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Lawyers must ensure swimming pool and spa compliance

Lawyers must ensure swimming pool and spa compliance

By Karin Derkley

Conveyancing Real Property 


Even though the Sale of Land Act doesn't require property vendors to disclose the compliance status of their swimming pool or spa, lawyers need to be mindful of their obligations under Australian Consumer Law when they act for purchasers or vendors, members of the LIV Property Law Committee have pointed out.

Under the Building Amendment (Swimming Pool and Spa) Regulations 2019 property owners are required to register their pool and spa with their local council by 1 June 2020 and have them inspected by an appropriately qualified building inspector and issued with a certificate of compliance. They must have their safety barrier inspected once every four years.

However, there is no requirement under the regulations or under s32 of the Sale of Land Act for vendors to disclose whether their pool or spa has a compliance certificate.

That puts purchasers at risk of buying a property with a non-compliant pool or spa and being liable for the costs of an inspection and having works done to bring the pool or spa into compliance, says Property Law Committee member Anne Nielsen.

"In many cases they will not be able to end the contract or compel the vendor to bring the pool or spa into compliance at the vendor's cost."

Lawyers who fail to provide relevant legal advice about a pool or spa's compliance may also be subject to a negligence claim if the purchaser incurs compliance costs but could have elected not to proceed with the purchase after being given such advice, Ms Nielsen points out.

"The most important thing is for lawyers to advise purchaser clients who seek legal advice before they have signed a contract of sale or who are still entitled to exercise cooling off rights about the new procedures and the cost of complying with them if they are buying a property with a pool or spa that is non-compliant or, even worse, cannot be brought into compliance."

Lawyers acting for vendors with a swimming pool or spa need to be proactive in ensuring their client provides accurate and up-to-date information as to its compliance status or risk the transaction falling through, says Property Law Committee member Peter Lowenstern.

"Australian Consumer Law says you must not mislead a consumer – and you don't have to intend to mislead to fall foul of that. Even if the vendor tells you the pool is compliant, as their solicitor if you haven't checked that a pool or spa is compliant you could be engaging in misleading conduct, even if you are just repeating what the vendor told you."

"There is a risk the vendor sale could be put in jeopardy if the purchaser wants to rescind the contract because they believe they have been misled regarding the compliance status of a pool."

Even though information about the status of a pool does not currently have to be included in a s32 statement, Mr Lowenstern says it is a wise precaution to provide complete and legible copies of paperwork issued pursuant to the regulations, together with other relevant paperwork, with the statement.

"So far as a contract of sale is concerned, if at the time of listing a pool does not comply with the regulations, the vendor’s instructions should be sought about including an appropriate special condition making it plain which party is responsible for bringing the pool into a compliant state."

Read the LIV submission on the Building Amendment (Swimming Pool and Spa) Regulations 2019 here.

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