Why are pool safety laws so important?

08 April 2019

To safeguard young children from drowning or being injured, the Queensland government has in the past few years enacted more rigorous pool safety laws. There is now one uniform pool safety standard and it is the responsibility of the owner of the property to ensure that their pool complies.

Hefty penalties of up to $19,437.00 for individuals and $97,187.00 for corporations apply for non-compliance and failure to ensure that a pool is registered with the Queensland Building and Construction Commission (QBCC) will incur a fine of $2,611.00.

Both buyers and sellers of properties with pools need to ensure that they seek legal advice about any pool safety issues for properties without a current pool safety certificate at the contract date.

What is regarded as a pool?
The relevant laws classify a pool as any excavation or structure capable of being filled with water to a depth of 300mm or more. This includes a pool, spa pool/tub or wading pool, but generally does not include a fish pond (or similar ornamental water feature), dam, water tank, watercourse, spa bath in a bathroom (unless continually filled with 300mm or more of water) or birthing pool.

How do I check on the status of my pool?
There is an online pool safety register linked here: https://my.qbcc.qld.gov.au/s/pool-register where check to see whether a pool has a current pool safety certificate or register a pool if it’s not recorded.
The QBCC also has a helpful interactive online checklist you can use to determine whether your pool complies with the law: http://www.qbcc.qld.gov.au/pool-checklist/

Do I need a pool safety certificate in order to sell my property?
Yes and no! You can sell your property with or without a pool safety certificate.

If you do have a current pool safety certificate, you must give the buyer a copy prior to settlement.

Note: For pools built within the last 2 years, a final inspection certificate or certificate of classification issued by the building certifier can be used as a pool safety certificate for 1 year (for shared pools) and 2 years (for non-shared pools).

If you do not have a current pool safety certificate (i.e. current as at the settlement date), you must give the buyer a ‘notice of no pool safety certificate’ prior to entering a contract of sale and send a completed copy of the form to QBCC before settlement.

Sale contract terms and conditions
If there is no current pool safety certificate at the contract date, then the terms of the most common standard form of contract (REIQ/QLS contract) provide that the contract is conditional on the issue of either a pool safety certificate or a pool safety inspector issuing a ‘notice of nonconformity’ stating the works required for a pool safety certificate, by the pool safety inspection date.

The buyer is usually responsible for arranging an inspection by a pool safety inspector at the buyer’s cost. If no pool safety inspection date is specified in the contract, then the buyer has until the earlier of the building and pest inspection date (if there is one) or 2 business days prior to settlement to obtain either the pool safety certificate or notice of non-conformity.

If the buyer is unable to obtain a pools safety certificate by the pool safety date then they can give notice to the seller that they wish to terminate the contract or waive the condition.

These terms do not apply to some sale contracts, including contracts entered into at an auction or sold to a registered bidder within 2 business days of an auction.

I’m buying a property with a pool – what should I do?
If there’s no current pool safety certificate at the contract date then the buyer may consider asking for a special condition to be inserted into the contract requiring the seller to provide a pool safety certificate prior to settlement. Doing so means it is one less thing to worry about in the buying and conveyancing process.

If the seller is not prepared to agree to this, the buyer will need engage a pool safety inspector who will then issue either a pool safety certificate or a notice of nonconformity stating the works required for a pool safety certificate.

If the required works are significant then the buyer may consider asking the seller to do these or for to reimburse the buyer for the cost of the works by way of an adjustment at settlement.

The obligation is then on the buyer to get a pool safety certificate within 90 days of settlement.

What about properties with a body corporate that have shared pools?
A ‘shared pool’ is 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 or strata schemes.

Sellers of properties with shared pools have similar obligations to sellers of non-shared pools and should check with the pool owner (usually the body corporate) if there is a current pool safety certificate. If there isn’t the seller must provide a copy of any notice of no pool safety certificate not only to the buyer but also to the owner of the shared pool.

However, unlike non-shared pools, if there is no current pool safety certificate at the time of contract, the contract is not conditional upon a pool safety certificate being issued by the pool safety inspection date. 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 $19,437.00.

Conclusion – seek legal advice before signing a contract for a property with a pool!
Pool safety compliance can be confusing and costly and can cause disputes between buyers and sellers.

Lawlab can help advise buyers and sellers with their pool safety rights and obligations to ensure a smooth conveyancing transaction.

Disclaimer This information is general in nature only and does not constitute legal advice. Lawlab accepts no liability for the content of this information. You should obtain legal advice specific to your individual circumstances. Lawlab’s liability is limited by a scheme approved under Professional Standards Legislation. Legal practitioners employed by lawlab are members of this scheme.
Charles Elson
Charles Elson

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