Jackson McDonald successfully removes incorrect Retirement Village Memorial

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By Matthew Reid, Simon Moen and Bianca McGoldrick

Retirement villages in Western Australia (WA) are required to lodge a memorial over their land with the Registrar of Titles. This memorial notifies anyone who is interested in the land that it’s used for a retirement village. Under the WA Retirement Villages Act 1992 (RVA), the memorial remains on the title as long as there is a resident in the retirement village who has a right to repayment of a premium under the RVA.  The memorial acts as a notice of the resident’s right to repayment of a premium, which is protected by way of a statutory charge on the land in the retirement village. So, what happens when land is no longer used for a retirement village?

This issue recently arose for Amana Living Inc (Amana Living), one of the largest not-for-profit providers of retirement villages and residential aged care in WA. When the RVA was introduced in 1992, Amana Living lodged one memorial for all of its retirement villages rather than lodging a separate memorial for each property. This was common practice at the time for owners of multiple retirement villages.

Since 2013, the Sundowner site, located at 416 Stirling Highway, Cottesloe has not been used as a retirement village.  Amana Living had made a decision to sell the 1.6Ha property, so they asked Jackson McDonald to help them remove the memorial, which we did successfully.

The Registrar of Titles can remove a memorial once they are satisfied that no part of the land is, or is proposed to be, used as a retirement village. While Amana Living could demonstrate to the Registrar that the land was no longer operating as a retirement village, the memorial wasn’t able to be removed because it covered multiple properties that were still operating villages. The Registrar and Landgate took a cautious position, relying on a Supreme Court order being made to determine there was an error in the original memorial that need to be corrected under section 188(3) of the Transfer of Land Act 1893.

Jackson McDonald made an application to the Supreme Court of Western Australia for Amana Living. We argued that it was a mistake to lodge one memorial over multiple retirement villages. This is because it implied that all of the retirement villages operated as if they were just one village. It also implied that residents of any of the retirement villages had rights to repayment of their premiums secured by all of the properties covered by the memorial, which is incorrect because each village operated as a separate scheme.

On 14 June 2019, the Supreme Court handed down a decision that allowed the memorial to be removed from that one property. This now paves the way for Amana Living to sell the property.

This case has implications for other owners of retirement villages who have mistakenly lodged a single memorial to cover multiple, separate retirement villages. In such instances, to remove a memorial from any of your properties, you may need to make an application to the Supreme Court and prove that you made a mistake when lodging the memorial. This may include providing information about the circumstances surrounding the lodgment of the memorial and how the retirement villages have operated and been managed from the time of lodgment right through to the current day. For many, this may require delving into information as far back as 1992.

If you’re in a similar situation to Amana Living, it may be better to act now while the law is certain. After successfully representing Amana Living in this case, Jackson McDonald is well placed and experienced on the relevant laws and has a clear understanding of the evidence required to help you achieve a successful outcome.