This is a reminder that after 29 April 2016 properties in NSW with either a swimming pool or a spa pool may need a valid certificate of compliance or a relevant occupation certificate prior to being sold or leased.
What does this mean?
The Swimming Pools Amendment Act 2012 (NSW) inserted new provisions into the Conveyancing (Sale of Land) Regulation 2010 and the Residential Tenancies Regulation 2010 (clause 40A in the standard form agreement) requiring either a certificate of compliance or occupation certificate (which must be less than three years old and covers the pool) or certificate of non-compliance to be affixed to either the contract for sale or lease agreement.
Both outdoor and indoor pools and spa pools are included but not spa baths. A swimming pool is defined by section 3 of the Swimming Pools Act 1992 (NSW) as:
“an excavation, structure or vessel:
(a) that is capable of being filled with water to a depth greater than 300 millimetres, and
(b) that is solely or principally used, or that is designed, manufactured or adapted to be solely or principally used, for the purpose of swimming, wading, paddling or any other human aquatic activity,
and includes a spa pool, but does not include a spa bath, anything that is situated within a bathroom or anything declared by the regulations not to be a swimming pool for the purposes of this Act.”
Non-compliance can have significant consequences. For instance, if you are selling your property and required to have a certificate, yet you do not affix it to the contract for sale the purchaser can rescind the contract within 14 days of exchange.
I live in a strata or a community title scheme do these changes apply to me?
The Conveyancing (Sale of Land) Amendment (Swimming Pools) Regulation 2016 (NSW) has now clarified the situation. These Regulations come into effect on 29 April 2016 and have the effect that if the contract for sale of land relates to a strata scheme or a community scheme that comprises of more than two lots, or the contract is an off-the-plan contract, a certificate of compliance, occupation certificate (which must be less than three years old and covers the pool) or certificate of non-compliance is not required to be included in the contract for sale.
For investor lot owners, the Residential Tenancies Amendment (Swimming Pools) Regulation 2016(NSW) has a similar effect and swimming pool certificates are not required to be provided along with any residential lease.
What does this mean? It means most strata or community title lot owners will not need to obtain the compliance certificate, occupation certificate or certificate of non-compliance and provide it with their contract for sale or with a residential tenancy agreement when leasing their properties. The requirement to do so only effects schemes that have two or less lots.
I’d like to know if the pool is compliance anyway, how can I check if a swimming pool already has a certificate of compliance?
Information on registered pools and whether a certificate of compliance has been issued is provided on the NSW Swimming Pool Register which can be searched at www.swimmingpoolregister.nsw.gov.au.
Where there is a pool on common property, such as strata or community title property, does every unit owner need to have the pool inspected separately?
Your owners corporation, community, neighbourhood or precinct association should arrange for the swimming pool to be inspected and obtain the certificate of compliance. Individual lot owners may access the certificate of compliance through the Swimming Pool Register.
Any Further Questions about strata or community titles law?
Call Kerin Benson Lawyers on 02 8706 7060 or email allison@kerinbensonlawyers.com.au or enquiries@kerinbensonlawyers.com.au