Selling and leasing a house with a swimming pool or spa is about to become harder in NSW

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 like.

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 pool safety.

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 (spa)?

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); or
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 (spa)?

Swimming pool compliance is a landlord’s obligation under section 52(3) of the Residential Tenancies Act 2010, as follows:

(3) A landlord must comply with the landlord’s statutory obligations relating to the health or safety of the residential premises.
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 residential premises.

[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 into:

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 tenant.

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.

Concluding comments

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.