No pool safety certificate? Not so fast.

There is a common misconception among buyers that, so long as they are provided with a notice from the seller that there is no pool safety certificate for the pool, they have 90 days following settlement to ensure the pool complies with pool safety standards and the barriers are in good condition. This is simply not true and can cause you some real headaches.

Background

In short, under the standard REIQ Contract for Houses and Residential Land (Sixteenth Edition), a seller must notify the buyer if there is a pool on the Land and, if so, if there is a Compliance or Exemption Certificate for the pool at the time of contract.

1. If there is a certificate in place, your solicitor can get a copy of it and all is well – happy days.
2. If there is no certificate in place, the seller must give a Form 36 – Notice of No Pool Safety Certificate notifying the buyer of this.

If the Form 36 was issued, the buyer becomes responsible, at its cost, to obtain a Pool Safety Certificate within 90 days after settlement and must pay the costs of rectification necessary to comply with the Pool Safety Requirements. Ok – so you have 90 days right? No so fast.

Section 282(1) of the Building Act 1975 (Qld)

Under section 282(1) of the Building Act 1975 (Qld) (Building Act), the owner of a regulated pool must ensure the pool complies with the pool safety standard for the pool and all barriers for the pool are kept in good condition. This obligation is a continuous obligation and is separate to the obligation to obtain a pool safety certificate which, essentially, just certifies compliance with section 282(1).
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Being in breach of section 282(1) of the Building Act can have serious legal and financial consequences.

Example

Here’s a common example:

1. Buyer signs a contract to purchase a property and, at the time of receiving the Contract, is notified by the Real Estate Agent that the pool does not have a pool safety certificate (and is given a Form 36 – Notice of No Pool Safety Certificate).
2. Buyer makes no investigations in relation to the pool or what is required to obtain a pool safety certificate as they believe they have 90 days following settlement to obtain one.
3. Buyer settles the property, not knowing that the reason the pool does not have a pool safety certificate is because the pool does not meet current pool safety standards, not because the previous certificate had simply lapsed.
4. On the day of Settlement, the Buyer becomes the Pool Owner for the purposes of the Building Act, is in breach of section 282(1) and may receive an Enforcement Notice from the City Council or even a Penalty Infringement Notice for breach of the legislation.
5. The Buyer has to immediately carry out the necessary works, whatever they may be, to ensure the pool complies with current safety standards and, separately, within 90 days of settlement, obtain a pool safety certificate.

 
What should you do?

If you are notified by the Real Estate Agent, or your solicitor, that there is no Pool Safety Certificate for the pool, you have two options:

Option 1: Include a special condition requiring the seller to obtain a Pool Safety Certificate prior to Settlement

To save you the hassle, you can negotiate a special condition to be inserted into the Contract requiring the seller to obtain a Pool Safety Certificate prior to Settlement. This will make your life much easier. While easier for you, the primary set back is, if the pool doesn’t meet current safety requirements, the seller may be inclined to do the very bare minimum works required to obtain the certificate, which could include cheap/lazy/ugly fencing etc.

An example of a special condition is as follows:

Notwithstanding any provision in this Contract to the contrary, this Contract is subject to, and conditional upon, the Seller obtaining, at its expense, a Form 23 - Pool Safety Certificate and producing a copy of the same to the Buyer or Buyer’s Solicitor by no later than 2 Business Days prior to the Settlement Date. In the event the Seller fails to satisfy its obligations under this Special Condition, the Buyer may either provide the Seller with a notice of termination upon which this contract shall be at an end and the deposit is to be refunded to the buyer in full; or may waive the benefit of this Special Condition.

Option 2: Engage a Pool Safety Inspector to carry out an Inspection

Under clause 4.2 of the Contract you are entitled to arrange for a Pool Safety Inspector to attend the property to inspect the pool. This must be done by the Pool Safety Inspection Date listed on the Contract or, if there is not one specifically listed, then it must be done by the earlier of the Building and Pest Inspection or 2 Business Days before the Settlement Date.

After the Pool Safety Inspection, the inspector will either issue a Pool Safety Certificate or will give you a Notice of Nonconformity stating the works required before a Pool Safety Certificate can be issued. You can then negotiate to have the works completed prior to settlement to ensure compliance with section 282(1) of the Building Act. While it is preferable to also obtain the Pool Safety Certificate prior to settlement, you will have 90 days after settlement to get this.

We’re here to help

If you find yourself in a situation where you are negotiating on a property that has a pool, we would be more than happy to assist you by providing a pre-signing Contract review. This way, we can not only advise you on the situation with the pool safety certificate (and what your options are depending on the circumstances) but on all of the other terms of the contract.
If you have any questions, get in contact with us. We’d love to help