The Swimming Pools Amendment Act 2012 (the Amendment Act) received assent on 29 October 2012 and amends the Act, which regulates fencing and safety requirements for owners of swimming pools in NSW. The main objectives of the Amendment Act include:
- to establish a state-wide online register of all private swimming pools in NSW (the Online Swimming Pool Register);
- to require swimming pool owners to self-register their swimming pool on the state register by6 19 November 2013;
- to require that councils conduct mandatory periodic inspections of swimming pools associated with tourist and visitor accommodation and multiple occupancy premises (such as strata) every three years;
- to amend the Building Professionals Act 2005 to allow accredited certifiers to conduct inspections and issue certificates of compliance for swimming pools when requested by swimming pool owners; and
- to amend the conveyancing and residential leases legislation to require vendors and landlords to have a valid swimming pool certificate of compliance before they may offer the property for sale or lease effective from 29 April 2014.
Each of these effects will be seen to have a significant impact on swimming pool owners as compliance requirements tighten, however, this post will focus on the last objective of the Amendment Act and its practical effect it will have in the world of conveyancing.
As every diligent solicitor and conveyancer would know, s 52A of the Conveyancing Act and Part 5 of the Conveyancing (Sale of Land) Regulation provide for the inclusion of certain prescribed documents in every contract for sale. If the vendor fails to attach any of these prescribed documents, the purchaser may rescind at any time within 14 days after the making of the contract, unless the contract has been completed. A swimming pool document is now one of these prescribed documents.
This document can be in one of two forms:
- A valid certificate of compliance issued by either the council or an accredited certifier under the Act; or
- A relevant occupation certificate and evidence that the swimming pool is registered under the Act.
Failure to attach one of these documents to any contract of sale entered into after 29 April 2014 will result in the purchaser having the right to rescind the contract within 14 days after exchange. Needless to say, if this is the result of the negligence of a solicitor or conveyancer who has failed to undertake their due diligence, an unhappy vendor may well look to them for answers and potential negligence claims. It is important to note that contracts which are currently prepared for sale and being marketed prior to 29 April 2014 might exchange after 29 April 2014 and, therefore, should contain this new prescribed document to avoid potential issues later in the month.
It is now extremely important to review your unexchanged sale contracts to establish whether:
- the properties contain swimming pools;
- any swimming pools are registered; and
- advise your clients of the potential effects non-compliant contracts that are exchanged after 29 April 2014,
If you are selling your property which contains a swimming pool, or you are a real estate agent who is marketing a property and are unsure if the contract that is prepared complies, contact us immediately.
