Selling and leasing a
house with a swimming pool or spa is about to become harder
From 29 April 2016, new laws for swimming pool and spa
compliance will create new requirements for vendors and
landlords of residential property in NSW.
As a general rule, the new laws will require that sellers
will need to attach a valid Certificate of Compliance for
the swimming pool or spa to the Contract for Sale; and that
landlords will need to provide a compliant swimming pool or
spa when entering into the lease.
With over 300,000 backyard swimming pools in New South
Wales (according to the Office of Local Government), the new
laws will affect many properties.
This is a summary of how the new laws will affect the
sale and rental of residential properties with swimming
pools and spas.
What swimming pools and
spas are affected by the new laws?
This is the definition of swimming pools and spas in
section 3 of the Swimming Pools Act 1992 –
“swimming pool” means an excavation, structure or vessel:
- that is capable of being filled with water to a
depth greater than 300 millimetres, and
- that is … used, or that is designed, manufactured or
adapted to be … used, for the purpose of swimming,
wading, paddling or any other human aquatic activity,
and includes a spa pool, but does not include a spa bath,
or anything that is situated within a bathroom, …
“spa pool” includes any excavation, structure or vessel
in the nature of a spa pool, flotation tank, tub or the
The definition: of swimming pools includes spa pools;
extends to portable pools / inflatable pools, hot tubs and
jacuzzis; does not extend to fish ponds or ornamental
fountains; and specifically excludes bath tubs and spa baths
in a bathroom.
Swimming pool registration
applies to all swimming pools and spa pools
The NSW Government introduced a universal pool
registration requirement in 2013. It established a central
registry for swimming pools and spas in the State and
provided information to educate swimming pool owners about
The registration information displayed includes: the
street address; the type of pool - is it an
outdoor or indoor pool, is it permanent, portable or
inflatable?; and the description of the pool - is it
in ground or above ground?
The educational information is found in the Pool Safety
Checklists on the NSW Swimming Pool Register website for
swimming pools and spas. The checklists contain a series of
questions about the pool fences, the gates, doors and
windows opening on to the pool, which are directed to giving
information about the pool safety standards applicable to
the particular swimming pool or spa.
Different pools have different rules. There are nine
different Pool Safety Checklists in all, because pool safety
standards differ depending on whether the pool was built
before or after 1 September 2008 or 1 May 2013; whether it
is a small property (less than 230 sq m), medium or a large
property (over 2 hectares); and whether it is an indoor,
outdoor or portable pool or a spa pool.
Pool registration is a once-only requirement. It does not
need to be renewed.
What are the requirements
for selling a residential property with a swimming pool
If a residential property is sold with a swimming pool
(spa), the following requirements apply. They do not apply
if the property is part of a strata or community scheme.
Contracts for the Sale of residential property (up to 2
dwelling houses on the one lot or on land up to 2.5
hectares), must have a copy of one of these three forms of
certificates attached –
- an occupation certificate that is less than 3
years old and that authorises the use of the swimming
pool (spa) – note: occupation certificates are issued to
permit the use of new or re-built swimming pools (spa);
- a certificate of compliance that is less than
3 years old, that certifies that the swimming pool (spa)
complies with Australian Standards; or
- a certificate of non-compliance that is less
than 1 year old, that certifies that the swimming pool
(spa) does not meet the requirements for the issue of a
certificate of compliance.
The failure to attach a certificate to the contract gives
the purchaser the right to rescind the Contract within 14
days after the contract is entered into.
The Local Council or an independent accredited certifier
issues these certificates, on application by the property
owner. Once issued, the certificate is entered on the
Swimming Pool Register against the pool (or spa)
registration. Note that it is not a requirement to attach
the Certificate of Pool Registration to the Contract.
Contracts for the Sale of the property in a strata scheme
or a community scheme (which comprises more than 2 lots) or
in an off the plan contract, do not need to have a
certificate to be attached. The reason why they are exempt
is that the Local Council (or local authority) requires
mandatory three (3) year inspections of swimming pools
situated in strata and community schemes. And so, a current
certificate should always exist.
How do does a certificate
of non-compliance transfer responsibility to a purchaser?
If a certificate of non-compliance is attached to the
Contract, one of these circumstances will apply until it
becomes compliant -
The first is if that the swimming pool represents a
significant risk to public safety, then the swimming pool
(spa) cannot be used until it is made compliant.
The second is that the swimming pool (spa) can be used if
a child-resistant barrier (or other means of access) is in
place. The barrier / means of access must comply with the
Building Code of Australia. This temporary use can
continue for up to 90 days after the acquisition of the
premises, that is, after the Contract is completed.
What are the requirements
for leasing a residential property with a swimming pool
Swimming pool compliance is a landlord’s obligation under
section 52(3) of the Residential Tenancies Act 2010, as
(3) A landlord must comply with the landlord’s statutory
obligations relating to the health or safety of the
Note. Such obligations include obligations relating to
swimming pools under the Swimming Pools Act 1992.
These obligations are incorporated into the Standard Form
Residential Tenancy Agreement, where new clause 40A has been
inserted after clause 40 as follows:
[Cross out this clause if there is no swimming pool]
40. The landlord agrees to ensure that the
requirements of the Swimming Pools Act 1992 have been
complied with in respect of the swimming pool on the
[Cross out the following clause if there is no
swimming pool or the swimming pool is situated on land in a
strata scheme (within the meaning of the Strata Schemes
Management Act 1996) or in a community scheme (within the
meaning of the Community Land Development Act 1989) and that
strata or community scheme comprises more than 2 lots]
40A. The landlord agrees to ensure that at the
time that this residential tenancy agreement is entered
40A.1 the swimming pool on the residential premises
is registered under the Swimming Pools Act 1992
and has a valid certificate of compliance under that Act
or a relevant occupation certificate within the meaning
of that Act, and
40A.2 a copy of that valid certificate of compliance
or relevant occupation certificate is provided to the
Therefore, the swimming pool (and spa) must be both
registered and compliant on the entry of the lease.
Landlords cannot amend clauses 40 & 40A of the lease to
transfer responsibility to tenants. Failure to comply could
result in a penalty notice.
Landlords will need to remember to renew the certificate
of compliance every 3 years.
Home owners and property investors looking to sell or
lease properties with a swimming pool or spa will need to
apply for a certificate of compliance well in advance, to
give ample time to carry out the work needed to comply.
Owners of pools with spillway/infinity edges and pools with
windows may need to carry out substantial work because they
need to comply with current pool barrier requirements,
regardless of when the pool was installed.
Home owners and property investors looking to find out if
their swimming pool or spa complies should look at the Pool
Safety Checklists as guides. Swimming pool safety inspectors
use more detailed checklists to assess compliance.