Pool Safety Nonconformity Notice

Slip, slop, slap may protect you from the Queensland sun, but it will not protect you from a pool safety nonconformity notice when it comes time to sell your property.

Where a swimming pool does not comply with the prescribed pool safety standards, a licensed pool safety inspector may issue a Pool Safety Nonconformity Notice (Form 26). This often gives rise to an important question during a property sale: who is responsible for addressing the nonconformity when the property is changing hands?

In most cases, the seller, as the registered owner of the property at the time the notice is issued, remains responsible for complying with the notice unless the parties agree otherwise. If the seller wishes to provide the buyer with a current Pool Safety Certificate before settlement, they will generally need to undertake the necessary rectification works, arrange a further inspection, and obtain certification confirming that the pool complies with the relevant safety requirements.

However, Queensland legislation recognises that a property can still be sold without a current Pool Safety Certificate. In these circumstances, the seller must generally provide the buyer with the required notice regarding the absence of a certificate and the pool's compliance status. The buyer therefore proceeds with the purchase knowing that the pool may not comply with the prescribed safety standards.

Where a nonconformity notice has been issued, responsibility for rectification often becomes a matter for negotiation between the parties. Depending on the circumstances, a buyer may:

• Require the seller to complete all rectification works before settlement;
• Negotiate a reduction in the purchase price to account for anticipated compliance costs;
• Request that part of the settlement funds be retained until the pool is brought into compliance; or
• Agree to assume responsibility for the rectification works after settlement.

The outcome will typically depend on the contractual terms agreed between the parties and their respective bargaining positions.

Once settlement has occurred and ownership of the property transfers, responsibility for the pool will generally pass to the purchaser. If a nonconformity notice remains outstanding at settlement, the new owner will ordinarily assume responsibility for ensuring the pool complies with the applicable safety standards. This may involve carrying out the required rectification works, arranging a further inspection, and obtaining a Pool Safety Certificate.