Under the WA Retirement Villages Act 1992 villages are required to lodge a memorial over their land with the Registrar of Titles, notifying anyone interested in the land that it’s used for a retirement village.
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.
But what happens when the land is no longer used for a retirement village?
Amana Living Inc, one of the largest not-for-profit providers of retirement villages and residential aged care in WA had lodged ONE memorial for ALL its retirement villages rather than separate memorials for each site
In 2013 Amana Living made the decision to sell their Sundowner village in Cottesloe, 11km SW of Perth so they asked Jackson McDonald to help them remove the memorial.
Despite Amana Living being able to demonstrate that the Sundowner site was no longer in use as a retirement village, the memorial couldn’t 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, however, on 14 June 2019, the Supreme Court handed down a decision that allowed the memorial to be removed from that one property and Amana Living can now sell the site.
This case has implications for other retirement village owners in a similar situation.
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.
For many of you, this may require delving into information as far back as 1992.
If you find yourself in a similar situation to Amana Living, it may be better to act now while the law is certain.