Today, 29 April 2016, new disclosure requirements in relation to the sale or lease of a property with a swimming pool or spa pool have come into effect.

The new amendments to the Swimming Pools Amendment Act 2012 (NSW) (the Act) impose further obligations on an owner of a swimming pool or spa pool to which the Act applies. The Act defines a swimming pool as:

“an excavation, structure or vessel that is capable of being filled with water to a depth greater than 300 millimetres and 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 definition includes a spa pool but not spa baths or anything situated in the bathroom.

Contracts for Sale

The new obligations will also see amendments to the Conveyancing (Sale of Land) Regulation 2010 that will impose new disclosure requirements on vendors under a Contract for Sale of Land. Marketing a property for sale and producing a draft contract without all of the prescribed documents attached may give a purchaser the right to rescind the contract.

The new obligations require a vendor of a property with a swimming pool to supply either:

  • a valid certificate of compliance; or
  • a relevant occupation certificate along with evidence that the swimming pool is registered.

A third option will be available to Vendors in the form of a ‘certificate of non-compliance’.  If the Vendor attaches this document to the contract, it signifies that the pool has not been formally recognised as compliant by the relevant Council (either because a certificate of compliance has never been requested or because it simply doesn’t comply with the relevant Council requirements and the past request was rejected).

If the Purchaser goes ahead with the purchase, they will become obligated to remedy the non-compliance (i.e. obtain a certificate of compliance) within 90 days of settlement taking place.

Given that it can take Councils up to 90 days to issue a certificate of compliance, purchasers should be very careful to ensure they can comply with their obligations after settlement.

Leases

Landlords entering into a residential tenancy agreement in respect of a property with a pool are also required to ensure that the swimming pool is registered and has either:

  • a valid certificate of compliance; or
  • a relevant occupation certificate.

The landlord must provide their tenant with a copy of those documents.

Exemptions

The new disclosure obligations will not apply to the sale of strata or community lots which have swimming pools when there are more than two lots in the strata scheme (e.g. duplexes) or off-the-plan contracts.

For more information please contact ERA Legal.

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