As of 1 December 2010 new pool safety provisions become law with immediate effect!
The Building and Other Legislation Amendment Bill (No.2) 2010 makes amendments to the Building Act 1975 and is the second stage of the Queensland Government’s pool safety strategy.
The new law places obligations on property owners, particularly when they sell or rent their property.
POOL SAFETY CERTIFICATES
Pool safety certificates will be required when selling or renting property with a pool, including residential park homes. Both new and existing pools must comply with the latest safety standards within five years, unless sold or rented first. This means that all properties selling or renting after 1 December 2010 must comply with the latest pool safety standards.
Selling a property with a pool
A seller of property with a pool must either:
- provide the buyer with a pool safety certificate prior to settlement; or
- provide the buyer with an “Non Conformity Notice” stating they do not have a certificate prior to contract; and
- provide the local Council with a copy of the Non Conformity Notice prior to settlement.
A Body Corporate must provide a pool safety certificate to an owner who intends to sell his unit with a pool on common property, or will have two years to plan and upgrade their pool fencing. This gives a Body Corporate time to budget for work required to meet the new standard.
A buyer of property with a pool must obtain a pool safety certificate within 90 days of settlement, irrespective of whether the seller provided the proper disclosure.
Renting a property with a pool
An owner of property with a pool must either:
- provide the tenant with a pool safety certificate prior to entering into a rental agreement; and
- display a copy of the certificate at the main entrance to the property or each gate giving access to the pool.
If there is no certificate, an owner must provide an approved form stating there is no certificate to the tenant and the Department of Infrastructure and Planning, and obtain a certificate within 90 days of the tenancy agreement being entered into.
The importance for real estate agents
Real estate agents are unable to collect agency fees when managing a lease of premises where there is no certificate and face disciplinary proceedings if they do so.
Also, a seller of property should be made aware of their obligations prior to entering into a contract of sale – note that a seller must provide a proposed buyer with a Non Conformity Notice before contracts are signed.
Be aware that a buyer, on receipt of a Non Conformity Notice, may want to add a special condition to a contract allowing him opportunity to be satisfied whether or not a certificate can be issued and the costs involved of upgrading the pool to the required standard.
Obtaining a pool safety certificate
The mandatory pool safety inspections must be performed by private certifiers. We understand that licensed building certifiers will be automatically licensed as pool inspectors for a period of one year form 1 December 2010.
The inspector must provide either a Pool Safety Certificate if the pool complies, or a Non Conformity Notice if it does not.
The pool safety certificate will last for two years for a non-shared pool and one year for a shared pool, although Council can revoke a certificate if they later inspect the property and find the pool does not comply.
Compliance with the pool safety laws and the Pool Register
Compliance with the new pool safety requirements may include increasing height barriers, reducing the height of nearby flower beds or moving climbable objects near the barrier.
We understand Council will be door knocking properties to populate information onto the State Government’s Pool Register. All pools must be registered by 1 June 2011. The register is expected to be available on the Government’s website from mid November 2010.
- Portable pools and spas of a depth of 300mm or over will be required to be fenced
- The cost of constructing, altering, repairing or maintaining a pool fence consisting of a dividing fence is to be borne by the owner of the land on which the pool is situated unless there is a pool on both properties.
For detailed information on the pool fencing requirements, here is a link to the Queensland pool barrier requirements: www.dip.qld.gov.au/resources/laws/queensland-development-code/current-parts/mp-3-4-swimming-pool-barriers.pdf
Report by: Zoë Brereton, Senior Commercial Lawyer