Are you planning to sell or lease property in New South Wales with a swimming pool or spa pool?

From 29 April 2014, properties for sale or lease in New South Wales including a swimming pool or spa pool, must have a valid swimming pool certificate of compliance or occupation certificate as set out in the Swimming Pools Act 1992.

The Swimming Pools Act 1992 defines a swimming pool as:

“an excavation, structure or vessel:

  1. that is capable of being filled with water to a depth greater than 300 millimetres, and
  2. that is solely or principally used, or that is designed, manufactured or adapted to be solely or principally 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, anything that is situated within a bathroom or anything declared by the regulations not to be a swimming pool for the purposes of this Act.”

Certificate of compliance

A certificate of compliance may be obtained by arranging an inspection with the local council or an accredited certifier under the Building Professional Act 2005.  If the pool meets the safety requirements set out in the Swimming Pools Act 1992 a certificate of compliance will be issued.

The safety requirements include:

Outdoor pools:

  • any outdoor swimming pool (excluding spa pools) must be surrounded by a child-resistant barrier designed, constructed and installed in accordance with the standards set out in the Building Code of Australia;
  • access to the water contained in any spa pool is restricted at all times when the spa pool is not in use;
  • the swimming pool must be separated from any moveable dwelling or tourist and visitor accommodation situated on the premises and separated from any place adjoining the premises;
  • the child-resistant barrier must surround the swimming pool and ancillary structures only (such as diving boards and pool filtration plants).

Indoor pools:

  • the means of access to the swimming pool are restricted at all times.  Each doorway and opening portion of a window giving access to the pool must be designed, constructed, installed and maintained in accordance with the Building Code of Australia;

A swimming pool certificate of compliance is valid for a period of three years from the date of issue.  The NSW Swimming Pool Register provides a list of registered pools and whether certificates of compliance have been issued in respect of those pools.

Sale of land

Contracts for sale of land in New South Wales exchanged on or after 29 April 2014, for any property with a swimming pool must attach either of the following:

  • a certificate of compliance; or
  • a valid occupation certificate (not more than three years old) and evidence of registration under the Swimming Pools Act 1992.

The Conveyancing (Sale of Land) Regulation 2010 has been amended to include the above items as prescribed documents to be included with all contracts for sale of land in New South Wales.  If any contracts for sale of land do not comply with the above, the purchaser will have a right to rescind the contract within 14 days of exchange.

For strata property containing a swimming pool or spa pool on common property, it is the obligation of the owners corporation to obtain a certificate of compliance.  Individual lot owners may access the certificate of compliance when required.

Lease of land

A landlord leasing residential property in New South Wales with a swimming pool or spa pool must provide the tenant with a copy of the certificate of compliance or relevant occupation certificate from 29 April 2014.

The standard form agreement contained in the Residential Tenancies Regulation 2010 has been amended to include a statement to the effect that the above requirements have been met and the landlord has provided the tenant with a copy of the certificate of compliance or occupation certificate.

Recommendation

All property owners in New South Wales that include swimming pools or spa pools should ensure that their pools are registered in the NSW Swimming Pool Register.  If you are planning on selling or leasing your property from 29 April 2014, you should obtain a certificate of compliance if required.

In addition, any contracts for sale of land that have been drafted but have not currently been exchanged should be examined to identify whether a certificate of compliance or occupation certificate should be attached, as exchange of contracts may not take place until 29 April 2014 or later.