Pool Safety – Are you up to date with recent changes to the law?
Did you know that drowning is the leading cause of unintentional death for children aged one to four years?
Between 1 January 2004 and 30 June 2010, 41 children under five years of age drowned in Queensland’s residential swimming pools, as well as one drowning in a wading pool and two in home-made pools.
New Pool Safety Laws commenced on 1 December 2010 and were introduced to address the problem.
Applies to the owner of regulated premises (which includes a building or part of a building e.g the scheme land of an apartment building) on which a regulated pool is situated. A regulated pool is any excavation or structure capable of being filled with water to a depth of 300mm or more and includes a pool, spa pool or wading pool but generally does not include a fish pond, dam, water tank, watercourse or spa bath in a bathroom (unless the spa bath is kept constantly filled with 300mm or more of water);
- Establishes a register of all properties with a pool. This register can be publicly searched;
- Confirms that all pool owners have until 30 November 2015 to obtain a Pool Safety Certificate, unless their property is sold or leased (time frames for sold or leased properties are much shorter) (*see Footnote);
- Obliges a landlord of a dwelling to obtain a Pool Safety Certificate prior to entering into an agreement to lease a property with a pool (*see Footnote);
- Obliges a seller of regulated premises to provide a Pool Safety Certificate or Notice of No Pool Safety Certificate to a buyer before settlement (common practice is that the Certificate is usually supplied to a prospective buyer before they sign the Offer to Purchase)
- Obliges a purchaser of regulated premises to obtain a Pool Safety Certificate within 90 days of settlement if they do not receive a Pool Safety Certificate from the seller prior to or at settlement (except in the case of a unit where the obligation is on the body corporate);
- Differentiates between a non-shared pool (e.g. a pool on private land or a private pool forming part of a lot in a body corporate) and a shared pool (e.g. a pool on scheme land in a body corporate for use by all residents in the apartment block);
The standard contract terms have also recently been changed to take into account the new pool laws.
If you are selling a property on which there is a swimming pool for which no Pool Safety Certificate has been issued, you should be aware that the contract is conditional upon the buyer obtaining from a licensed pool safety inspector :-
(a) confirmation that the pool safety requirements have been met and the issue of a Pool Safety Certificate; or
(b) confirmation of the works required before a Pool Safety Certificate can be issued.
If a Pool Safety Certificate is not issued, the buyer has the right to terminate the contract.
If you are purchasing a property on which there is a regulated pool for which no Pool Safety Certificate has been supplied, it will be your responsibility to obtain the Certificate within 90 days of settlement. You should be aware that this could involve costly expense in repairs / changes that have to be made to the pool, surrounds or fencing to bring these up to a standard which would allow for the issue of a Pool Safety Certificate.
The seller is obliged, at the same time as providing a copy of the Form 36 Notice of No Pool Safety Certificate to you, to provide a copy to the Department of Infrastructure and Planning. The Department would therefore be aware that the subject pool does not comply and would no doubt be following up on non-complying pools.
Penalties of up to $16,500 for individuals and $82,500 for corporations apply for non-compliance.
For more information on:
- the new pool safety laws;
- how the laws affect property owners, real estate agents and property managers;
- selling a property with a pool; and
- tips on how to make your pool safer;
go to http://www.dip.qld.gov.au/fact-sheets/pool-safety.html
If you need assistance with conveyancing please contact McColm Matsinger Lawyers.
The Premier has on 14 February 2011 announced a special exemption from pool safety disclosure laws for leased properties only which, at the time of writing this article, is being introduced to help with recovery from recent natural disasters. The exemption is to take effect retrospectively from 8 January 2011, operating for a period of 6 months.
Under the exemption, pool owners may lease their property without a valid pool safety certificate provided they first give to the tenant a notice alerting the tenant to the fact that the pool may not comply with pool safety laws and may pose a risk to young children.
McColm Matsinger Lawyers
Ph: (07) 5443 1800
Liability limited by a scheme approved under professional standards legislation