7 MARCH 2011
On 1 December 2010 the amendments passed by the Queensland Government to the legislation regulating pool safety compliance in Queensland came into effect.
Sellers, landlords and buyers of properties with swimming pools (which includes swimming pools, spas baths or portable pools capable of being filled with 300 millimetres or more of water, and in comes cases, may include wading pools) must comply with the new pool safety laws, which include the requirement to have a current pool safety certificate evidencing compliance.
The laws apply to all properties that have regulated pools, which includes houses, townhouses, units, hotels, motels, backpacker hostels, homestay accommodation and caravan parks.
What are your obligations?
Owners of Properties with Pools
The owner of an existing pool as at 1 December 2010, must make the pool compliant with the new pool safety standard by 30 November 2015, which requires the owner to obtain a pool safety certificate confirming compliance with the new pool safety standards. However, this obligation is accelerated where the property is sold or rented before that date (see further below).
Any new pool constructed on or after 1 December 2010 must comply at all times with the new pool safety standards.
Selling a Property with a Non-Shared Pool
Seller’s Obligations
The obligations on an owner wishing to sell a house with a pool are:
(a) To provide a copy of a current pool safety certificate to the buyer if it exists; or
(b) Pre-Contract Notice – where there is no pool safety certificate in effect before entering into a contract, the seller must give the proposed buyer notice of this in the approved form (Form 36 Notice of No Pool Safety Certificate); and
(c) Pre-Settlement Notice – if there is no pool safety certificate in effect before settlement, the owner must give the buyer and the Department of Infrastructure and Planning (DIP) a Form 36 Notice of No Pool Safety Certificate (however, if the seller has already given the buyer a pre-contract notice, it does not need to provide the pre-settlement notice to the buyer again if the information has not changed).
Buyer’s Obligations
The obligations on a buyer are:
(a) If the Buyer Receives a Pool Safety Certificate – nothing further is immediately required in this regard (NB. however, pool safety certificates are only valid for 2 years); or
(b) If the Buyer Does Not Receive a Pool Safety Certificate – the buyer must take on any cost to put the premises in a position where a pool safety certificate can issue (which in some cases will be a significant cost) and obtain a pool safety certificate within 90 days of settlement irrespective of whether the seller provides the proper disclosure.
The standard REIQ House and Land Contract has been amended to include provisions dealing with the new pool safety law requirements. By way of summary, if there is no pool safety certificate in effect, the Contract will be conditional upon the buyer engaging a pool safety inspector to inspect the pool to determine the requirements to obtain a pool safety certificate. If the results of the inspection are that the pool safety requirements have been met (without further work being required) and the inspector issues a pool safety certificate, this condition of the Contract will be deemed satisfied. If the results of the inspection are that further works are required in order for a pool safety certificate to be issued, the buyer may have the right to terminate the Contract.
Selling a Property with a Shared Pool
Seller’s Obligations
The obligations on a owner of a lot within a community titles scheme intending to sell his or her lot, with a shared pool located on the common property for the scheme, are:
(a) Where there is a pool safety certificate for the common property pool – the owner must give a copy of the certificate to the buyer before settlement; and
(b) Where there is no pool safety certificate – the owner must give the buyer and the DIP the prescribed form of notice. The timing for giving this notice mirrors the timing for a seller and buyer of a property with a non-shared pool discussed above. In addition, this notice must be given to the body corporate.
Body Corporate’s Obligations
The obligation to obtain a pool safety certificate following settlement falls on the body corporate rather than the buyer. The body corporate is required to obtain a pool safety certificate for a common property pool within 90 days of settlement of a sale. However, if settlement occurs on or before 1 September 2012 and the pool was built before 1 December 2012 , a phase in period applies and the body corporate is not required to obtain a pool safety certificate until 30 November 2012.
Renting a Property with a Non-Shared Pool
The owner of a rental property must, before entering into a new or renewed lease for a property with a non-shared pool, ensure that a pool safety certificate is in effect for the pool.
Due to the recent flooding in Queensland and Cyclone Yasi, the Government has delayed the obligations of owners of rental properties, whereby they are not required to have a pool safety certificate in effect for leases entered into or renewed from 8 January 2011 to 8 July 2011. However, the owner is required to give a warning notice (Form 37) to a tenant advising them that there is no pool safety certificate in effect.
Renting a Property with a Shared Pool
The obligations of the landlord and the body corporate effectively mirror the obligations of the seller and a body corporate for a property with a shared pool.
Other Obligations on Pool Owners – Regulated Pools Register
The DIP has established a register of regulated pools and the public may search to see if a pool safety certificate is current for the pool.
An owner of an outdoor swimming pool must ensure that their pool is registered with the DIP prior to 4 May 2011. Penalties of up to $2,000 will apply after this time.
Obtaining a Pool Safety Certificate
A licensed pool safety inspector may issue a pool safety certificate.
If the pool complies with the pool safety standards, the inspector must issue a certificate within 2 business days of the inspection.
If the pool does not comply with the pool safety standards, the inspector must give the owner a non-conformity notice, which states the reasons the pool is not compliant, what work needs to be done to make the pool compliant and that the owner may ask the pool safety inspector to re-inspect the pool within 3 months after giving the non-conformity notice.
Penalties for Non-Compliance
Failure to comply with the pool safety laws may attract a maximum penalty of $16,500 for individuals and $82,500 for corporations. On the spot-fines may also be issued of $1,600 for individuals and $4,800 for corporations.
Final Comments
It is important that all pool owners are aware of and comply with their respective obligations under the new pool safety laws.
For sellers of properties with a non-shared pool, it is likely that prospective buyers are going to be more wary of entering into contracts for properties which do not have a pool safety certificate in place or will seek to insist on seller’s obtaining a pool safety certificate at their expense as a pre-condition to settlement.
For further information please contact:
[contactsbox] [leftcolumn]Contact Partner: Ross Kinneally
Direct Telephone : 07 3210 5770
Mobile Telephone : 0419 773 003
[email protected]
Contact Partner: Francesca Petroccitto
Direct Telephone : 07 3210 5771
Mobile Telephone : 0402 293 644
[email protected]