18k3n8w9q6ktcjpg

The time is ticking: the swimming pool legislation is due to commence on 29 April 2016. We’ve already suffered two false starts, but it will be implemented this year.

We’re two weeks away from commencement of the new regime. Leverage thought it was timely to remind you of the law and give you some tips.

Registration

By October 29th 2013, all your swimming pools should have been registered with your local council. If you have not yet had a swimming pool registered, you need to do it urgently and attain a compliance certificate. The fines for non-compliance start at $2,200.

Compliance Certificate

By 29 April 2016, all pools need to have obtained a compliance certificate. This could be obtained from the local council or a private service certifier who is accredited to provide compliance certificates. These must be in place by the new legislation date.

For old pools built prior to 2013, you will need to obtain new certificates of compliance. For pools built after the 29th of October 2013, it is safe to assume that compliance certificates have already been issued.

Landlords

Residential tenancy agreements will be amended to include two things:

  1. All swimming pools in tenanted properties must have a compliance certificate; and
  2. All tenants are entitled to a copy of this compliance certificate.

For existing tenancies that have swimming pools, we would not be sending out a copy of the compliance certificate to anyone. Compliance certificates need only be given to people upon request. You don’t need your landlord’s permission to provide a copy of the certificate because it is a requirement of law.

For new residential tenancy agreements and lease properties with swimming pools, it would be best practice to attach the compliance certificate to all documents.

Tenants and pools

If a property does not have a pool, that tenant should never have one!

The Swimming Pools Amendment Act 2013 makes the owner of the property completely liable for the compliance certificate. Hence, if a tenant installs a swimming pool, the landlord is responsible for its safety.

A swimming pool is any vessel which is deeper than 30cm. This is one foot in the old scale. It is a depth that would come half way up most peoples’ calves. We can  understand in the heat of the summer why tenants would install blow up pools to keep the kids cool, however this is at the landlord’s risk.

We would insert as a special condition in all residential tenancy agreements where there is a pool the following clause as a special provision:

Swimming Pools

  1. The tenant is responsible for maintaining and cleaning the swimming pool.
  2. The tenant cannot do anything that may cause the swimming pool to become non-compliant under the Swimming Pools Amendment Act 2013.
  3. Not withstanding the generality of sub clause 2, the tenant must not place any articles, chairs, build gardens or do any such act that will reduce the height of the swimming pool fencing and thereby make it illegal under the Swimming Pools Amendment Act 2013.

For premises which do not have swimming pools, we suggest the following clause:

Prohibition against swimming pools

  1. The tenant is prohibited from installing any pool at the premises.
  2. For the purpose of sub clause 1, ‘pool’ includes any vessel that is deeper than 30cm.
  3. A breach of sub clause 2, is a substantial breach of the residential tenancy agreement and will be cause for the issuing of a 14 day termination notice.
  4. Where a pool has been installed in contravention of this, the tenants authorise the landlord to remove the property and dispose of the pool. No objection, claim or demand will be made by the tenant in relation to the removal and destruction of the pool.

Sales

After 29 April 2016, any house that has a swimming pool will be required to have a certificate of compliance attached to the contract.

For other improvements to a house, you can disclose what has not had approval and therefore contract out of a needs for council approval. This is not the case with swimming pools. The swimming pool certificate of compliance described is a prescribed document under s 52A of the Conveyancing Act 1919. A failure to attach the prescribed document under s 52A can render a contract void even after exchange.

Hence, if you are selling a property with a swimming pool, insure the compliance certificate is attached. You may think you can get away with selling it by not having the compliance certificate, however purchase solicitors and licensed conveyers will be mindful that such certificates are attached.

Strata

Strata swimming pools must be tested for compliance every three years. Additionally, where the pool is public, you will need to obtain a number of other compliance certificates.

Conclusion

It is finally here and we can no longer avert our eyes. The pool legislation has arrived and the government intends to keep pools safe for the kids. It may be painful to comply with, but is far less painful than having a tenant who has a child that drowns in a non-compliant pool.