Two of Australia’s largest States are at odds when it comes to age restrictions in land lease communities, with NSW set to allow retirement operators to bar younger people becoming residents at the same time that Victoria has outlawed the practice.

In late November 2021, the NSW Government released a statutory review of its land lease community legislation, after receiving around 380 submissions on a discussion paper.

The review report notes that the current legislation doesn’t expressly enable the creation of age restriction rules in a community, although this was happening in practice.

“The matter of age restriction rules was the subject of divergent and strong views within submissions and the survey,” the review report says. “Many survey responses and some submissions support having community rules regarding age restrictions, showing a preference to live among aged people rather than with younger residents. 

“However, age restriction rules were not favoured by all submissions. 

“The Tenants’ Union has raised concerns that age restrictions are unjust for younger people who may wish or need to live in the community…and can conflict with (existing laws) which allows a home owner’s spouse or de facto partner, or a home owner’s carer, to have an automatic right of occupation of a residential site. 

“They have suggested that if age restriction rules are to be permitted, clear exemptions should be prescribed to clarify the situation.

Given that many communities generally cater for older people, the review considers there is value in enabling communities to adopt an age restriction rule for their community if it is desirable and has the support of residents. 

“At the same time, the review recognises that there are situations in which it would be unreasonable to prohibit a person from living in the community based on their age, such as a child whose legal guardian is a community resident, the home owner’s partner, or a beneficiary of an estate.”

The review report will be used to inform new land lease community legislation in NSW, which will most likely be tabled in NSW Parliament in 2022.

In a separate but related development late last year, the NSW Government also confirmed that developers who wanted to access planning incentives to build seniors housing needed to ensure at least one of the occupants of the future dwellings was 60 or over.

NSW is now heading in a different direction to Victoria, which in March 2021 commenced changes to its Equal Opportunity Act which passed the State’s Parliament in 2018 and made it illegal for a land lease community operator to refuse to lease a site to a person based on attributes such as gender, race or age.

In an interview with last year, Residential Land Lease Alliance chair James Kelly said the Victorian law would not affect operators, as they could target their preferred demographic through marketing and dwelling occupation limits. Mr Kelly is also the managing director of Lifestyle Communities.

“You don't actually need to state (the community is) for over 50 or over 55s,” Mr Kelly said.

“We've stopped doing that a while ago, only because just by instead saying ‘downsizing’ you immediately clarify who the target market is. 

Downsizers are typically people looking to move post-family into a smaller house. So we just find that type of language, which most of our competitors use as well, just immediately qualifies them without having to put an age on it.”

Mr Kelly also said the fact his company had an occupation limit of no more than two people in each home also meant that younger families were not attracted to his company’s communities.

The legal changes in either NSW or Victoria are not relevant to retirement villages, which in both States are defined as places predominantly occupied by people retired from the workforce or people over the age of 55.

Comment from our CEO CEO Amanda Graham said: “It’s interesting to see these new policy developments, and there are clearly divergent arguments both for and against age limits restricting occupancy. The Lifestyle Communities approach in Victoria is a sensible one.

"It’s important to note that no state is considering removing the age limits on existing retirement villages, and if at least one occupant in a residence meets the age criteria, in most villages that allows for some reasonable flexibility.”

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