Pool Fence and contract issue

Hello,
I'm in Western Australia the process of purchasing a property in Huntingdale and we are in the final stages of settlement. My contract has the special conditions
Joint form of general conditions for the sale of land 2018
Building inspection for Major structural defects
Termite and pest
State Government regulations (swimming pool/spa, smoke alarms and RCD)

The annexure states that the seller represents and warrants to the buyer that at settlement: the swimming pool/spa safety barriers will comply with the requirements of all authorities and the buyer will not be required to undertake any works to the pool safety barriers.

I had a building inspection done and the building inspector noted *Serious safety hazards: insufficient glass fencing around pool where decking is, recommended engaging a builder to investigate further to prevent any injury)

The issue is the fence is 1200 high, but a wood deck has been build up to the edge making the height 1100mm high instead of the required 1200mm *The inspector did not go into detail with this, he just said insufficient glass fencing around pool where decking is

The defect was reported to the seller by my settlement agent but the seller has a certificate of compliance from the council from 2019 saying that the fence is compliant (The decking was their at the time of inspection according to pictures I have seen, but I don't know how it passed) everyone I have spoken to says that it is not legal and will not pass inspection if done today.

The seller is being really difficult and will not allow any more inspections of the property, I requested a compliance check by the local council at my expense and the seller will not allow access to the property for any type of inspection.

My question is what do I do now, settlement is going ahead within the next 2 weeks and I don't know what I can do about this, my settlement agent says theirs nothing they can do and we cant force an inspection, and a lawyer will cost me too much money I think.

Thanks for any help you can provide.
Anton

 

Yes, since the deck is there the glass would need to be about 1300 to 1350 high

 

Have you taken the photo to council and asked for confirmation of compliance?

 

Ive sent an email to the council with a picture, but not one with a measuring tape, the seller wont allow access so I cant get a more detailed one. Ive asked the council what they can do, if they have the power to inspect it without the sellers approval based on my report and the image I sent them. I'm waiting on a reply but that could take a while.

The seller wont entertain a reduction of price, their position is the fence is compliant and just deal with it, but they are stopping me from actually getting the compliance checked by council (seems like a really sucky loophole, you cant fail a compliance if you don't allow a compliance check)

 

I don't think so? If I can get something from the council then maybe, but they cant take my word for it, they would have to inspect it themselves I'm sure which I wouldn't be able to arrange till after settlement.

I was wondering if Clause 15.3 of the 2018 general conditions could apply.
Claim for compensation by Buyer:
If the buyer claims: a)There has been an error or misdescription of the property in the contract and b) to be entitled to compensation:
The buyer must give to the seller a notice which specifies the basis of the claim and compensation required by the buyer not later than 10 Business days after the possession date.

 

Maybe too late, but is this something Title Insurance would cover?

 

I would think you could go the compensation route, although would drag out forever no doubt.

The compliance thing is black and white. If it's under 1200mm it doesn't comply it doesn't matter what certificates they have. Building and pest should have picked this up aswell so I'd be asking them the question why they didn't see it aswell.

If I was in your position I'd try putting the compensation clause out there and see if they budge. Maybe check with the conveyancer around requirements of using that clause and any specific notices you will need to send post settlement etc.

Those glass panels in Qld are normally around 250/panel so if it's only a few panels it might not be too bad but I'd hate to pay for that just on principal really.

 

Check the date of the compliance certificate, pools must be inspected every four years. If it's close to the 4th year anniversary, push for the inspection however, it sounds like you will have to grin and bear it.

(Was this decking required to be approved by council? Has it been installed at the right height?)

 

What did your solicitor advise ? Is it a materially signifcant issue affecting the contract ? What remedies are available ?

The inspection seems to indicate a deck height within the arc from the fence was changed after the fence was installed to affect the compliant height. This renders any fence non-compliant usually.

Image suggests 4 panels of glass may need to be made higher. Bunnings ? If not made to measure and thickness. Pretty simple if the supports are accessable. Unscrew hex / allen key. Slide in/out. Take glass to recycling (or a glass store) and DONT PUT in bin.

 

Yeah this seems like a pretty easy issue for a conveyancing solicitor to deal with.

 

That was my problem, my settlement agent said their was nothing I could do. Unless I went and saw a lawyer for legal advise, which would cost me too much money. This fence could he fixed for 5k, but I don't believe it is my responsibility to pay for it.

 

You should have used a conveyancing lawyer. Which usually costs the same or only a little bit more than a non-lawyer settlement agent.

 

Of course. Seeing a conveyancer for legal advice is always cheaper. And so certain. Must send that tip to Gina Reinhardt and her family squabbles. Eddie Mabo used a conveyancer ?