Driveway Pavers
Relaying (and purchase of new pavers) where existing pavers have subsided or cracked.

Painting
Repainting of interior or exterior of villa during period of occupancy (where contract does not require resident to maintain painting of unit).

Carpet & other floor coverings
Reinstalling floor surface during period of occupancy, where existing floor covering is failing (where resident contract does not provide for resident to replace floor covering).

Capital Replacement
Repaving of driveway for aesthetic reasons.
Repainting of unit on termination as part of refurbishment costs (where resident contract does not require resident to pay for repainting of unit).
Resurfacing of unit on termination as part of refurbishment costs (where resident contract does not require resident to resurface floor).

5^th para. "Recognised" guidelines will not be in compliance with the Act because the Act does not require them. This Association has been criticising the lack of guidelines since the Act was a Bill. We agree that there should be guidelines, which we believe should be set out in Regulations as comprehensively as possible despite the difficulties of catering for everything. We do not, however, accept that the industry, as represented by ACQ, should be the arbiter of them. We have the following observations to make on ACQ’s draft.

Types of Expenditure
The examples are too obvious and do not begin to resolve the issue.

1. Capital Improvement
A new barbecue area or a new pathway, or extensions thereof, are capital improvement but are often charged to residents’ funds. Alterations to kitchens and bathrooms when Unit is vacated is capital improvement but is sometimes charged to residents’ funds and sometimes to ex-resident as reinstatement costs.

2 Capital Replacement
The building, installation or acquisition of everything in the Village is the operator’s income producing capital . It follows that anything which is replaced is capital replacement and chargeable therefore to the capital replacement fund, the fund established for that purpose. Although the tax rulings (TR 97/23) do not provide a clear distinction between repair and replacement, (" there is no one correct test for what is a subsidiary part and what is an entirety") it is clear from Section 38 of that ruling that all the fittings and fixtures in a Unit, e.g. water heaters, stoves, lights, air conditioners, garbage disposal units, are entireties.

3 Maintenance - more properly "Repairs and Maintenance"
The concern of residents is that things which are, as we argue above, replacements of the operator’s capital are being treated as repairs, for the obvious reason that residents pay for repairs and operators pay for replacement. And capital items will be repaired beyond economic repair for that reason unless residents have some say in the propriety of expenditure. Gardening costs, whatever description they are given, are operational costs, not repairs to or maintenance of capital items and are thus not chargeable to the MRF.

4. Operating Expenses
This category includes any otherwise acceptable (including acceptable to residents) expenditure not included in the above three categories. We insist that legal fees, advertising, any promotional activity, costs of accreditation, for example, are not operational expenditure; they cannot be encompassed by the definition of general services charges at Section 12 (3) of the Act.

DEFINITIONS OF MAINTENANCE & CAPITAL
What ACQ fails to recognise, as we have repeatedly pointed out to the Dept. of Fair Trading, is that in the context of who pays for what in a retirement village, difficulties do not arise between what is replacement and what is maintenance. It is a question of replacement versus repair and when the former can be classified as the latter The Courts have not set precedents in simpliciter. As in any case law, decisions have addressed particular cases from which further cases are often distinguished. This is evident from the Ruling on which ACQ have largely drawn. –TR 97/23.

INDICATIVE TESTS
Following the "entirety" ruling in TR 97/23, we agree with the example of a ride-on mower and its rotor blades, which can and should be extended to much more common situations: Replacement of an element in a stove is a repair, chargeable to the MRF; replacement of the stove is chargeable to the CRF. Replacement of an anode or valve in a water heater is a repair and chargeable to the MRF. Replacement of the water heater is capital replacement and chargeable to the CRF. Replacement of blades in a garbage disposal unit is repair, replacement of the unit is replacement chargeable to the CRF.

Should I Repair or Replace an Asset?
What is written under this heading completely ignores the economic interests of the residents.

Economic Life of an Asset
This is of no significance in determining who pays for what and how often. It has relevance only in relation to deductibility under one or other Section of the Income Tax Acts.

8. This trend towards making residents responsible for everything must be halted and reversed. Anything which is in a Unit when leased to a Resident belongs to the Scheme Operator, anything which Residents cannot take with them when they depart belongs to the Scheme Operator, anything which the Act obliges Scheme Operators to insure (which includes Accommodation Units and necessarily fixtures and fittings therein), (RV Act S.109), belongs to the Scheme Operator. Any thing on which the scheme operator is able to claim depreciation or deductions under the Income Tax Acts belongs to the scheme operator. Anything owned by the scheme operator is his responsibility to maintain, repair and replace. The Act must make it clear that maintenance, repair and replacement may in no circumstances be charged to lessees or licensees individually. We believe that the provisions of Section 105(1)(b) of the Property Law Act, 1974, should apply to Retirement Village leases and licences but that those leases and licences not be allowed to contain contrary agreements. The lessee’s responsibility should be confined to "looking after" the lessor’s property.

9. The question arises that since residents, through their funds contributions, pay for everything anyway, why try to make them pay for maintenance, repairs and replacement personally? The answer is that it reduces the scheme operator’s liability for capital replacement and in respect of repair and maintenance and other expenses it allows the MRF and GSF to be held as low as possible for the purpose of attracting new residents, who will be unaware of the hidden repair and replacement costs.

10. Summary of ARQRV Position|
(i). The Act must make it clear that anything in or on an accommodation unit when leased or licensed to a lessee or licensee is an item of capital, the property of the

scheme operator and that replacement, at any time, is capital replacement.

(ii). The Act should also provide that except where damage or wear is deliberately or negligently caused by a resident, maintenance, repair and replacement costs are to be charged to either GSF, MRF or CRF and in no circumstances, including under reinstatement costs, to be charged to or recovered from residents personally.

(iii) That the Maintenance Reserve Fund not be a part of the General Services Charges and be removed from inclusion under S. 107 of the Act.

Budget Setting
1. Residents should have some input into how their money is to be spent; it is not acceptable simply to be told, as is at present generally the case. As any Public Servant can testify, forward estimates must be submitted long before the current year’s entire expenditure is known! We see no good reason why the Queensland Act should not contain directions comparable to Part 7, Division 5 of the NSW Act.

2. It would be an advantage for residents if reports on the General Services Fund were available quarterly, on request, as are reports on the MRF & CRF. However, simply to state what has been spent is insufficient. We need prior budgetary agreement on all three, in sufficiently detailed format, and then quarterly reports in the same format so that expenditure may be compared with budget. This also requires that the budgetary format includes notes indicating the periodic, significant payments e.g. rates and insurance premiums.

3. This is not unduly onerous and would probably result in fewer questions. The more informative the accounts, the greater their transparency, the greater the trust of management by residents. To the lack of which trust and its reasons the Disputes Tribunal has frequently drawn attention. Early comprehensive involvement in and agreement on the budget and detailed quarterly reports, and a signed declaration of accuracy by the scheme operator, including end of year final accounts, should make it unnecessary to furnish residents with audited accounts, which audits are generally a special purposes report, full of reservations and disclaimers and of no real value. An expense which residents would be saved. The 1988 Act provided that residents could decide to dispense with audits; the 1999 Act does not do so but should allow that.

4. If at any point during a financial year expenditure on the GSF has exceeded what residents have contributed up to that point, it is not uncommon for the scheme operator to make "a loan", at interest, to the residents’ funds to cover the deficit. Such provision is often in the residence contract. Residents should not be expected to pay in that way for what can be simply bad management. Accurate annual estimates and cash flow are the business of the scheme operator in running his income producing enterprise; they are not the responsibility of residents They cannot be described as a service provided to residents and residents should therefore not be expected to pay for them.

5. It is fairly common for scheme operators to budget for a surplus and to accumulate a surplus over a period of years. This can be used to absorb increases in costs in excess of the CPI without having to refer to residents. Surpluses should not be accumulated in that way.

Summary of ARQRV Position
(i). Act to provide that Residents have the right to be involved in setting the following year’s budget.

(ii). Act to provide for quarterly reports on all three Funds.

(iii) Act to provide that residents are not to be charged interest on loans made to their General Services Fund. (The Act does not allow it for the MRF)

(iv) A surplus in any year is to be carried forward as residents’ contributions in the following year.

Payment of General Services

Charge After Unit Vacation
1. The ARQRV’s position is that the period over which ex-residents should be required to continue payment of recurrent charges should be capped at six months. We regard the 90 day provision as not nearly enough and deplore its confinement to post 1 July 2000 contracts. But it is also the ARQRV’s position that the non payment of Exit Entitlement should also be capped at six months. ACQ regard such capping as penalising scheme operators. Not to cap penalises departing residents. So we should examine those relative penalties and conclude who is best able to absorb them.

2. The Act requires that the departing resident vacate the Unit before there can be any requirement to pay the exit entitlement. After vacation, the Act, Part 3 Division 5, prescribes a host of matters which are going to delay payment of the Exit Entitlement.

If the ex-resident moves out to live somewhere else, how does he or she or they pay for their next accommodation? It is unlikely that some elderly resident will be able to get or afford an indefinite bridging loan. What if the ex-resident needs to go into an aged care establishment? How will they pay the up-front fee if there is one? Or pay it off in instalments? How will they be able to pay for their keep at the establishment and continue to pay the ongoing fees at their erstwhile village residence? And their exit entitlement still unpaid! Who is best able to cope with the costs of that situation?

3. If there were a cap on the ex-resident’s liability to continue payments, and on the delay in paying Exit Entitlements, the scheme operator would have an inducement to attend to everything expeditiously; that urgency is certainly not apparent at present. The scheme operator would start proceedings as soon as he knew the resident was about to leave. He would seek the necessary agreements quickly and get the work done quickly. He would not delay matters until he had induced the resident to agree to some reconstruction costs. All would get done in time to have it ready for occupation well within the six month cap. Contrary to what ACQ have observed, there would be nothing illusory about the benefit for residents wishing, or having, to leave the village.

4. The sale of a "right to reside" is entirely within the scheme operators gift. The resident is entirely dependent on him. References to tightening up, stricter obligations on both sides, and fast tracking applications to the Tribunal are simply red herrings. We are wasting time.

Summary of ARQRV Position
(i) Continuing payment of both GSF and MRF to be capped at six months following vacation of Unit.

(ii) Repayment of ingoing contribution to be made not later than six months after vacation of the Unit. We accept delay of payment of capital gain until Unit is re-leased or re-licensed.

(iii) Exit fee, for all residents, not to accumulate beyond date of vacation of Unit.

Access to Disputes Tribunal
There was a remark at the 21st May 2002 meeting that "….residents who become a party to a representative action should undertake to be bound by the eventual out-come." This presumably means by Orders by the Tribunal. Such orders are binding on all and cannot be appealed except on a point of law. Such appeal has been launched by one scheme operator in the Supreme Court. That right of appeal cannot be denied to residents.

We do not believe that S.173 should be removed. It cannot be taken for granted that another resident or residents will take a matter up on behalf of a complainant, which may involve substantial legal costs. S.173 contemplates the physical, mental or financial state of the resident and also applies to an ex-resident. S.173 should stay.

Lawyers for scheme operators frequently try to prevent the hearing of an application to the Tribunal on technical grounds. It is difficult for the Tribunal to resist some of the objections because of the wording of the Act. The need to try to settle a disagreement at the village is not unreasonable but there is always such attempt by the resident(s) and those attempts are often ignored by scheme operators. It is often their failure to respond which gives rise to the dispute.

An application by a resident alleging breach of the Act is not a question for mediation. Either the Act has been breached or it has not. In our view, the initial step should be an application to the Tribunal for a hearing and it should be up to the Tribunal Chairman to decide, perhaps at a directions hearing, whether or not there is a possibility of successful mediation. If mediation fails then the matter is heard by the full Tribunal.

We believe that there should be one fee for an application, not one for mediation and then, if that fails, another for a Tribunal hearing.

We are also of the view that the Tribunal should be less formal, particularly in relation to rules of evidence. Residents should not be discouraged from presenting their own cases or disadvantaged because of their failure technically to properly present it. The Act already provides for a degree of discretion by the Tribunal Chairman, which has been used, but perhaps that discretion could be extended. Lawyers should not use rules of evidence or any procedural rules to counter or prejudice a resident’s case.

Freehold Villages
To include freehold villages along with other tenures in the same Act of Parliament is virtually impossible without taking them completely from under the BC&CM Act and removing them from all vestiges of strata title. That seems to be literally impossible. That part of the freehold scene which is the residents’ relationship with the owners of the lots on which the common facilities are to be found can be dealt with and has been dealt with by the Disputes Tribunal under the Retirement Villages Act. There needs perhaps to be a particular reference in Sections of the Retirement Villages Act to freehold schemes wherever there is description of or allusion to GSF, MRF or CRF and perhaps to other RV aspects.

But by far the greater number of problems, unaffected by the Retirement Villages Act, have always been and still are in connection with body corporate matters. In particular, the relationship between bodies corporate and body corporate managers. The problems in the past have stemmed largely from, as in other types of village tenure, ignorance by residents of the legislation and non-compliance with it by body corporate managers, service contractors and letting agents, mostly the same entities, the original owners.

Of particular significance has been the non observance, indeed the disdain, by managers etc. of S.92(3) and S.106 of the BC&CM Act. and similar provisions in the different modules. This was made quite apparent in the Residents v Parkhaven dispute which came before the Disputes Tribunal. Our view has been that those Sections, and Section 107 should be written in full in any contract between a body corporate and contractor.

Another problem is the multiplicity of bodies corporate in some villages. Amalgamation of those bodies is highly desirable but cannot be compelled. A retirement village module for retirement villages is not going to solve many problems. One cannot do much about the voting patterns, ownership and voting by corporate owners, or about the entitlements and schedules under Part 6 of the BC&CM Act. They cannot just be abolished.

ARQRV Position
(i) No legislative change of substance be attempted.

(ii) Expanded clarification in RV Act of application of Sections to freehold villages

(iii) Recital of S.92 and S.106 be made a part of any contract between Body Corporate and Body Corporate Managers or Service Providers or letting agents.

(iv) Those Sections of the Act to be permanently posted on village notice boards.

Above is what amounts to a restatement of the ARQRV position on a number of issues which had been discussed at a series of meetings between ARQRV representatives and owners’ representatives, notably Aged Care Queensland, and the Department of Fair Trading; meetings held during the tenure of office of the last ARQRV Executive Committee.

At a recent similar meeting convened by the Department of Fair Trading your ARQRV representatives were President, Phil Phillips; vice-President Keith Topham and Committee member Ivy Laundon. The meeting was to discuss a forty one page "Issues Paper", put out by the Department, canvassing the arguments and possible Government options in relation to some (but not all!) of the more salient issues which we had raised in our submissions to Government.

The President had produced an ARQRV paper in response to the Department’s Issues Paper, to be used by us during discussions. With the support and approval of the Executive Committee, that response, altered a little in the light of discussions at the meeting, is below. It is in effect another restatement of our position. We trust that we still accurately represent your views and aspirations.

Residents’ Participation
On becoming a resident, there is an entitlement, contained or clearly implied in the contract, to use the common facilities, including any hall in which it is possible to hold meetings. That is an entitlement for which residents pay, both by their in-going contribution and their recurrent fees; that use is not to be by grace and favour of or at the discretion of the scheme operator. The scheme operator has no right to insist that he must be present at any gathering or meetings of residents. To allow that is to deny residents a fundamental civil right.

Rights of Former Residents
This is wholly peripheral but residents’ meetings have no bearing on people’s financial interest in their erstwhile Unit. And Government should not intrude legislation into what is an entirely voluntary, entirely non-compellable, residents’ activity.

Ancillary Issues
Residents may or may not hold meetings, they may or may not elect a committee. They may have a committee one year and not have one the following year. Residents must be left to please themselves about such matters. Whether or not they have meetings, whether they have comprehensive records or none at all, is nobody’s business but theirs. It is a totally unacceptable Big Brother attitude for Government to require residents’ committees to keep records and it is totally unacceptable for the scheme operator to have a right to such records as are kept. 1984 has been and gone!

Notice of Resident's Meetings (Not Committee Meetings)
This is based on a false premise. S.132(1) refers to a meeting of all residents, not of the residents committee. It matters not what the committee’s view is, the decision is the residents.

Disputes Resolution Panel
The notion of a disputes resolution panel in the village is impracticable. It can’t include the scheme operator, it can’t include a party to the dispute and if it’s a dispute involving all residents, which could be the case, then it can’t include a resident. If a resident or residents have a dispute with the scheme operator then they will attempt to discuss and resolve it with the scheme operator. If it cannot be resolved to the satisfaction of the resident(s) then it goes to the Tribunal. There will never be a bona fide "village disputes resolution panel". If there were and it decided against the scheme operator then the scheme operator would simply ignore it. S.83 should be removed.

Improvement Costs
Our overarching view is that Capital improvement should never be charged to residents; any improvement becomes and remains part of the scheme operator’s income producing capital and as such it becomes his responsibility.

Removal from Residents’ Committee
Requiring a 75% majority to remove a committee member will not add to the stability of a committee and may even detract from it. Election of members is not a matter of majorities. In any case this three quarters majority should not be imposed. It is, again, for the residents to decide. A simple majority is a simple solution. Reference to a special resolution in this context should be removed. Government would not attempt to tell an unincorporated association how to vote and conduct its meetings and should not attempt to do so with retirement village residents

Power of Attorney
We believe that if proxies are admitted then Powers of Attorney must be. We must observe, however, that residents with such limited capacity should probably not be residents.

Votes per Unit
We are emphatically opposed to one vote per Unit. In Federal and State elections it is one vote per person, never mind how much tax one pays, in Municipal elections it is one vote per person even though a household of several may only pay the same rates as a single ratepayer. We vote as persons, not as family units. There is no vestige of a reason why residents in a retirement village should not have the same voting rights and it is a decision for the residents. Government should not intrude. Neither should scheme operators. If it were one vote per Unit, who would be able to exercise the vote? On what basis would that decision be made? Any such rule would be likely to infringe the Anti-Discrimination Act. This, again, is Government trying to tell people having private meetings how they should conduct them.

Setting Budgets
What is contained here skirts around the issue. Residents want to be involved in the budget setting process, not merely given a copy to comment on two weeks before it is implemented. Option 3 seems to have strayed from budgets to financial statements. No action by or involvement of residents should in any way be dependent on there being a residents’ committee because there may not be one. Anything which must be supplied to a residents’ committee must be available to any resident.

Ancillary Issue
We applaud this attitude. We believe that the Department (or the ARQRV!) should produce a pro- forma set of accounting papers to which scheme operators must adhere.

Classification of Expenditure
What follows refers only to lease/licence type tenures.

Ancillary Issues
Accelerated wear. In the expression suggested it should surely be "unusual". I believe that the expression "fair wear and tear" has an accepted meaning, it is used in some Acts. Why not refer to accelerated wear as that which is in excess of fair wear and tear.

Unit fixtures and Fittings
In no circumstances and at no time (except their negligent use) should residents be liable for replacement of capital items. Reference to items that are a resident’s contracted responsibility in the schedule should be removed. Not to do that is simply an invitation to scheme operators, of which they are already taking advantage, always to make such provision in future contracts and to use that to strengthen their claim that it applies to present contracts which do not actually specify that. Fixtures and fittings are the owner’s capital and their replacement must unequivocally be capital replacement and denial of that should not be allowed.

Misuse of MRF
We do not advocate increasing the penalty, (for anything) we just hope that one day a penalty will be imposed. When has there ever been a prosecution under this Act If prosecutions are not to be launched then don’t prescribe penalties.

Quantity Surveyor's Report
"Have regard for" "seriously consider" "strive to implement" all subjective expressions incapable of being enforced or monitored. The whole of S 98 gives the scheme operator unrestricted discretion. Furthermore, it is the scheme operator who commissions the quantity surveyor!! Residents have no say at any stage. S. 98 should be completely rewritten to deny the scheme operator complete control and to involve the residents in the issue of what may be charged to the MRF and what allowances are to be made for repairs and maintenance. Because the scheme operator has so much discretion is the reason why we believe it should be removed from S.107 to S.106.

MRF Contribution for Vacant Units.
We agree with the proposed alteration of the Act but it misses important points. First, How are residents to ensure that the scheme operator is paying in respect of Units that have never been occupied? The operator is likely to wait until he has a resident before getting a "fit for occupation" certificate.

General Services Charge
It is of some importance to note that apart from insurance premiums, greater than CPI increases may be imposed without residents’ agreement only if the increases are levied under an Act, (S.107). Because the Act (Retirement Villages 1999) gives a scheme operator so much discretion in determining what residents must pay into the MRF, we believe it should be removed from S. 107 to S.106. In that way there would be an automatic restraint on excessive increases in charges.

Perfunctory Application of CPI Increases.
This is the rule rather than the exception. Indeed it is universally applied despite the fact that S.106 does not provide that automatic increase. This issue paper seems to accept the automatic application of the CPI movement although it is supposed to be a ceiling.(S.106) unless residents agree to it being exceeded. But scheme operators generally do not treat it as such. We reject the automatic increase by the CPI movement, as does the Act. We, too, do not like Option 1, but neither do we like Option 2. Codes of practice are the rules you have when you are not having rules, ie legislation.

If what we propose in relation to the budgetary processes is implemented then the validity of increases, including reference to the CPI, can be determined at that stage. Increases must be justified. Because if increases in the cost of melons or socks or education or beef or dentistry has driven the CPI up, it does not mean a thing in a retirement village context. None of those commodities are the staple diet of a retirement village. (except where meals are provided, in which case it is user pays!) Our concern is: has the cost of electricity, telephones, gardening, fertiliser, stationery, postage etc. increased.

Ancillary Issues
We have not come across a situation where a new resident has been required to pay a higher GSC than is currently being charged to existing residents for the same services. There are differences based on size of Unit and on different rateable values.

New Villages
If an entrepreneur says these are the services that will be provided and this is what you must pay then he must be held to it unless the payment proves excessive. The scheme operator should not expect residents to underwrite his entrepreneurial risks. Another objection is that if the scheme operator knows that shortfalls in the "initial stages" (how long is that?) can be recovered from residents he will pitch the advertised fees lower than is reasonable in order to attract residents.

Staggered Development
How is it proposed to amend S.108(2)(b)? to achieve what? We continue to doubt whether a resident could be lawfully required to pay for a service for which he did not contract to pay simply because others, even all others, want that service.

Commencement of CPI increase.
The issue paper again accepts the perfunctory application of the movement in the CPI to the GSF charges, which we reject. Again, if our budgetary proposals are implemented there need be no problems with CPI. The Act should abandon the uncertain term: "in a particular year" (S.106) and make it refer to a financial year. As financial years overwhelmingly start at the first of July, reference to the Consumer Price Index and movements in it should refer to the indices at the end of the March quarter each year.

Inappropriate use of MRF contributions
MRF contributions are not General Service contributions. They are for quite different purposes and we believe that MRF should not be described as part of the General Services. That separation would not prevent their being collected at the same time and would make no difference to collection mechanisms.

Budget for General Services Charges
What other operational costs are borne by the operator? Again, there is this ineffable assumption that increases in the CPI indices are to be perfunctorily applied to our services charges.

Capping Residents MRF Contributions
Capping the residents’ MRF contributions may be arbitrary but so too is a decision not to cap, we do believe that the majority of residents are paying too much. There are two reasons for that:

2. Scheme operators have taken advantage of the legislation to extract contributions from residents to implement works which had been neglected and to keep the village in a state of repair and attraction that was not hitherto contemplated. It also precipitated a practice of charging to it expenses which were properly capital replacement, improvement even, and expenditure which clearly should have been charged to the GSF. To that extent it is being treated as an extension of the GSF. It is required by law was the plea of scheme operators and that was, in essence, though not in detail, true.

How might MRF contributions be capped? The higher the general services charge the greater, it may be reasonably assumed, the facilities and amenities and accommodation provided. The greater, it can also be reasonably assumed, the required program of maintenance and repair. That is to say that the MRF contribution may reasonably be seen to be closely related to the (real) GSF, and perhaps calculable as a percentage of the GSF. The task would be to find a reasonable percentage. We are going to suggest 15% as a starting point but are open to logical or factual persuasion otherwise. The advantage of this way of arriving at a reasonable MRF charge is that it is certain, it cannot be arbitrarily changed, or changed by a quantity surveyor being asked to have another go.

Ancillary Issues
Sub-standard items - It is logical but far from inevitable that substandard items will be replaced earlier. Capital will be repaired and repaired beyond economic repair because residents pay for repair but not for replacement. The same applies to village infra structure. Water mains, for example, are often poorly laid and burst pipes are not uncommon. So long as residents pay for repair, installation and materials used they are likely to be less than satisfactory.

Vacation of Unit
Notwithstanding terms used in the Act, let us be clear that surrendering the "right to reside" , "notice of termination" of contract are not very meaningful expressions. It matters not what notice is given, even by death, no lease or licence is ended until the ex-resident is "paid out".  In commercially operated villages the resident may "terminate the lease" but the resident’s name is not removed from the titles register until a new lessee has paid an in-going contribution. Ceasing to reside does not terminate the lease.

Reinstatement Work
None of this will achieve anything. An incoming resident with any sense will not pay up until the reinstatement is completed and if well advised will not sign an agreement until it is done. The status quo will remain.

Continuing Liability for GS Charges
We do not see how prescribing a 9 month period follows from the fact that most Units are "sold" within 12 months; most are sold after a lesser period. Why should the motive be to not affect the operator’s income stream? What about the residents expenditure stream? We do not see why a resident should be expected to pay at all after vacating the Unit, subject to reasonable, say three months’, notice, but we insist at present that the period should be no longer than six months.

Ancillary issues
It is eminently possible that there will be a longer period than two months between an ACAT recommendation and securing a place in an Aged Care facility. However we do not see a need to change anything. The two month period may expire but the resident is unlikely to be peremptorily evicted.

Reinstatement
This issue starts off in a way to which we take exception. "to address the wear and tear". It is our opinion that fair wear and tear should never be a resident’s responsibility. It is also the opinion of other Acts. Excepting fair wear and tear, then what is left? Except for resident negligence, replacement of carpet is capital replacement and part of fair wear and tear. Similarly, if there is indeed a need to repaint it is fair wear and tear.

We agree that the 30 day timeframe should be applied to both. This discrepancy in the Act has served on at least one occasion to prejudice an ex-resident’s interests at the Disputes Tribunal.

Controlling Right to Sell
We cannot see how this can apply to freehold Units. The holder of the freehold can sell whenever they like in whatever condition they like, apart from any Body Corporate rules on upkeep during occupancy. The scheme operator may well have a mortgage over the Unit to secure the Exit Fee, but does not control the right to sell. The only residence contract likely to be in place is one between resident and original owner or assigns in respect of the lots not owned by the resident or Body Corporate and on which amenities and facilities are located.

Use of Quote
And whilst the operator is in the process of going to the Tribunal, what is the ex-resident doing? Waiting for the exit entitlement to be paid. We do not see this as solving anything.

Exit Fees and Entitlements
The former is paid by the resident to the operator and the latter is paid by the operator to the resident. This is how they are referred to in the Act. Although the former is always contingent on the latter, the exit entitlement is not arrived at after deductions. Deductions, including the exit fee are deducted from the exit entitlement to arrive at the net payment to the resident. If we wish to describe the net payment, which is what the resident gets, we must choose a different word, not exit entitlement.

Ancillary Issues
Changes to P.I.D. The PID in place at the start of a residents occupancy does not change. Certainly PIDs issued to later residents are more onerous but since that is happening across the board it does not have a particular effect on any one village. PIDs do not materially change as a result of changes in the village. In our experience they change only to make them more onerous for residents.

Time to Pay Exit Entitlement
28 days is absurdly long., even 14 days is too long.. Why should the operator be allowed longer than it takes to clear the new lessee’s cheque, a few days. We believe they Act should be altered.

PID and Residence Contracts
A PID is not an evolving document. When issued to a resident it does not thereafter change and there is no reason why it should not be integrated into the residents contract. The PID is, after all, part of the contract (S.37.) One would have to ensure that the PID is identical with the one that was given to the prospective resident in the first place. Lease agreements usually have the "Document" attached to them and they contain much of what is in the PID, resulting in a lot of unnecessary repetition.

In considering the PID it should be remembered that a copy must be given to a prospective resident well before signing the contract. This provision must not be lost.

Ancillary Issues
Residents sign two documents. The application form, acceptance of which by the scheme operator becomes a contract and, later, the lease agreement. We believe that the cooling off period should start from the date the lease agreement is signed. As has been said, there is confusion over when the contract starts. There would not be confusion over when the lease agreement was signed.

Inaccurate PIDs
We fail to see how a PID can become inaccurate during a residency. If it is inaccurate it has always been inaccurate. What is an inaccuracy? How can a PID become inaccurate for someone who is not yet a resident? If a PID is known to be inaccurate it must be amended before a potential resident is required to sign a contract.

Freehold Village Schemes
Preferred policy response. We do not find the distinction at all clear, in fact we fail to see it.

Disputes Tribunal
The potential penalty of non attendance at a mediation conference should be given some prominence on the application form. However, there should be no penalty if a resident attends but does not accept the terms offered by the operator.

Tribunal Should Take Consideration of Other Residents 
The Tribunal should not have regard to anything but the merits of the application. If an order "opens the floodgates" for similar disputes then the remedy is in the operator’s hands. Don’t transgress! It will not be the Tribunal Order that "threatens the viability" of the village but the operator’s transgressions.

Publication
It is of importance for operators and residents alike to be aware of Tribunal decisions, as a guide to future conduct. We believe that mediated settlements should also be published; not necessarily the terms of a settlement but the subject of the dispute and the fact that it was resolved by mediation. We also believe that such settlements be automatically made an order of the Tribunal, not only upon request by a party.

Equality of Rights
Preferred policy response - we applaud the preferred option that Govt proposes but will resist any attempt by operators make "financial adjustments across the village". If the residents are going to indemnify the operator against loss or liability then why make any change at all. Once again it is the maxim of indemnifying operators against financial disadvantage.