A swimming pool can be a wonderful feature of a home; however, if you are buying or selling property in NSW, a pool also comes with important legal and safety requirements.
Before a property with a swimming pool or spa pool is sold, specific documents must be included in the contract for sale. Buyers should also understand whether the pool complies with NSW requirements and who will be responsible for addressing any matters of non-compliance. Understanding these obligations early can help buyers and sellers avoid unexpected costs, delays and complications during the property transaction.
What do you need to know about pool compliance when buying or selling property in NSW?
What are the swimming pool compliance requirements in NSW?
In NSW, swimming pools and spas are subject to safety requirements designed to reduce the risk of drowning, particularly among young children. These requirements generally include appropriate pool barriers, gates and other safety measures, depending on the pool and the legislation applicable to it. Pool owners must also ensure that their pool is registered on the NSW Swimming Pool Register.
The requirements that apply to a particular pool can depend on factors including when it was constructed, its location and whether any relevant exemptions or transitional provisions apply. For this reason, a pool should not be assumed to comply simply because it has an existing fence or has been used for many years.
What is a compliance certificate?
A certificate of compliance confirms that the pool or spa has been inspected and meets the applicable safety requirements at the time of inspection.
In NSW, there are a few important things to know about these certificates:
- Who can issue one? An authorised local council officer or an appropriately registered swimming pool inspector.
- How long is it valid? A certificate of compliance is generally valid for three years.
- How do you obtain one? Pool owners can arrange an inspection through their local council or a suitably qualified private certifier.
If the pool does not meet the relevant safety requirements, the inspector may identify defects that need to be addressed before a certificate of compliance can be issued. They will then issue a non-compliance certificate and report (S22E Report) containing items for rectification.
Do you need a pool compliance certificate to sell a house in NSW?
When selling a residential property with a swimming pool or spa, the contract for sale generally needs to include the relevant pool registration evidence and one of the following:
- A registration certificate;
- If compliant, a valid certificate of compliance.
- If the pool/spa forms part of a new build, a relevant occupation certificate issued within the previous three years, together with the required evidence of pool registration.
- If non-compliant, a valid certificate of non-compliance, and associated S22E Report.
The relevant documentation should be considered when preparing the contract, before the property is advertised for sale. If the required document is missing, the purchaser may have a right to exit the contract within 14 days after exchange, provided settlement has not already occurred. This is one reason it is important to involve your property lawyer early when preparing to sell.
Preparing a property for sale involves other important legal requirements. Read our guide to what sellers need to disclose when selling property in NSW for more information.
Pool compliance is an important consideration when preparing to buy or sell property in NSW. In the latest episode of The Property Brief, our Property Law team discusses swimming pool compliance requirements and why understanding the relevant documentation before exchanging contracts is so important.
Can you sell a property if the swimming pool is not compliant?
In some circumstances, yes. A property with a non-compliant swimming pool may still be sold if a valid certificate of non-compliance and the associated report are attached to the contract and the applicable legal requirements are satisfied. However, this does not mean that outstanding safety issues can simply be ignored.
A certificate of non-compliance identifies defects that need to be addressed. Depending on the circumstances, the purchaser may become responsible for rectifying those defects after settlement. Where the usual 90-day rectification period applies, the purchaser must complete the required work and obtain a certificate of compliance within 90 days after settlement.
Different considerations arise where the pool presents a significant risk to public safety. These situations require particular attention before the parties proceed. Sellers should discuss any identified defects with their property lawyer before exchanging contracts, rather than assuming responsibility will automatically transfer to the buyer.
What should buyers check before purchasing a property with a pool?
If you are considering buying a property with a swimming pool or spa, pool compliance should form part of your pre-purchase investigations. Important considerations include:
- Whether the pool is registered on the NSW Swimming Pool Register.
- Whether a valid certificate of registration, certificate of compliance, relevant occupation certificate or certificate of non-compliance is included in the contract.
- Whether any defects or outstanding rectification works have been identified.
- Whether the pool barrier, gates and surrounding areas appear to meet applicable requirements.
- Whether further inspection or specialist advice is appropriate.
- Whether any necessary rectification work could affect your budget or settlement arrangements.
A certificate is an important document; however, buyers should still consider the condition of the pool and its surrounding structures. If a certificate of non-compliance is provided, you should understand what work may be required and the potential cost before committing to the purchase. Pool compliance is just one consideration when purchasing property. Read our NSW property due diligence checklist for other important checks to consider before signing a contract.
Who is responsible for fixing a non-compliant pool?
Responsibility depends on the circumstances, the applicable legislation and the terms of the contract. Where a valid certificate of non-compliance is included in a sale contract, and the relevant requirements are satisfied, the purchaser will generally become responsible for obtaining compliance after settlement.
The usual timeframe is 90 days from settlement, subject to the rules concerning significant public safety risks. However, buyers and sellers may negotiate contractual arrangements dealing with identified defects, including whether work is to be completed before settlement. These arrangements should be clearly documented rather than relying on informal discussions. Your property lawyer can explain how the certificate and contract terms affect your responsibilities. Before committing to a purchase, it’s also important to understand the terms of your contract. Our guide to what to check in a NSW property contract before signing explains some of the key considerations.
What if the property is part of a strata scheme?
Pool compliance can be more complicated where a swimming pool is located on common property within a strata or community scheme. The usual contract attachment requirements do not apply to certain lots in schemes containing more than two lots. However, this does not mean that shared swimming pools are exempt from pool safety laws. Responsibility for registration, maintenance and compliance may rest with the relevant owners corporation or community association.
If you are purchasing a strata property with access to a shared pool, reviewing the strata records and understanding any outstanding compliance or maintenance issues can be an important part of your due diligence.
When should sellers arrange a pool inspection?
Ideally, well before the property is advertised, and prior to the preparation of contracts. Arranging an inspection early gives sellers time to identify potential problems, obtain the relevant documentation and consider whether any rectification work should be completed before the sale. Leaving these matters until a buyer is ready to exchange contracts can create unnecessary complications.
For buyers, the best time to raise pool compliance concerns is before signing the contract or bidding at auction.
Buying or selling property with a pool in NSW?
At Southern Waters Legal, our Property Law team can assist with preparing and reviewing contracts for sale, explaining pool compliance documentation and advising on the legal responsibilities that may arise when buying or selling property with a swimming pool.
If you’re preparing to buy or sell a property with a pool, contact our Property Law team before exchanging contracts so you can understand the requirements and any potential issues. For further information about pool registration, inspections and safety obligations, visit the NSW Government’s swimming pool owner obligations guide.
This article provides general information only and does not constitute legal advice. Pool safety requirements, contract obligations and the responsibilities of buyers and sellers depend on the property and individual circumstances. Obtain advice about your particular transaction before proceeding.
