Selling your property? How to make a binding contract and not be sued! – Part 5 – Swimming Pool Certificates
In the last four articles we discussed what information a Seller should disclose to a Buyer when selling property and the potential consequences of failing to do so. In addition to the points already discussed, Sellers and Buyers should also take note of the following where the property being sold/purchased includes a dwelling with a swimming pool -
Pool Safety
Does the Seller need to have a current Pool Safety Certificate when selling a property that has a pool on it?
No!? The Seller must in that instance provide a Buyer with a Form 36 – ‘Notice of NO Pool Safety Certificate’ prior to the Buyer entering into the Contract. This form is also required to be submitted to the QBCC prior to settlement by the Seller. If the Seller has provided the Buyer with this Form 36, it is up to the Buyer to obtain the Pool Safety Certificate at their sole expense within 90 days from settlement. Buyers can be fined if they fail to do so.
Most Sellers want the maximum price for their property and so will chose to obtain a Pool Safety Certificate prior to putting their property on the market – to have it ready to hand to a potential buyer when entering into a Contract. The most common type of Pool Safety Certificate is a Form 23 – Pool Safety Certificate which is valid for 2 years from the date of issue. Another form of Pool Safety Certificate is a Final Building Certificate.
In the standard Queensland Contracts for Residential Land and Houses, there is a section in the Contract for the Seller to note whether or not there is a pool on the property.
If the Form 23 has expired prior to settlement, then depending on how the Contract has been completed and what special conditions are included, it may be up to the Buyer to arrange a pool safety inspection prior to settlement (at the Buyer’s cost). If there are no compliance issues, the Contract can proceed to settlement.
If there are compliance issues and works required to the pool prior to a Compliance Certificate being issued (e.g. repairs are required to the pool fence or gate), then the Seller has until the ‘Pool Inspection Date’ noted in the Contract to complete the works (at the Seller’s expense) and obtain a new Compliance Certificate to provide to the Buyer.
If the ‘Pool Inspection Date’ is not completed in the Contract, then the Seller has to complete the works by the Building and Pest Inspection Date or 2 business days prior to settlement – whichever is the earlier.
If the Seller does not attend to the works required by the due date, then the Buyer may have rights to terminate the Contract.
Sellers should always ensure they have a valid and current Pool Safety Certificate to attach to the Contract to avoid giving the Buyer a right to terminate the Contract.
If the Seller fails to comply with providing the required notices or has never obtained a Pool Safety Certificate, they are at risk of being fined over $2,000.00.
However, if the Seller has made the correct disclosures in or prior to the Contract and handed to the Buyer the correct forms, then it becomes the Buyer’s responsibility (the Seller cannot be fined) and the parties must proceed to settlement.
Summary
Whenever buying or selling property (including farmland), it is essential that you engage an experienced property lawyer to assist you to ensure you enter into a valid Contract and all important information relating to the property is disclosed, which will reduce any issues or complications arising during the conveyancing process or following settlement.
The content of this column is to provide a general guide on this topic. Professional advice should be sought about your specific circumstances.