VIC - Selling the house with the unregistered and non-compliant pool

A friend of mine is looking to buy the house with the unregistered and non-compliant swimming pool. In Victoria swimming pools had to be registered by the end of November 2020.

The vendor has inserted the special clause to the contract stating that the purchaser will accept all responsibility and cover all the cost to get the pool registered and made compliant e.g. installation of safety barriers. Also there is a clause stating that the purchase is not entitled to any compensation or delay settlement as a result of the non-registration of the pool or the non-issue of any compliance certificate.

Are these clauses legal? Somehow i thought (maybe wrongly) that you are not able to sell the house with the non - compliant pool (without compliance certificate).

Will there be any penalties or fines that the responsibility will be transferred to the new owner because the pool was not registered by the deadline?

 

This should be dealt with by your friend’s solicitor.

 

Its dubious that someone can warrant final compliance when that is a power granted to council under state law. You can sell property without compliance. But have no recourse if required to demo the pool.

 

She is not able to contact her solicitor before Monday next week. And obviously it is her business not mine.

Generally I was just wondering, if these type of clauses are legal and if there are any penalties that the purchaser will be liable for because the previous owner did not register the pool before the deadline. Someone in the forum might have experience with the matter

 

Also a title insurance issue if you know the pool is non compliant it’s not covered by title insurance

 

If a purchaser acquires a property they inherit all non-compliance with council and are as liable to a penalties as the vendor would have been. There is no defence for being a new owner or being ignorant to the legal requirements for fences and compliance. That said, the council MAY allow time to remedy the defect for a new owner before issue of penalties. This also applies to extensions and alterations and even the home construction as well.

I was engaged to assist a taxpayer who purchased a site with a new (commercial) property at the front and cleared at the back for a further property to be built. He didnt check construction approval and council ordered it be "largely" demolished. He was issued a $11K fine and threatened with further fines. He had had to strip it down to frames and a roof and it has cost $100K so far and will cost another $150K to reconstruct IF it is approved. There is a issue with plumbing and sewer that may yet see it demolished. The issue now is a major GST problem as the costs at present are a "black hole" and even GST included in costs isnt creditable as they dont relate to making any supply. Its a nightmare because he was asked but didnt engage the solicitor to check the approvals.

 

Thanks for a good advice.

Update: managed to get her to wait until Monday before making an offer, so her solicitor can review the contract. Also I adviced her that she should discuss with the solicitor, if the offer can be made subject to sighting the pool registration certificate and also subject to swimming pool safe inspection to the buyers satisfaction.

 

Wouldnt it be obvious if a pool isnt compliant?

in nsw the process would be to accept the risk of the non compliant pool, assume it has to be made compliant after settlement and adjust the offer price down for this.

 

Only if the buyer is familiar with the Victorian legislation ... and a non pool owner may very well not be.

 

Unfortunately the pool safety compliance rules in Victoria have been changed and are now much tighter than in the past. Even if the pool fence might have been compliant with the legislation when it was constucted, it might not be now under the new legislation. The modifications could cost easily over $10k.

 

Couple of comments:

1) Not sure about the area but Melbourne is hot market at the moment. I don`t think the vendor will accept an offer with any "subject to", and the swimming pool is definitely one of those.
2) Is $10k for compliance going to make a difference for the right property? I assume it`s a PPOR.
3) Engage an external consultant to be 100% sure about the cost. It`s part of the due diligence.

I would be more worried about the status of the pool and maintenance costs.

 

Not necessarily. The cost to ensures a fence is to standards will vary.

 

The new rules cover registration and inspection - they aren’t new pool compliance rules as such’. From the VBA website:

New pool and spa registration and inspection requirements
On 1 December 2019, new laws to improve swimming pool and spa safety came into effect in Victoria. They introduce new registration, inspection and certification requirements for property owners.

‘As a pool or spa owner you need to complete the following:

1. Register your pool with your local council by 1 November 2020
2. Organise an inspection of your pool barrier by a registered swimming pool inspector
3. Rectify any issues identified by your pool inspection
4. Submit a certificate of compliance to your council by the due date’

Penalties range from approx.$300 to $1,600 for not meeting the registration deadline (but I expect your friend wouldn’t be fined as they weren’t the owner at the deadline).

Has your friend actually called Council to ask what they would need to do? Or have they decided to walk away?

 

Actually pool safety compliance requirements have been tightened as well and now in some instances the old pools have to meet the safety regulations that were not in place at the time than those pools were designed, constructed and planning permits were granted. If the pool does not meet these new requirements, a compliance certificate is not going to be granted by an inspector.

We received the inspection assessment to our own pool and spa and according to the inspector our pool safety barriers were constructed according to the standards at the time. However now we need to make modifications to them, because they will not meet the current standards, that were subsequently implemented to the pools of this age. The cost will be about $5k in our case.

Miraculously today I got the same inspector to give the high level opinion over the phone to my friend based on the photos, description and measurements she took. Not binding opinion, he has not seen it, so just indicative. In her case the pool fences need to be completely reconstructed. Also, unfortunately in one area there is no fence at all and building the fence will be really difficult due to the space constraints. Under the previous standards self-closing doors from a house to a pool area were accepted, but not any more under the new standards. As a result my friend lost interest and is moving on with her house search.

No wonder that the vendor had inserted the pool related clauses to the contract.

 

Tillie - that’s not correct.

You only need to be compliant to the rules of the day your pool barrier was installed. Some councils don’t keep records, so they make up when your barrier was installed. In this case, if you have proof, you can appeal the standard and have it reverted to the standard that it should be.

Source: I’ve just don’t the VBA pool barrier inspection course

 

The VBA site actually shows has different categories for barrier compliance based on pool age - and requirements differ accordingly. See under the heading ‘If you already have a pool or spa’:
Pool safety barriers

 

That is right. There are 3 different categories about pool safety barrier requirements based on the pools age. However the requirements are generally tighter than the requirements were when some of the old pools were constucted.

 

Is there a fence installed? You could get a private inspector to take a took and advise if it’s up to scratch.

 

Massive thank you for the help. I was not aware that you can appeal aganist the new requirements and the inspector certainly did not tell us that. I definately need to investigate this further. Might save us $5k. The previous owners, who installed the pool and spa well over 20 if not 30 years ago, left us a massive amount paper work related to the house. I am pretty sure that I saw the plans for the pool and spa amongst the paperwork.

 

As stated in my previous post my friend has moved on and she is not considering the house any more. There is no fence installed between the house and the pool and it will be difficult to install without ruining the aspect.