New mandatory pool safety requirements for Queensland sellers and buyers

By Tony Baldwin (Partner), Jack Dixon (Solicitor)

New swimming pool safety laws mean that sellers and buyers of properties in Queensland that have a pool will need to ensure that it meets minimum safety standards and has a current pool safety certificate.

The Building and Other Legislation Amendment Act (No. 2) 2010 was introduced into Parliament on 18 August 2010, and has now been passed. These changes will commence on 1 December 2010.

These laws will apply to all properties that have regulated pools, including hotels, motels, caravan parks and manufactured home parks. Sellers who don't comply with the laws will be exposed to heavy penalties.

Key changes

• If you're selling a property with a pool, under a contract of sale for the premises, you must give the buyer a pool safety certificate (if one is in effect before settlement). If the pool doesn't have a certificate, you will need to give a prescribed notice to the purchaser, the chief executive administering the Act, and if it is a shared pool, to the owner of the pool (the body corporate). Sellers who do not comply with this may be subject to a maximum penalty of $16,500.
• If you're buying a property with a pool, you should make sure that you are aware of whether the pool is compliant, as if you receive a notice (before settlement) that the pool is non-compliant, you will be responsible for obtaining a pool safety certificate within 90 days of settlement. You will also be responsible for the cost of any work required to obtain the certificate, which in some cases may be significant. This will create an additional point of negotiations for sellers and buyers prior to entering into a contract of sale.
• If you are a property owner leasing a property with a pool, the Act requires a pool safety certificate to be provided to the lessee before they sign or enter into an accommodation agreement for a nonshared pool (such as a pool on a residential property). If property owners enter into such an agreement without first obtaining a pool safety certificate, they will be committing an offence under the Act. The definition of 'accommodation agreement' captures residential tenancy agreements and rooming accommodation agreements under the Residential Tenancies and Rooming Accommodation Act 2008, as well as any agreement under which a person gives someone else a right to occupy premises in exchange for money or other valuable consideration.

When a pool must be compliant

All pools in Queensland must be compliant by the 'pool safety standard application day'. The 'pool safety standard application day' is an important term, as it creates a statutory timeframe which, if not adhered to, will leave owners open to penalties. However, the pool safety standards only apply to regulated pools from the 'pool safety application day', so in that sense the existing standards continue to apply up until that day.

The 'pool safety standard application day' for a residential property with a pool is whichever of the following occurs first:

• Five years after the proclamation of the Act
• The day an 'accommodation agreement' is entered Into
• The day a pool safety certificate is issued
• 90 days after the day of settlement, if the building where the pool is situated is sold and a pool safety certificate is not in effect for the pool at settlement.

Getting a certificate

If the pool complies with safety standards, the pool inspector will give the owner a safety certificate within two business days of the inspection.

If the pool does not comply with safety standards, the inspector will issue a non-conforming notice stating:

• why the pool is non-complying;
• what work needs to be done to make the pool a complying pool; and
• that the owner may ask the pool safety inspector to reinspect the pool within three months after giving the non-conformity notice.

If the owner does not ask the inspector to reinspect the pool within 90 days, the inspector must notify the local council and provide them with a copy of the nonommercial Property conforming notice. The penalty for having a noncomplying pool is $16,500.

For more information about buying or selling a property with a pool under this legislation, please contact HopgoodGanim's Commercial Property practice.

© HopgoodGanim Lawyers

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.