In December 2019, the Victorian government introduced new laws that require private swimming pools and spas to be registered with local councils.
Why have the regulations changed?
Since the year 2000, the coroner has found that in over 74% of Victorian cases where young children drowned in privately owned pools or spas, the safety barriers were non-compliant.
The recently introduced Building Amendment (Swimming Pool and Spa) Regulations 2019 (Vic) impose new and improved safety standards for swimming pools and spas. These regulations have rightly been introduced to minimise the risk of children tragically drowning.
The new laws apply to swimming pools and spas that can hold more than 300mm of water including standard pools, above ground pools, indoor pools, spas, hot tubs, bathing or wading pools and some relocatable pools.
What do you need to do to ensure your pool or spa is compliant?
In order for you to ensure that your pool or spa is compliant, you need to take the following steps:
- Register your pool or spa with your local council immediately, noting that the deadline for registration was 1 November 2020;
- Once your pool or spa has been registered, arrange an inspection of your pool or spa’s safety barrier to determine whether the barrier is compliant;
- Rectify any issues identified by the registered swimming pool inspector;
- Submit a compliance certificate to the council by the following deadline dates:
| On or before 30 June 1994 | 1 November 2021 |
| From 1 July 1994 until 30 April 2010 | 1 November 2022 |
| From 1 May 2010 until 31 October 2020 | 1 November 2023 |
The safety barriers of the pool or spa must then be routinely inspected and re-certified once every four years until the pool or spa is removed from the register. Failure to lodge a certificate of barrier compliance by the required date can result in a fine of up to $1,652.20.
How could a non-compliant pool or spa affect your purchase
When selling a property, a vendor is not currently required under Section 32 of the Sale of Land Act 1962 (Vic) to disclose whether its pool is compliant or not. This exposes potential purchasers to the significant risk of buying a property containing a pool or spa that is non-compliant with regulations. In these circumstances, following the sale, purchasers may become liable for payment of costs for arranging a poor or spa inspection and rectifying any issues to ensure the pool is compliant.
If it is discovered that a pool or spa is non-compliant prior to settlement, it is unlikely that a purchaser would be able to terminate the contract of sale on those grounds. Additionally, depending on when the council issued the notice, a purchaser may also find it difficult to compel the vendor to acquire a compliance certificate at their own cost.
Given the inherent risk in buying a property with a pool or a spa, it is vital that purchasers have their contracts and vendor statements carefully reviewed by a lawyer, and the property is checked by a building inspector prior to execution of the contract to ensure they avoid any unforeseen costs or liabilities in relation the pool or a spa.
What should you disclose when selling your property with a pool?
Prior to selling its property with a pool or spa, a vendor should bring to its lawyer or conveyancer’s attention the compliance status of the pool or spa and all supporting documentations (e.g. certificates and/or council notices). This will put a prospective purchaser at ease and will ensure that the purchaser will not attempt to rescind the contract based on not being informed about the status of the pool or spa.
If a vendor’s swimming pool or spa does not comply with regulations, it should either rectify the faults or immediately contact its lawyer to have a relevant special condition drafted for inclusion in the contract of sale. The purpose of such a condition would be to designate which party is responsible to undertake the procedures and bear the costs to make the swimming pool or the spa compliant with applicable laws and obtain the compliance certificate.
Who Can Help?
At Burke Lawyers, we provide expert legal advice specifically tailored to assist you in avoiding many of the hidden pitfalls of purchasing and selling property.
To discuss further, please contact Kristy Muhlhan, Accredited Specialist Property law, who heads the Property and Development legal team, or Kate Smith on +61 3 9822 8588 or email our team HERE.
