As aptly explained in a note found in the Interim Code of Practice for Retirement Villages (No. 2) 2021:
‘Retirement villages are clearly marketed by the industry as permanent accommodation for their residents. Accordingly, a residence contract may be terminated only in a limited number of circumstances, as set out in the residence contract or the Retirement Villages Act 1992.
The administering body of a retirement village cannot terminate a residence contract on its own; that is, without the agreement of the resident. However, a resident or the administering body may apply to the State Administrative Tribunal to terminate a residence contract under circumstances as specified in the Retirement Villages Act 1992’.
Recently, however, the State Administrative Tribunal (SAT) made the rare decision in Co-operation Housing and Tramsak [2022] WASAT 1 to allow an application by the owner of a retirement village to terminate a residence contract.
Background
Matija Tramsak (the resident) had occupied a unit at the ‘Trapper Street Mews’ retirement village owned and operated by Co-operation Housing (the owner).
Since moving into the unit in 2007, the resident demonstrated anti-social behaviour with numerous complaints received in relation to her shouting and swearing which had disturbed the quiet enjoyment of several other residents in the village.
In particular, there was a long-standing dispute between the resident and a neighbour in the village, Mr Davies, which saw the police attend on 18 occasions to deal with altercations and complaints about restraining order violations.
By April 2020, the resident’s behaviour had reached a point that could not be resolved with conventional police or health intervention, with the only remaining option being eviction or relocation.
On 28 May 2020, the owner served on the resident a notice of intention to seek an order from the SAT for termination of the residence contract under section 59 of the Retirement Villages Act 1992 (WA) (the Act) for persistent breach of the contract and the residence rules. Section 59 enables the SAT to terminate a residence contract and fix a date for the resident to vacate, in certain circumstances where they have breached their residence contract or the residence rules of the village. The SAT must be satisfied that the breach (or persistent breaches) justify/ies termination, or that termination is otherwise appropriate in the circumstances.
Did the resident breach the terms of the contract and/or rules?
The SAT considered:
- What were the applicable terms of the contract and/or rules?
- Did the resident breach the terms of the contract and/or rules?
- If so, considering the circumstances of the case, were the breaches persistent to justify termination of the contract?
The SAT determined that the resident had breached the following obligations:
- The resident’s aggressive and intimidating behaviour obstructed maintenance staff from carrying out maintenance work on her unit (contrary to her contract).
- The resident was regularly visited by a male companion who would stay at the unit for up to 3 nights without the owner’s prior written permission (a direct breach of the contract).
- The resident had caused noise disturbance – including by shouting, screaming, swearing and making noise such as slamming garbage bins – on various occasions, interfering with the quiet enjoyment of other residents (contrary to both the contract and the village rules).
Did the breaches justify termination?
SAT was satisfied that an order to terminate the residence contract was appropriate. The Tribunal took into account: the use of police and the City of Fremantle’s resources in managing the resident’s behaviour; persistent and wilful breach of contract (despite various efforts by the owners); the effect of the resident’s behaviour on the health and wellbeing of other residents; and the lack of any underlying psychiatric or mental condition justifying her actions.
The SAT considered the impact of that termination of the contract would have on the resident, given her limited financial resources in re-locating to another property. However, it was noted that previous offers to relocate the resident to alternative community housing had been rejected. That being the case, there were no other options for the owner but to persue termination of the contract.
Comment
This is a rare decision by the SAT. In fact, at the time of writing, there are no other published SAT decisions terminating a retirement village residence contract.
In addition to section 59 of the Act, there are some other limited grounds on which an administering body of a retirement village may apply to SAT for termination of a residence contract are as follows:
- Dispute about transfer of resident to other accommodation in village (section 57).
- Medical (section 58).
- Breach of residence contract or rules (section 59).
- Serious damage or injury caused by resident (section 62).
- Undue hardship to operator (section 63).
The SAT can also declare residential premises to be abandoned, under section 68.
If you require legal advice or assistance about retirement village disputes, or any other aspect of seniors living, please contact David McMullen.
