Death of children through pool drowning was officially recognised as a national problem in Australia in the 1960s. This was prompted by the high rate of drowning children below the age of 15 years. The years after, saw a number of regulations and legislations put in place to help curb this unfortunate trend. In 1991, Queensland introduced swimming pool safety laws which saw the number of child drownings drop by more than half.
On the 14th December 2008, the Premier of Queensland, Honourable Anna Bligh MP, commissioned a comprehensive review of Queensland pool safety laws aimed at reducing the rate of drownings and immersion injuries children suffered. Among the recommendations forwarded by the Swimming Pool Safety Review committee, included pool safety regulations to govern selling and leasing of properties. Child safety barriers around swimming pools also featured prominently in these regulations because unfenced pools and defective child safety barriers largely contribute to drowning deaths in children below the age of five.
In as much as supervision of young children and teaching them how to swim from a young age has been seen to save lives, there needed to be more intentional controls particularly in real estate dealings hence the introduction of pool safety regulations when selling in Queensland.
Basically, there are three types of pools considered under the Pool Safety Standard that affect how sellers dispose of their properties. First and foremost, the pool safety laws are applicable to swimming pools that are associated with properties such as townhouses, hotels, homestay accommodation, motels, units, and caravan parks.
The pools that sellers need to carefully consider when selling their properties include:
Non-Shared Pools – These are largely pools whose accessibility is restricted to residents or occupants of one dwelling such as private spas and pools on private houses.
Shared Pools – Where a pool is accessible to the residents or occupants of more than one dwelling such as in residential unit complexes, the law recognises these as shared pools.
Portable Pools and Spas – For a pool or spa to fit in this category, it must have the capacity to accommodate 300 mm of water and above or the ability to hold a volume of 2000 litres and above. For this reason, bathroom spas that are specifically used as baths and thereafter emptied do not fall under this category and are not bound by pool safety laws.
If you are a property owner intending to sell your property and have one of the above three categories of pools, you are required by law to comply with the pool safety standard. The deadline for the compliance was 30th November 2015. This expressly means that the pool safety regulations when selling in Queensland are applicable to virtually every sale transaction entered into after the November 2015 deadline and ignorance is no defense.
There are three main stages property sellers and their agents ought to be aware lest they attract penalties and suffer botched up sales deals. These stages include:
Before Entering into a Sale Contract – In a case where the property seller has a pool, but doesn’t have an effective Pool Safety Certificate before entering into the contract, they are required by law to give the potential buyer a Form 36. This form notifies the purchaser that the property doesn’t have a Pool Safety Certificate and hence his or her decision should be made with a clear understanding of the circumstances.
Prior to Settlement – As the seller, you must give the buyer a copy of an effective Pool Safety Certificate if you have one. However, in a scenario where the Pool Safety Certificate is not available or effective before settlement, you must give the buyer a Form 36 bearing the settlement date. A copy of this form must also be submitted to the Queensland Building and Construction Commission. For shared pools, the body corporate must also be given a copy of this form. Penalties of up to 165 penalty units (or up to $19,437) could apply for non-compliance.
After Settlement – For non-shared or private pools, the buyer has 90-days from the settlement date to get a Pool Safety Certificate in the event there was none before settlement. The new owner has only 90-days to get a pool compliant after purchase of a non-shared pool, with no extension possible under section 246ATJ of the Building Act (except in a limited case where proceedings are on foot before the Queensland Civil and Administrative Tribunal concerning a dividing fence serving as a pool barrier). Failure to do this can result in pool owners incurring fines of $1,600 or more for a breach of section 246ATJ of the Building Act.
Where the property is sold through auction and it doesn’t have an effective Pool Safety Certificate, the owner of the property or their agent (who could be a real estate agent or an auctioneer) have the responsibility of giving copies of the Form 36 to the prospective buyer before the contract of sale is sealed. If you are a property seller and wondering where you can get a Pool Safety Certificate, our team of licensed safety inspectors have a solution to your problem. We are experienced in all matters pool fencing and barriers inspection and can guarantee you compliance to pool safety regulations when selling in Queensland.
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