Australia: Requirement for swimming pool disclosure in NSW delayed with commencement expected on 29 April 2015

Last Updated: 12 May 2014
Article by Gary Newton and Jackie Cheung

In brief - Pool owners have more time to comply with new requirement

From 29 April 2015, all residential properties with a swimming pool or spa pool that are sold or leased must have a valid swimming pool certificate of compliance annexed to the contract. This means that pool owners will have more time to ensure swimming pool barrier compliance prior to the sale or lease of their property.

Changes intended to promote safety of backyard swimming pools

Under the Swimming Pools Act 1992 (NSW), Swimming Pools Regulation 2008 (NSW), Swimming Pools Amendment Act 2012 (NSW) and amendments to the Conveyancing (Sale of Land) Regulation 2010 (NSW) and the Residential Tenancies Regulation 2010 (NSW), swimming pools in NSW must comply with the standards and requirements prescribed in the above legislation.

The regulatory changes to swimming pools are intended to promote pool safety and reduce the chances of avoidable deaths and injuries to children in backyard swimming pools. In particular, this regime requires swimming pools to be registered and certified to ensure that the swimming pool barrier fencing complies with the relevant standard.

Councils, pool industry and real estate industry need more time to comply

Initially, swimming pool disclosure requirements were expected to commence on 29 April 2014 but this has been postponed by the NSW government. A number of concerns were identified by industry stakeholders that prompted the decision to provide an additional twelve months for property owners to ensure that their swimming pool is compliant with the regulations. In particular, these concerns include the following:

  • Councils with high numbers of swimming pools are concerned that high inspection failure rates will increase time and resources required for compliance certificates to be issued.
  • Pool industry and real estate industry stakeholders have identified that additional time is required to prepare properties and obtain a certificate of compliance.
  • Pool traders and services are under pressure to meet the demand for repairs and upgrades to swimming pool barriers.

Requirements for sale of land containing a swimming pool

Pursuant to Schedule 1 of the Conveyancing (Sale of Land) Regulation 2010 a vendor will be required to attach to a contract for sale of land containing a swimming pool, either:

  • A certificate of compliance and a valid Certificate of Registration; or
  • An occupation certificate issued within the last three years accompanied by a valid Certificate of Registration.

As these certificates are prescribed documents in contracts for the sale of land, failure to comply with the requirements entitles the purchaser to rescind the contract at any time within 14 days of exchange (unless settlement has occurred).

Swimming pools and spa pools on common property in a strata scheme

In circumstances where there is a swimming pool or spa pool on common property in a strata scheme, the body corporate should arrange for the pool to be inspected to obtain the certificate of compliance.

Once a certificate of compliance has been issued, individual lot owners may access the Swimming Pool Register to obtain a copy of the certificate if they intend to sell their individual lot. This means that individual lot owners are not required to have the pool separately assessed nor separately obtain a certificate of compliance.

Requirements for leasing a property containing a swimming pool

Section 52(3) of the Residential Tenancies Act 2010 (NSW) provides that a landlord must comply with the landlord's statutory obligations relating to the health and safety of the residential premises. This obligation includes obligations relating to swimming pools under the Swimming Pools Act 1992.

Therefore, in light of the amendments to the Residential Tenancies Act, a lessor of property containing a swimming pool must ensure that the pool has:

  • A certificate of compliance and a valid Certificate of Registration; or
  • An occupation certificate issued within the last three years accompanied by a valid Certificate of Registration.

If a compliance certificate has not been issued, owners of strata lots should contact their relevant body corporate to ascertain whether measures have been undertaken for the pool to be inspected and certified.

Failure to comply with requirements can attract penalties

As amendments to the swimming pool regulations have been delayed and are set to commence on 29 April 2015, vendors and lessors of properties with a swimming pool or spa pool have additional time to ensure that their pool has been registered and issued with a valid swimming pool certificate of compliance or an occupation certificate prior to their sale or lease.

Failure to comply with these statutory requirements can be grounds for rescission of contracts and can attract penalties ranging from $500 to $5,500 imposed by the relevant council authority.

Gary Newton Jackie Cheung
gdn@cbp.com.au jzc@cbp.com.au
Property acquisition, development and sale
CBP Lawyers

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