the RV Act to state that the use of village land for another purpose does not impact its status as part of the village. 

18.3: RV Act memorial to describe land used for one village only and only one RV Act memorial per village 

Part 18.3 proposes amending the RV Act requirements for memorials to require that a single memorial must be used for each village and only one memorial is to be used. This will address problems in memorials describing multiple villages and multiple memorials being used for the same village.  It also proposes that the RV Act be amended to enable new village land to be added to an existing memorial (as this is one reason multiple village memorials are being lodged). 

Part 19 looks at the current restrictions in the RV Act for significant changes to a village which aim to protect residents’ interests.  It also looks at the different approval processes which currently exist in the RV Act for dealing with certain changes.  It notes that these restrictions can lock operators and resident into a built environment or product that becomes outdated over time and both operators and residents need a better process to manage changes that need to be made to a village. 

19.1: Single process for significant village changes 

Part 19.1 proposes that the RV Act be amended to provide a new single process for all significant changes to a village or the RV product.  The new process involves three proposed change categories (winding down an retirement village scheme (RVS), RV Act memorial correction and village redevelopment), resident consultation requirements and the State Administrative Tribunal (SAT) making all decisions and resolving all disputes that arise regarding the proposed change. 

19.2: Retirement village change categories 

Part 19.2 considers in more detail two of the proposed change categories – winding down a RVS and village redevelopment.  It proposes criteria for distinguishing between the proposed significant village changes in the village redevelopment category that require SAT oversight from those that do not, on the basis of: 

• complexity; and/or 
• residents’ ability to meaningfully protect their interests. 

This part also looks at resident relocation due to a significant change. 

19.3: Minimum consultation requirements 

Part 19.3 proposes six minimum requirements for resident consultation in the village change process:  

• notification to residents that a significant change is proposed; 
• provision of a draft implementation plan to residents; 
• consultation with the residents committee; 
• draft individual resident impact statements (where relevant); 
• at least one residents meeting; and  
• written responses to requests for information or suggestions from residents. 

20.1: Multiple sales contracts – pre-contract disclosure and cooling off 

Part 20.1 proposes amendments to the RV Act to clarify how precontract disclosure and cooling off requirements apply when residents sign more than one contract at different times, such as in off the plan sales.  

Part 20.1 also looks at recent amendments to both the Strata Titles Act 1985 (WA) (ST Act) and Sale of Land Act 1970 (WA) (SL Act) and possible confusion about when a RV premium (deposit) may be released and the circumstances in which a residence contract can be rescinded. 

This part proposes amending the RV legislation to clarify that: 

• pre-contract disclosure applies only to the first residence contract signed; 
• rescission rights apply to all contracts signed; and 
• the RV Act premium release obligations and rescission rights are in addition to any obligations under the ST Act or SL Act.   

21.1: RV Act and residential aged care residents 

Part 21.1 explains that the RV Act does not apply to a village operator or certain residents in village residential aged care facilities (RACF) when the operator is an approved provider under the Aged Care Act 1997 (Cth) (AC Act) and is receiving funding under the AC Act for the residential care that a particular resident receives.2  Under this exclusion it is possible that the RV Act applies to an operator and residents receiving care under the AC Act when the approved provider is a different entity to the village operator for RV Act purposes.  This part seeks feedback on whether this exclusion requires updating to reflect current village operating arrangements and recent changes to the AC Act.    

22.1: Dispute resolution 

Part 22.1 summarises the current processes that exist under the Fair Trading (Retirement Villages Interim Code) Regulations 2021 (WA) (RV Code) for resolving disputes between operators and residents of retirement villages.  The processes include the village dispute resolution process, conciliation and investigation of village disputes by the Department of Energy, Mines, Industry Regulation and Safety – Consumer Protection Division (Consumer Protection), and consideration of certain types of disputes by SAT and current powers to make orders.  

This part seeks feedback about how the current retirement village dispute resolution processes could be improved  It considers certain options, such as widening the jurisdiction of SAT to hear and resolve all retirement village disputes and make orders in relation to all disputes and the introduction of compulsory conciliation and/or mediation.

22.2: Building defects  

Part 22.2 seeks information to assess the extent of issues around building defects and whether a regulatory response may be required.  Residents have raised concerns that some operators are passing building rectification costs on to residents through recurrent charges, the imposition of additional levies, or deductions from reserve funds rather than pursuing the builder for rectification.  Issues may also exist with a lack of transparency by operators in providing relevant information to prospective and existing residents about known building issues, associated rectification planning and any relationships, if they exist, between operators and retirement village developers and builders. 

22.3: Insurance  

Part 22.3 notes that residents have reported that they can have difficulty obtaining information from operators about insurance arrangements in the village.  This can cause problems for residents who may find it difficult to determine what is included or excluded from their village’s insurance coverage, what insurance costs, including excess payable that they may be liable for, what changes may have been made to insurance and how and when to make an insurance claim themselves.  This part considers whether the RV legislation needs to require certain information to be provided about insurance to residents in or entering into a village.  

22.4: Strata title retirement villages 

Part 22.4 deals with the overlap between the ST Act and RV Act regulation in strata villages.  Strata title retirement villages are regulated under both the ST Act and the RV Act.  As some of this regulation overlaps, there may be some confusion in the community about which rules apply.  This part commences the process of clarifying obligations and rights by looking at three main areas where overlaps exist.  These include pre-contractual disclosure time periods, financial reporting requirements and village rules.  The possibilities for streamlining regulatory requirements are also discussed.  This part seeks feedback about the current overlaps, obligations, rights and problems.   

22.5: Provision of private home care services in retirement villages 

Part 22.5 explains that home care services enable older people to continue living at home rather than entering an aged care facility or nursing home.  These services are now also available in retirement villages to residents who require assistance with personal needs.  This part seeks feedback on whether any issues exist in the provision of home care services in retirement villages.  This part also canvasses views on the future direction of the retirement village sector.