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Key Practice Areas
A retirement village is defined under the Retirement Villages Act 1999 (“the Act”) as the “premises where older members of the community or retired persons reside, or are to reside, in independent living units or serviced units, under a retirement village scheme.
Retirement village facilities are designed to meet the needs, services, lifestyle choices and social activities of retired persons. The facilities are generally managed by commercial operators, but in some instances are managed by community-based organisations, such as religious or ethnic associations.
It is important to note that retirement villages do not include manufactured homes, nursing homes or mobile home or caravan parks which operate under different legislation.
Retirement villages are a popular choice for many Australians looking to downsize. However, buying a residence in a retirement village is a major financial decision which needs careful consideration and is more complicated than buying other types of residential properties.
The Potential Costs
The costs incurred from selecting a retirement village can include:
an initial entry price when you move in;
- village operator’s legal costs (plus costs to register the lease),
- recurring service charges during your residency (usually on a monthly basis),
- resale and reinstatement fees, and
- exit fees when you leave the retirement village (service charges may continue for up to nine months from date of exit).
The First Step
When you express an interest in a retirement village, the village operator must give you a “Public Information Document” and residence contract.
It is important that you obtain independent legal advice on this document as it explains the costs, your rights and obligations and the legal structure for the retirement village.
Will I Own the Unit?
There are three main types of tenure which include freehold, leasehold and licence. With most retirement villages, you don’t own the title like you would with your home, but instead you have a right to occupy the dwelling and as such leasehold is the most common form of tenure with retirement villages. A lease terminates automatically on the death of the surviving resident or when the unit is on-sold to a new resident.
However there are some schemes that offer freehold title but you have to remember that although you own the property you are still restricted in dealing with the property.
Generally, the operator will lodge a caveat over the property and you will require consent of the operator to deal with the property. For example, you are not able to take out a mortgage or sell the property without the operator’s consent.
Once you have signed the contract, there is a 14 day cooling-off period. For contracts subject to a particular event, or another contract being entered into, the 14 day cooling-off period will begin either when the event occurs, or when the other contract is entered into.
There are no penalties for withdrawing your contact within the 14 day cooling-off period.
Capital Gains or Loss
It is important that you ascertain at the outset your entitlement to any capital gain when you leave the village, or your liability to bear any capital loss. This is not regulated and it comes down to whatever the village contract states.
The village may receive 50% of any capital gain.
In some cases there is no provision for capital gain or loss. You have to check the contract for this. In a recent sale of an accommodation unit on a resale price of $600,000 the outgoing resident received total funds of around $356,000 after deduction of the exit fee based upon:
- 33% of original ingoing contribution $148,000,
- capital gain $76,000,
- reinstatement costs $4,000,
- costs of sale $11,000,
- levy adjustment $4,000, and
- legal and registration fees of $1000.
Retirement Village Disputes
If you find yourself in a dispute with your retirement village operator, you must follow the formal dispute resolution process set out under the Act.
The Act specifies the following steps must be taken:
- provide written notice of dispute and nominate date for meeting (meeting date must be at least 14 days after written notice is provided),
- wait for a written response (within seven days of written notice being provided),
- if not resolved at the meeting, lodge a formal dispute with Queensland Civil and Administrative Tribunal (“QCAT”) and request mediation, and
- if not resolved at mediation, apply to QCAT for a hearing to be held.
If you are subject to threatening or fraudulent behaviour from a retirement village operator, you can apply directly to QCAT for a hearing.
Disputes between retirement village residents are subject to the public and private nuisance laws.
How We Can Help
It is essential to obtain legal advice before you buy a retirement village unit in order to be fully informed of all the costs and issues which may arise and ensure there are no surprises later on. When you have been provided with all of the information you can then make an informed decision on whether buying into a retirement village is the right lifestyle choice for you.
Why Choose Us?
You will be talking to a real expert, local to you. You will not be treated like another file number, but as a real person, and a person going through a difficult and stressful experience. Get expert advice, not just what you want to hear in a language you can understand with no legal jargon.
Our expert retirement village lawyers are available at any of our local offices.