Section 149 Certificates
There are two reasons why a Contract for Sale of Land may be out of date, or non-compliant with current law, in the early part of 2014.
The Environmental Planning and Assessment Regulation 2000 was recently amended with the effect that the exempt and complying development provisions will now apply to more properties than previously.
As a result, Section 149 Certificates, which are a mandatory vendor disclosure document, issued by Councils before 23 February 2014 which state that complying development cannot be constructed on the land which is the subject of the Section 149 certificate, may not be correct.
If this is the case then the Vendor of the property would be in breach of the warranties set out in the Conveyancing (Sale of land) Regulation 2010 and any contract entered into using such an incorrect Section 149 Certificate could be the subject of rescission by a purchaser.
Care should be taken to ensure that an up-to-date Section 149 Certificate is used in any contract for sale of land.
Swimming pools, which are very broadly defined, are also a problem.
Pool owners have been required to register their pools on an on-line register provided by the New South Wales State Government since 29 April 2013.
HOWEVER, on and from 29 April 2014, Contracts for Sale of Land in respect of properties that contain a swimming pool (as broadly defined in the Swimming Pools Act 1992 (as amended) must have attached, as a mandatory disclosure document, either :-
- A valid certificate of compliance issued by either the local Council or by an accredited certifier, or
- A relevant occupation certificate and evidence that the swimming pool is registered under the Act.
Failure to attach one of these documents in relation to a swimming pool to a contract entered into on or after 29 April 2014 will result in the Purchaser having the right to rescind the contract within 14 days after it is entered into.
The general definition of “swimming pool” in the Act refers to an excavation, structure or vessel that is capable of being filled with water to a depth greater than 300 millimetres and 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. This does not include most spas but it can include a spa in some circumstances. There are also some swimming pools that are exempt from some of the requirements of the Act.
It is, therefore very important to ensure that any Contract for Sale of land is prepared with up-to-date disclosure documents and that care is taken to ensure that all relevant disclosure documents are attached to it.