retirement.org.nz

Who is a "resident"?

A resident is:

• anyone who enters into an occupation right agreement with a retirement village operator
• anyone who is entitled under an agreement to live in a unit in the village (even if the agreement wasn't made with that person)
• a spouse or partner who is living in a unit with someone who's entitled under an agreement to live there, or who is living in it after that person has died or left the village (as long as the agreement or the operator allows it).

All these people have the rights given to residents by the Retirement Villages Act and the Code of Practice. For example, they have all the rights set out in the Code of Residents' Rights, and they can use the village's complaints procedure and take an unresolved complaint to a disputes panel.

For the purposes of making a complaint or taking a dispute to a disputes panel, a "resident" includes a "former resident" (or their estate). A "former resident" is a person who was a resident of a retirement village on or after 1 February 2004 and whose occupation right has since terminated.

The key protections

Broadly, residents have a right to what they were promised, whether verbally, or in advertisements, the disclosure statement, their occupation right agreement or other documents.

They are protected by several important legal documents:

• the disclosure statement is given to them by the operator before they sign the occupation right agreement. All residents living in a village must also be given a copy of the disclosure statement by 1 May 2008.
• their occupation right agreement is the contract they have signed with the retirement village operator that governs their right to live in the village, what they have to pay, and other obligations. Residents can avoid (cancel) their agreement if it was entered into in breach of certain provisions of the Act.
• the Retirement Villages Act and regulations set out the operator's obligations to run the village properly and other residents' rights, such as the right to get what they were promised, to receive information, to be consulted about changes and to make complaints and take disputes.
• the Code of Residents' Rights is a summary of the basic rights the Act gives to residents. A breach of the Code of Rights can form the basis of a complaint or dispute notice.
• the Code of Practice 2008 sets out minimum requirements for the operation of retirement villages and the protection of residents. These must be included in occupation right agreements from 2 October 2009, or earlier if an operator chooses this. Operators must tell residents about their policies and procedures on the 10 topics covered by the Code of Practice and give them copies of these and the Code if they ask. They must also have an induction process for residents on the Code of Practice.
• the memorial on the village's certificates of title helps ensure that residents can continue to live in the village if it's sold or goes into liquidation. The extent of this protection depends on the operator's termination rights in the resident's occupation right agreement.

What if things change?

Residents have a right to what they are promised in their occupation right agreement. The agreement must state whether it can be changed and, if so, in what situations.

The agreement may specify that decisions of a majority of residents will bind all residents (except where the Retirement Villages Act or other legislation requires the consent of a specified proportion of residents on a particular matter).

The Act also requires that residents be told about matters that affect them and be consulted about proposed changes. The Code of Practice 2008 (in force from 2 October 2009) will set out minimum requirements for how often meetings between the operator and residents must be held and for residents having access to the operator. It will also cover the opportunities for residents to participate in decision-making.

Right to be kept informed

The operator must inform residents (and intending residents) promptly about anything that might materially affect their right to live in their village unit and the charges for this.

The operator must report to residents at an annual general meeting, held within six months after the end of the village's financial year, and give them all relevant papers beforehand. At the meeting the operator must give the residents all information that they ask for, and must provide them with the minutes afterwards.

The operator must give residents a copy of the village's forecast statements within three months after the beginning of the new financial year.

Residents can also ask for copies of:

• the audited financial statements
• the Code of Practice and the policies and procedures the village has developed to meet the Code's requirements.

The operator must also inform residents if they are going to apply to the Registrar of Retirement Villages for an exemption from the requirement to have a statutory supervisor. Residents can then write to the Registrar with their views.

The operator must also tell the statutory supervisor a number of things, or, if there isn't a statutory supervisor, tell the residents directly. These include:

• any suspension of the village's registration, or any request from the operator to cancel it
• any proposals to develop or redevelop the village
• any proposed increase in secured liabilities or the maximum credit available to the operator
• any actual or threatened action by a creditor, or any action to put the operator or village in receivership or liquidation
• any actual or threatened action to take legal proceedings that affects residents
• any refusal to insure the village.

The statutory supervisor can also direct the operator to inform residents and intending residents about these things.

Right to be involved in decision-making

Residents have a right to form a residents' committee and to meet with the operator or manager and the statutory supervisor. Ten percent of residents may also call a meeting with the village manager, operator or statutory supervisor to give their opinions or directions.

Right to be consulted about changes

Operators must consult residents about any changes they propose to make to services and benefits or to the charges residents pay, if these changes might affect the residents or their ability to pay for them.

The operator must specifically consult residents before:

• appointing a new manager
• establishing or changing the village rules
• selling or otherwise disposing of the village
• other common changes that affect residents, include developing or redeveloping the village.

The requirement to consult involves:

• giving residents enough information
• giving them time to respond
• fully considering their comments or advice with an open mind before making a decision
• conveying the decision to residents, with reasons.

Right to have requests responded to

Residents have the right to receive a response to their requests, for example, for information and for maintenance.

Right to have issues sorted out

Residents have the right to take any concerns or issues to the village operator or statutory supervisor and to receive a response. If the problem isn't sorted out, residents may make a complaint and if necessary take a dispute to a disputes panel.