Drowning is one of the largest causes of infant deaths in Queensland. In response, the Queensland Government enacted new pool safety laws, which commenced on 1 December 2010. Pool owners have until 30 November 2015 to comply with these laws or earlier if they are selling or leasing their property. With this deadline fast approaching, it is crucial that pool owners and real estate agents are aware of their obligations when selling property with pools.
When selling a residential property with a pool, the parties’ rights and obligations are outlined in the terms of the REIQ’s Contract for Houses and Residential Land (11th edition) and Contract for Residential Lots in a Community Titles Scheme (7th edition) (‘Standard Contracts’).
Compliance or Exemption Certificates
A Compliance or Exemption Certificate is required to be given to a buyer before settlement of a contract under section 246ATF(a) of the Building Act 1975 (Qld) (‘Act’), which is reflected in clause 5.3(1)(f) of the Standard Contracts. If the seller does not comply with this requirement, they may face a penalty of up to $19,437.
Clause 1.1 of the Standard Contracts defines a ‘Compliance or Exemption Certificate’ to mean any of the following:
(a) A Pool Safety Certificate confirming the pool complies with pool safety laws as defined by section 231C(a) of the Act;
(b) A final inspection certificate or certificate of classification (‘Building Certificate’) that may be used instead of a Pool Safety Certificate under section 246AN(2) of the Act; or
(c) An exemption from compliance on the grounds of impracticality under section 245B of the Act.
Pool Safety Certificates and Building Certificates are generally valid for one year for shared pools or two years for all other regulated pools under sections 246AL and 246AN of the Act.
What if there is no Pool Safety Certificate?
If the seller does not have a valid Compliance or Exemption Certificate at the time of contract, then they must provide the prospective buyer with a Form 36 Notice of No Pool Safety Certificate (‘Notice’) prior to entering into the contract pursuant to section 246ATF(b) of the Act and section 16 of the Building Regulation 2006 (Qld). They must also give the Queensland Building and Construction Commission (‘QBCC’) a copy of the Notice. If a seller breaches these sections of the Regulation, they risk being fined up to $2,356.
Pool Safety Inspection
In addition to providing the buyer with a Notice, the seller must also ensure Q2 of the Reference Schedule is answered ‘No’. If Q2 is answered ‘No’, then Clause 4.2 of the Standard Contracts will apply, which states that the contract is conditional upon the following occurring by the pool safety inspection date:
(a) The issue of a Pool Safety Certificate; or
(b) A licensed pool safety inspector issuing a Form 26 Notice of Nonconformity stating the works required before a Pool Safety Certificate can be issued,
If no pool safety inspection date is specified in the contract (as if often the case), clause 1.1 of the Standard Contract defines the date to be the earlier of two business days before the settlement date or the building and pest inspection date.
Should a Pool Safety Certificate for a non-shared pool not issue by the pool safety inspection date, then the buyer may terminate the contract or if the buyer does not give any notice by 5pm on the pool safety inspection date, the seller may terminate the contract.
Exceptions to Clause 4.2
Even if Q2 of the Reference Schedule is answered ‘No’, clause 4.2 of the Standard Contracts will not apply to the following contracts under section 160(1)(b) of the Property Occupations Act 2014 (Qld):
(a) Formed on sale by auction;
(b) Entered into with a registered bidder by no later than 5pm on the second business day after a property is passed in at auction;
(c) Formed because of the exercise of an option granted under an earlier contract if the parties are the same as the earlier contract;
(d) If the buyer is a publicly listed corporation or a subsidiary of a publicly listed corporation;
(e) If the buyer is the State or a statutory body; or
(f) If the buyer is purchasing at least three lots at the same time, whether or not in the one contract.
What if the buyer settles the contract without obtaining a Pool Safety Certificate?
If the buyer settles the contract without receiving a Pool Safety Certificate from the seller, then the buyer will become responsible at its cost to obtain a Pool Safety Certificate. As the new registered owner of the property, the buyer must ensure the pool complies with the pool safety laws and all pool barriers are kept in good condition under section 232(1) of the Act.
However, section 246ATJ provides an exception for buyers of properties with non-compliant pools. Such buyers will be given 90 days from the settlement date to obtain a Pool Safety Certificate. Once this 90 day period expires, the buyer will face penalties should they fail to obtain the Pool Safety Certificate for the pool.
If the buyer breaches these sections of the Act, they risk being fined up to $19,437. The local council has the power to conduct inspections of pools that they suspect do not comply with pool safety laws.
What about shared pools?
A ‘shared pool’ is defined by section 231A of the Act to mean a pool on land that is shared by the residents of two or more dwellings constructed on that land. This most commonly applies to community titles schemes. Like non-shared pools, the seller of a dwelling with a shared pool must provide the buyer with a Compliance or Exemption Certificate before settlement or a Notice before entering into the contract. The seller must also provide a copy of the Notice to the owner of the shared pool, which is usually the body corporate.
However, unlike non-shared pools, if there no valid Compliance or Exemption Certificate at the time of contract, the contract will not be made subject to the issue of a Pool Safety Certificate by the pool safety inspection date and clause 4.2 will not apply. Instead, the owner of the shared pool (rather than the buyer) must obtain a Pool Safety Certificate within 90 days from the settlement date or risk a fine of up to $19,437.
Leasing property with a pool
Under section 246ATG of the Act, it is an offence to enter into an accommodation agreement with someone without a valid Pool Safety Certificate for non-shared pools. An ‘accommodation agreement’ is defined by section 231A of the Act to include a residential tenancy agreement or other agreement granting someone a right to occupy premises in exchange for money such as a lease or licence. For shared pools, the owner must give a Notice to the tenant, owner of the shared pool and the QBCC. The penalty for breaching these provisions is up to $19,437.
What should you do if you own a non-compliant pool?
If you own a pool in Queensland and suspect that it does not comply with the pool safety laws, you should arrange for an inspection by a pool safety inspector prior to 30 November 2015 in order to obtain a Pool Safety Certificate. If you wait until after this date, you risk local council conducting an inspection of your premises and issuing you with an on-the-spot fine.
If you would like further advice about pool safety laws or other matters relating to buying or selling property in Queensland, please contact us and one of our experienced property lawyers will be able to assist.