In short, yes, you can sell a property with a non compliant pool in NSW. But, there are several important rules around this that both the buyer and the seller need to take into account beforehand.
In New South Wales, the Swimming Pools Act 1992 requires property owners to have registered a pool and/or a spa on the NSW Swimming Pools Register, evidence of this registration must be included in the contract of sale. The contract must also contain a certificate of compliance or a certificate of non compliance with the current regulations. Failure to provide these certificates have serious legal consequences and penalties.
What is a Non-Compliant Pool?
A non-compliant pool is one that does not meet the safety standards set out in the Swimming Pools Act 1992 and its accompanying regulations. Common issues leading to non-compliance include:
- Inadequate Pool Fencing: Fencing that does not meet height or gate closure requirements.
- Deficient Barriers: Gaps in the barrier or insufficient barriers separating the pool from the house.
- Missing Signage: Lack of required signage, such as resuscitation signs around the pool.
Selling a Property with a Non-Compliant Pool
1. Obtaining a Certificate of Non-Compliance
To sell a property with a non-compliant pool, the vendor must attach a Certificate of Non-Compliance to the contract of sale. This certificate can be obtained from either the local council or an accredited private certifier and details the specific areas where the pool fails to meet safety standards.
2. Disclosing the Pool’s Non-Compliance
As part of the contract of sale, disclosing that the pool is non-compliant transfers the responsibility of bringing the pool up to standard to the purchaser. This disclosure must include the Certificate of Non-Compliance and detailed reasons for non-compliance. The vendor does not warrant that the pool complies with the Swimming Pools Act 1992, and the purchaser agrees to undertake the necessary works to ensure compliance after the sale.
3. Purchaser’s Obligations Post-Sale
Once the property is sold, the purchaser has 90 days from the date of settlement to rectify any non-compliance issues related to the pool. It is important to note that if the non-compliance poses a significant risk to public safety, this will be highlighted in the Certificate of Non-Compliance and should be addressed promptly.
Legal Implications
Effect of Attaching a Certificate of Non-Compliance
Attaching a Certificate of Non-Compliance effectively passes the responsibility of obtaining a Certificate of Compliance to the purchaser. The purchaser must rectify the non-compliant issues within 90 days from settlement. However, suppose the non-compliance certificate specifies that the pool poses a significant risk to public safety. In that case, immediate action may be required.
Compliance Costs and Considerations
The cost of bringing a pool into compliance can vary widely, depending on the extent of the non-compliance issues. As a vendor, it’s crucial to consider whether addressing the compliance issues before selling may result in a smoother transaction and possibly a better sale price. As a purchaser it is critical to have a firm idea of the anticipated costs to bring the pool into compliance and consider that cost in your overall offer in relation to the property.
Practical Tips for Vendors
If you plan to sell a property with a non-compliant pool, consider the following:
- Obtain Written Proof: Secure a Certificate of Non-Compliance and provide detailed reasons for non-compliance.
- Full Disclosure: Ensure all non-compliance details are included in the contract of sale to avoid legal repercussions.
- Legal Advice: Consult with a legal professional to ensure all procedures are followed correctly and to understand potential liabilities.
Selling a property with a non-compliant pool is entirely possible under New South Wales law, provided specific conditions and disclosures are met. Understanding your responsibilities as a vendor ensures transparency in the transaction and helps avoid potential legal issues down the line. If you’re unsure about any part of the process, seeking legal advice is always prudent.