Warmer weather brings more properties with pools onto the market. A swimming pool is a genuine drawcard, and it carries legal obligations in South Australia that catch buyers out. The time to deal with them is before settlement.
Who has to make the pool safe, the seller or the buyer?
The seller, up to the point the title changes hands. Under the Planning, Development and Infrastructure (Swimming Pool Safety) Regulations 2019, a transfer of title is a “prescribed event”, and the owner must have the required safety features in place before that transfer occurs. Non-compliance carries a maximum penalty of $15,000 under section 156 of the Planning, Development and Infrastructure Act 2016.
Most contracts restate it: the vendor must by law ensure the pool complies at or before settlement. After settlement the obligation is yours, and so is the cost of fixing anything short.
Do you need a pool compliance certificate in South Australia?
There is no government-issued certificate and no pool register here, which is different to some other Australian states. The vendor’s duty to make the swimming pool safe comes from the law and applies either way. Whether you get a certificate proving they have done it is a separate question, answered by the contract rather than the legislation.
The certificate comes from an inspection by an accredited building surveyor: a written assessment of the barrier, the gates, the signage and the water systems, and something concrete to point at if the property does not measure up.
Does the contract guarantee you a compliance certificate?
Not always, and this is the part worth reading properly when you are buying a house with a pool. Around seven different contract forms are in use in South Australia, and they treat pools differently.
A common form says the vendor will produce or obtain a compliance certificate before settlement if requested by the purchaser. That request carries a deadline. In one widely used contract it is the later of 14 days before settlement and the date of the contract, with time of the essence. Miss it and the vendor does not have to produce anything.
Older forms go further again. The previous REISA contract treats the pool as compliant without a certificate being requested or provided at all.
So when the contract arrives, read the pool section before you sign. If it does not require a certificate, ask for a special condition that does. Our post on conditional contracts covers how conditions work more generally.
Most purchasers don’t realise how important this section is to check until the contract is in front of them, which is another great reason for having a conveyancer read it before you sign.
What are the fencing rules for older pools?
They depend on when the pool was built, and the contract will usually ask the vendor to tick which applies. Pools approved, constructed or installed before 1 July 1993 must be upgraded to Ministerial Building Standard MBS 004 before title transfers. That standard requires a barrier restricting access by young children, plus a first aid and CPR sign at least 300mm by 300mm made from durable, weatherproof material.
Pools built after that date must meet the Building Code requirements that applied when consent was granted. Two houses on the same street can be held to different standards, so the age of the swimming pool matters more than how it looks.
What happens if the pool is not compliant after settlement?
You pay to fix it. Chasing a vendor once settlement has gone through is slow and rarely gets you anywhere. This is the biggest risk when buying a house with a pool, and it is entirely avoidable.
Request the certificate as early as the contract allows, and get the request in well before the contract’s deadline for it. If remedial work is needed, ask to be part of the decision about what gets done. We have seen a vendor meet a fence height requirement with sheets of corrugated iron. Technically compliant. Not what the purchaser had in mind.
Before you sign
Find out when the pool was built, check what the contract says about compliance, and get an inspection. The SA Government pool and spa safety page sets out an owner’s ongoing responsibilities, which are worth reading before you take them on.
Buying a house with a swimming pool works out well for plenty of people. It goes badly for the ones who leave the compliance question until after the keys change hands.
If you have a property with a pool under contract, or you are about to sign, get in touch here or call us on (08) 8261 5092.