Since 11 November 2019, changes to the Queensland Retirement Villages Act 1999 (the Act) require incumbent operators to prepare a transition plan when transferring ownership and control of a village. The plan should provide a clear, orderly and fair process for the transfer between operators.
In the months since introduction, the retirement village industry has faced many challenges due to COVID-19 and we suspect it unlikely that many villages have changed hands during this period. Now, as we begin to reopen the economy, any contracts transferring control of Queensland retirement village operations executed post 11 November 2019 need to ensure they do not overlook these new regulations.
In order to comply with requirements, existing scheme operators wishing to sell must provide notice about a proposal to transfer control of the village operations to the Chief Executive (Department of Housing and Public Works). Following this notice, a Transition Plan must also be provided within 28 days of this notice for approval with settlement subject to that approval.
The Transition Plan must include details about:
- the existing and new village operators, managers and landowners;
- how residents will be consulted and kept informed during the transition process;
- when the transfer of control will take place;
- timeframes for the handover period;
- the schedule for transition of operations, including general services and maintenance, personal services, and disclosure of mandatory payments due to former residents;
- the transfer of village financial documents and reports to the new operator;
- the transfer of control of capital replacement budgets, maintenance reserve and general services funds;
- any transfer of leases for other businesses or services operating in the village eg. hairdresser, café, etc.;
- impacts to the body corporate arrangements in the village; as well as any
- significant impacts to residents during or as a result of the transition.
The Department of Housing and Public Works provides a transition plan form to be completed for submission and approval, which we provide a link to at the end of this article.
Approval process for transition plans
The approval process aims to balance the commercial interests of village operators with residents’ interests and the effects the transition will have on residents home and quality of life. It requires the following to take place:
- The existing RV operator must give the chief executive notice of a proposal to transfer control of the village – see Form 11A, below.
- The operator is then required to be submitted a proposed transition plan to the chief executive within 28 days of providing notice, noting the chief executive may grant an extended notice period if required.
- If the chief executive is satisfied the plan provides a clear, orderly and fair process for transition, they will approve the plan. If not, they can request additional information from the operator or tell the operator to revise the plan.
During the approval process, the chief executive can share the plan with anyone they think has an interest in the transition, and will consider submissions from those people. This may include:
- former residents with a financial interest in the village
- families of residents
- anyone else who might be significantly affected by the transition.
Should an operator wish to revise an approved plan, they must make an application to the chief executive. Revisions to the plan will only be approved if the chief executive is satisfied that the revised transition plan provides for a clear, orderly and fair process for transitioning control of the retirement village.
The chief executive’s decision must be made within 90 days of the later of:
(a) the day the proposed transition plan is received; or
(b) if/where the chief executive reasonably requires further information either from the existing or new scheme operator for the purpose of making the decision, from the day the information is given.
Upon approval of the proposed transition plan, or a revision to an approved transition plan, each resident in the retirement village must be issued a Queensland Civil and Administrative Tribunal (QCAT) information notice for the decision, however at this time there is no provision in the Act to provide a right of review of the decision. The existing and new village operator are both responsible for the implementation of the approved transition plan.
Should either party wish to discontinue the transition of control of the retirement village scheme’s operation, they can do so by providing a notice Form 11B (below) to the chief executive.
Steps for residents
Residents may receive a copy of the transition plan if the chief executive thinks they have an interest in the transitioning of control of the retirement village scheme, for instance:
- will the new operator honour the terms of their residence contracts post-transition?
- what changes can they expect under the new operator’s model, and how might these impact them?
Once the transfer takes effect, the new scheme operator must within 14 days provide each resident of the retirement village a notice stating the scheme operator has changed, their contact details, and the date the transfer took effect.
To summarise, existing operators must ensure the proposed process for transitioning control of the retirement village scheme is clear, orderly and fair, and understand that both they and the new scheme operator are responsible for implementing an approved transition plan, and that penalties may apply under the Act where this is not done according to the approved plan.