Advice needed: settlement protection for purchaser - swimming pool

I purchased a farm with settlement due tomorrow! The sale contract includes a pool certificate expired in July 2019. When I first inspected the property, it did not have a safety fence. When I asked about it, the vendors said the property was exempt, being rural exceeding 2 ha. Finally, a pool certificate of non-compliance was obtained by vendors and made available last week. It indicates that a safety fence is required. My solicitor asked for 10K reduction in settlement to cover the pool fence, and the vendors refuse to pay a cent. What are my rights, as purchaser?

 

The contract may have a clause or Special Condition for pool fencing - your solicitor can advise.

 

Was any of the related discussion via email (record of) or just verbal ?

If the included pool certificate was expired and you accepted the response without investigating actual requirements (due diligence) then I expect the vendor will decline your request.

Unless there is something in the contract specifically addressing this there isn't anything to stop settlement, and council will allow you time to bring the pool up to compliance.

How did you come up with a figure of $10k to fix ?
You might have stood a chance asking to share the costs with the vendor, but it sounds like they knew it wasn't compliant, and you didn't check prior to signing

 

Royal Lifesaving 19/20 report

Pool safety measures help to reduce the overall loss of life to 28.
Every child should be taught basic swimming and safety

 

$10k seems a lot for a pool fence. Perhaps get a proper quote and then ask for the exact amount off.

 

For NSW, isn't a pool compliance certificate, or lack of one, disclosed in the contract? Shouldn't buyers consider this before deciding on an offer?

 

As a buyer its your obligation to ensure you contract for an agreed price and consider any defects in compliance which your will incur on acquisition. The need to fence is one such obligation. Your solicitor should be advising. A vendor doesnt need to drop the price one cent. Its a bit illogical to think its a defect like termites. Its like me offerring $10K less as the house is not air conditioned. If you want AC install it. If you dont want to buy dont make a offer. The lack of fencing seems very evident to any inspection of the dwelling. Stevie Wonder could see it wasnt compliant.

You shouldnt have signed the contract before getting legal advice. A defect in the contract by not having a cert of non-compliance or cert of compliance may give you a option to rescind. It would need legal advice. It should have been evident before you signed.

Info for Selling a Property With a Pool in NSW | iCertified

 

You were happy to have a property without a pool fence?

 

There was no certificate of non-compliance in the contract. One was obtained after exchange at my request, to clarify if fencing was required or not.

 

The Act includes fencing exemptions for some rural properties. It wasn't a matter of me being happy or not, but whether fence was required by law for this specific property. I inquired before contract exchange and owners replied they were exempt under the Act. When they finally got a non-compliance Certificate, it turned out what they advised was incorrect.

 

It seems that the act allows rescission of the contract within 14 days of exchange if no certificate is provided? But assuming you are well past that, not much you can do about it. Who told you the >2ha thing doesn't apply here?

 

Vendors through their solicitor.

 

https://www.google.com/url?sa=t&sou...FjABegQIARAE&usg=AOvVaw32O-_5OkAeq6hzkBDwi8HZ
As per the above link, a certificate of compliance or non compliance is req'd when selling a house in NSW, at no point could I find that not having a certificate will prevent settlement.
https://www.google.com/url?sa=t&sou...FjAMegQIKRAB&usg=AOvVaw28vvu3wdX-jG-97Y3Y9gYJ

 

Are you saying that you can settle with a contract of sale that does not comply with the law??

 

The act also seems to state the remedy: that the purchaser can rescind within 14 days. Ask your lawyer about what it means after the 14 days and you don't rescind?

 

It was passed the 14 days. But I'm curious on two related matters:
1. Whose responsibility is to issue a contract of sale that is compliant with the law?
2. Whose responsibility is to check that a contract of sale is compliant with the law?
Because there is a selling agent, a vendor' solicitor and a purchaser' solicitor in this case, and I - the purchaser, identified the non-compliance issue; and I don't think it was my responsibility to do so?!

 

The links I posted said
"It is now law that a property being sold with a pool or spa must have a Certificate of Compliance or Certificate of Non Compliance in the Contract of Sale"

You were provided a certificate of non compliance (at some point)

Nowhere could I find that a property can't be sold without it.

Plenty of properties with non compliant issues sell every week anyway !

 

Ask your solicitor whether that would hold up in court.

 

I wish it were that simple! Solicitor says is a gray area. Would I want to go to the expense of finding this out in court? No. I gave up making any demands for the fence and concluded it is much less stressful for me to just install it myself.

 

If this was such a big deal, it should have been contemplated in the contract. (by you)

It just sounds like you want the vendor to pay for your pool fence. Would they have accepted a lower price had you known that a pool fence was required?