Can the operator terminate a resident’s right of occupation?
An operator of a retirement village can only terminate a resident’s right of occupation if [Retirement Villages Act 2016 (SA) s 44]:
the resident commits a breach of the residence contract or residence rules
acts in a manner which adversely affects the health and safety of persons working in the retirement village or that seriously disturbs the peace and comfort of other residents
the residence becomes an unsuitable place of residence for the resident because of the resident’s mental and physical incapacity, or
circumstances exist that make it no longer appropriate for the resident to continue to reside in the residence
The operator must not terminate the resident’s right on the basis of the resident’s behaviour unless they have made reasonable efforts to stop the resident acting in the manner complained of, such as [s 44(3)]:
giving the resident written warning to stop acting in that manner, or
conducting some form of mediation or dispute resolution process with the resident, or
any other means appropriate in the circumstances.
In order for the operator to terminate a resident’s right of occupation, the termination must be confirmed, on the application of the operator, to SACAT [s 44(8)].
A resident’s right of occupation can also be terminated in the following limited circumstances:
the Supreme Court terminates the residence contract in proceedings under section 58 [s 44(1)(g)]. Section 58 relates to the termination of an entire retirement village scheme.
Can a resident terminate their right of occupation?
A residence contract cannot limit or qualify the right of a resident to terminate during their settling-in period [s 44(4)]. The settling-in period starts from the day the resident signed the contract or began occupying the residence (whichever was later) and ends 90 days thereafter, or such longer period as may be specified in the resident’s contract.
If a resident terminates the right of occupation during the settling-in period, the resident is liable to pay fair market rent for the period of occupation and any other amounts payable under the residence contract [s 44 (5)] (except an amount sought by way of penalty for terminating during the settling-in period, as seeking such an amount is not allowed under the Act [s 44(7)]).
The amount due may be deducted from the resident’s exit entitlement [s 44(6)].
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