Pools fail to comply with NSW regulations putting house vendors at risk: survey

About a third of Sydney houses with backyard pools on the market failed to comply with new NSW regulations requiring pools to be registered, and for sales contracts to include a certificate of compliance or non-compliance with rules designed to reduce injuries and drownings.

Although pool registrations have risen 10 per cent since the rules were introduced on April 29, homeowners who haven't registered their pools may be identified by an eye in the sky. Many councils plan to use satellite imagery, as well as development applications, to spot unregistered pools, the NSW Minister for Local Government Paul Toole told Fairfax Media.

According to a survey by property specialists Aitken Lawyers of 60 properties with pools for sale on Domain, which is owned by Fairfax Media, more than a third of homes with pools were in breach of the new rules. It compared listings with government records on the Swimming Pool Register and reviewed sales contracts. A similar search for homes with pools on other property websites had similar results.

Some contracts included outdated clauses that were wrongly thought to indemnify both parties.

Following questioning by the law firm and by Fairfax Media, many agents registered the pools on the government's site. Some said they had also organised for a private or council inspector to inspect the pool to provide the appropriate certificate.

Of the 20 that were non-compliant, only one had a non-compliance certificate required by law.

These non-compliance certificates rate problems by severity, and identify problems that a buyer must fix within 90 days of settlement.

For instance, a vendor of a property in Hornsby did the right thing by attaching a non-compliance certificate. The certificate said the swimming pool did not pose a significant risk to public safety, but it had gaps under the pool barrier greater than 100mm that the buyer had to address.

According to Julian Peters, special counsel with Aitken Lawyers, failure to comply with the current regulations posed risks to both vendors and buyers. "If the certificate (of compliance or non compliance) is not attached, the buyer has the right up to settlement to rescind and walk away," said Mr Peters.

If the property had a non-compliance certificate, the buyer had 90 days to fix problems, otherwise council can come after the owners.

Mr Peters said if a pool remained non-compliant it was likely that a home owner's insurance would not protect the owner if he or she was sued by someone who was hurt, such as a child who falls into a pool.

Of the 1000 children who have been hospitalised after falling in backyard pools in the past 10 years, 60 have drowned and 70 suffered brain damage.

Tim McKIbbin, the CEO of the Real Estate Institute of NSW (REINSW), said the industry had been preparing agents for these changes for several years, yet it often took the market some time to adjust.

When properties were scarce as in the current market, the risk to vendors wasn't as great as when the market contracted.

The CEO of the Swimming Pool and Spa Association, SpirosDassakis, said his organisation had received many calls from confused homeowners who were looking for advice. His members were also receiving last minute calls from property owners.

"We are finding certifiers called out the afternoon of, the night before, the week before, a property goes to auction," he said.

He wasn't surprised by the confusion or conflicting opinions on whether a pool complied or didn't. A survey by his organisation of more than 100 pool certifiers found widespread confusion:

-68 per cent of respondents had inspected pools and found that a previous council, inspector or certifier had got it wrong;

-72 per cent of respondents believed not enough had been done to educate pool owners, purchasers, lawyers and real estate agents on the new rules; and

-55 per cent of respondents did not believe that government had listened to industry stakeholders over the last 4 years.

Mr Dassakis called on the government to establish an independent pool safety council to provide certainty and give advice to industry and homeowners.

After repeated delays, these new laws do not apply to properties with more than two lots and a shared pool, such as units in strata complexes or community schemes.

August 13 2016 / Sydney Morning Herald

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