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Jun24

Swimming Pool Certification

Amanda Quin - Tuesday, May 24, 2016

Swimming Pool Certification - Requirements for Selling or Leasing

If you are selling, purchasing or leasing a property in NSW that has a swimming pool, spa or any excavation, structure or vessel that is capable of being filled with water to a depth greater than 30cm designed for human aquatic activity (all of which for the purposes of this Article will be referred to as a “Pool”), then you need to be aware of new regulations that came into effect from 29 April 2016.

What do the new regulations mean for Pool Owners in NSW ?

All Pool Owners in NSW must:_

  • (a)register their Pool (including Strata Schemes and Community Schemes), if they have not already done so. To register your pool all you need to do is go to http://www.swimmingpoolregister.nsw.gov.au/ and enter your name, address, contact details, pool type, approximate age of the pool and complete a self-assessment checklist on your pool; and
  • (b)maintain a safe pool barrier; and
  • (c)comply with any Council orders regarding the safety of their Pool (nb Local Councils have the right to randomly inspect any Pool)

All Pool Owners should generally ensure that their Pool complies with all relevant safety regulations relating to their Pool.

Additional requirements for Landlords:

Before entering into a lease for a premises in NSW that includes a Pool, the Landlord must obtain and attach to the Residential Tenancy Agreement either:

  • (a)A compliance certificate (from either the relevant local Council or an independent registered certifier) in relation to the Pool at the property. The purpose of this certificate is to confirm that the Pool meets the relevant safety requirements. This certificate should be attached to the residential tenancy agreement for the property; or
  • (b)An occupation certificate for the Pool, which is less than 3 years old, together with evidence of registration of the Pool on the Swimming Pool register.

NB The above requirement to obtain and attach documents to the Residential Tenancy Agreement does not apply where the Pool is on common property and the premises are part of a Strata Scheme or Community Scheme that has more than 2 lots.

Additional requirements if you are selling a property in NSW with a Pool:

Before entering into a Contract for Sale for a Property in NSW that includes a Pool (n.b. there are limited exemptions for pools that are on “common property”) the Vendor must obtain and attach to the Contract for Sale either:

  • (a)An occupation certificate for the Pool, which is less than 3 years old, together with evidence of registration of the Pool on the Swimming Pool register; or
  • (b)A compliance certificate (from either the relevant local Council or an independent registered certifier) in relation to the Pool at the Property. The purpose of this certificate is to confirm that the Pool meets the relevant safety requirements; or
  • (c)A non-compliance certificate for the Pool which indicates that the issues that cause the Pool to be non-compliant are minor issues.

Where a non-compliance certificate has been issued and should it show that the Pool has significant safety problems, then the Pool Owner is obliged to rectify the safety problems and then seek a re-assessment of the Pool by a certifier, prior to selling the Property.

However, if the non-compliance certificate indicates that the problems are minor then a non-compliance certificate may be attached to the Contract for Sale and in such a case the Purchaser will instead be responsible for ensuring that the safety issues are rectified. (It may be the case that some Purchaser’s may seek to renegotiate the purchase price based on whom is required to rectify any minor compliance issues).

NB The above requirement to obtain and attach documents to the Contract for Sale does not apply where the Pool is on common property and the premises are part of a Strata Scheme or Community Scheme that has more than 2 lots.

If none of the above certificates are attached to the Contract of Sale, then the purchaser may be able to rescind the contract within 14 days of exchange (or in some circumstances they may be able to rescind the contract right up until the completion date if there is a breach of a Vendor warranty). Therefore it is very important to attach the correct certificates to the Contract for Sale.

What this means if you are buying a property in NSW with a Pool:

The purchaser of a property with a Pool (other than where the pool is on common property of a strata or community title scheme where there are more than two lots in the scheme) should checkthat the Contract of Sale includes at least one of the following;

  • -A certificate of compliance (no greater than 3 years old), or;
  • -An occupation certificate (no greater than 3 years old) and a certificate of registration, or;
  • -A certificate of non-compliance (no greater than 1 year old).

If the Contract for Sale includes a certificate of non-compliance and theproblems with the Pool do not pose a significant risk, then the Vendor can sell the property without being obliged to ensure that the Pool safety is up to standard and insteadthe purchaser will be required to rectify the “minor” non-compliant issues identified by the certifier.

If you are a purchaser faced with the decision of purchasing a property with a certificate of non-compliance you can ask to see a copy of the notice outlining the non-compliant issues. This will give you the opportunity to estimate the potential costs involved to undertake the rectification works and therefore negotiate on the purchase price. Please be aware however that price negotiations should be undertaken prior to exchange of contracts.

For further information visit the NSW Government Swimming Pool Register website at http://www.swimmingpoolregister.nsw.gov.au/ or contact our office on (02) 6882 3133.