11 Oct Selling or Buying a property with a Swimming Pool
Background
The commencement of the changes to the Swimming Pools Act 1992 (NSW) (“the Act’”) which have been evolving since 2012 finally commenced on 29th April 2016. These changes have a significant impact on Vendors and Purchasers of properties with swimming pools and spa pools.
Are you selling a property with a pool?
If you are selling a property with a pool or a spa, then you must attach the following to the Contract:
- a valid certificate of compliance (under section 22 of the Act) or a relevant occupation certificate within the meaning of the Act together with a certificate of registration under Part 3A of the Act.
- if you cannot get a valid certificate of compliance a certificate of non-compliance issued under section 18BA of the Swimming Pools Regulation 2008.
A certificate of compliance remains valid for 3 years and a certificate of non-compliance is valid for one year from the date that the relevant certificate issues, unless the certificate of non-compliance states that the pool poses a significant risk to public safety.
A relevant occupation certificate is one issued by Council or a certifier under the Environmental Planning & Assessment Act 1979 that is not less than three (3) years old and authorises the use of the pool.
The documents referred to above i.e. certificate of compliance, occupation certificate and certificate of registration and certificate of non-compliance are prescribed documents for the purposes of section 52A(2)(a) Conveyancing Act 1919.
If a certificate of non-compliance is attached to the Contract, then the obligation of doing the work to get the certificate of compliance passes to the purchaser who has 90 days to do the work. This is not the caser where because of the non-compliance the pool poses a risk to public safety in which case.
What happens if the relevant certificate is not attached to the contract?
If a prescribed document is not attached to the contract, then the Purchaser may choose to rescind the contract within 14 days of the date of the contract. In this case the deposit will be refunded to the Purchaser.
Are you purchasing a property with a pool?
If there is a certificate of compliance or occupation certificate attached to the contract then there should be nothing to worry about.
If there is a certificate of non-compliance attached to the contract then you should ask the Vendor for a copy of the section 22E or regulation 18B notice which goes with the certificate so that you can ascertain what needs to be done to the pool and the property before the certificate can issue. This will also enable you to get the work costed so that this can be taken into account when you are deciding on the price that you want to pay for the property.
You will have 90 days from the date of completion of the purchase to rectify the non-compliance issues. If the certificate of non-compliance states that the pool poses a significant risk to public safety then the Council will issue a notice specifying a time for the work to be done.
What if the pool poses a significant risk to public safety?
If the certificate of non-compliance states that the pool poses a significant risk to public safety then the private certifier must immediately notify the relevant local authority who can then issue a notice under section 23 or 23A of the Act. If Council issues such a notice then after completion the Purchaser would also be required to comply with the notice if it was issued after the date of the Contract. If the notice was issued before the date of the Contract then the standard contact provides that the Vendor would need to do the rectification work unless the contract was amended to provide otherwise.
What if I am leasing my property that has a pool?
A valid certificate of compliance or occupation certificate and certificate of registration must be given to the tenant before the commencement of the lease and will form part of the lease.
Exemptions
The new provisions so not apply to:
- Contracts for the sale of a property in a Strata Scheme that has more than 2 lots in the scheme.
- Contracts for the sale of a property in a Community Title Scheme that has more than 2 lots in the scheme.
- Off the Plan contracts.
Penalties
The owner of the pool may be liable for a penalty of up to $5,500 for non-compliance with the pool safety requirements. On-the-spot fines of $550 can also apply.
If you require any further information please contact Alexandra Tzavellas Email: atzavellas@harrisco.com.au
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