(from 29 April 2016)

Most people who have pools will be familiar with the NSW Government’s drive to legislate the improvement of swimming pool safety.

From 29 April 2016, the new legislation requires that all Sale Contracts for properties that have a swimming pool must have attached either:

1. a Swimming Pool Certificate of Compliance, or
2. a Swimming Pool Certificate of Non-Compliance, or
3. a Council Occupation Certificate that is less than three years old AND evidence the swimming pool is registered under the Swimming Pool Act 1992.

If the prescribed documents are not attached to the Sale Contract, the Purchaser has the option to rescind the Contract or possibly make a claim for compensation from the Vendor.

The definition of a pool

The Swimming Pools Act 1992 defines a pool as an excavation, structure or vessel:

1. that is capable of being filled with water to a depth greater than 300 millimetres, and
2. that is solely or principally used, or that is designed, manufactured or adapted to be solely or principally used, for the purpose of swimming, wading, paddling or any other human aquatic activity. This includes spa pools, flotation tanks, tubs or the like, but does not include a spa bath or anything that is situated within a bathroom.

How to obtain a certificate

You can lodge a Swimming Pool Certificate request through your Local Council or through an independent Accredited Certifier. Both provide inspection services, and fees for the initial inspection can vary from $150 to $200.

Once the required paperwork is completed by you, we can help to facilitate the lodgment to Council.

Strata and Community developments

Strata and Community developments generally do not have pools within the boundaries of individual units or Lots. Pools are more frequently found on Common Property, managed by the Owners Corporation or Community Association and not owned by individuals.

As a result, a Contract for the sale of any individual Lot contained within a registered Strata or Community Plan which consists of more than two lots is exempt from the new certificate requirements.

Off-the-plan developments

A Contract for Sale ‘off-the-plan’ which includes a pool in the plan is exempt from the new certificate requirements. What is a Certificate of Non-Compliance? Where a pool does not meet compliance regulations, a Certificate of Non-Compliance will be issued. In this case, there are a few things you should be aware of:

1. If you’re selling, the Certificate of Non-Compliance will be attached to the Sale Contract and you will be able to transfer the responsibility to obtain a Certificate of Compliance to a Purchaser. The Purchaser will then have 90 days from the date of settlement to rectify the defects listed in the Certificate of Non-Compliance, and to then obtain a Certificate of Compliance. It is worth noting however, that your Purchaser may want to negotiate the sale price of the property down if work is required.
2. If a Certificate of Non-Compliance states the pool poses a significant risk to public safety, the defect must be rectified within a time specified by Council. The time allowed for rectification will depend on the level of risk. You may need to rectify at your cost prior to selling or you could face significant fines.

Leases

Where there is a pool on a property for lease, a Landlord agrees to ensure the pool is registered and compliant when entering into a Residential Tenancy Agreement. Both the Certificate of Compliance and Certificate of Registration must also be provided to the tenant.

Ensure you are compliant

If you own a property with a pool, and are considering selling, you must ensure that you meet the compliance requirements under the new legislation.

We can assist with any questions you might have, to help facilitate a smooth and stress-free transaction. Call us on 02 6331 7666 today.