Pool safety certificates when selling a Queensland home

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Kooky

Builder of Shaka, the payment router that pays every agent their commission on closing date.

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A swimming pool is one of the few features of a Queensland home that comes with its own paperwork at sale. Long before a buyer asks about the filter or the tiles, the law asks a narrower question: is the barrier around the water safe for a small child, and is there a certificate that says so?

The rules sit in Queensland's building legislation and are run day to day by the Queensland Building and Construction Commission (QBCC), which keeps the state's pool register and licenses pool safety inspectors. This guide sets out what the QBCC requires of a seller, how the certificate is obtained, what an inspector measures, and what happens when a pool does not pass. It covers houses with their own pool and units that share one. It describes the general rules as the QBCC publishes them: a particular pool, fence or title can raise questions that only an inspector on site can answer.

Queensland Building and Construction Commission, "Buy, sell or lease property with pool" and "Inspect and certify a pool".

Which pools the law covers

The definition is wider than most owners expect. According to the QBCC, a swimming pool is any structure capable of holding 300mm or more of water that is used mainly for swimming, wading, paddling or similar activities. That takes in the in-ground pool and the above-ground pool, and also wading pools, blow-up pools, portable pools and spas that can hold that depth.

Fishponds and ornamental structures designed purely for decoration fall outside the definition, the QBCC says, unless they are also used for swimming. A spa is inside it, and the commission's guidance on the safety standard adds a point that catches many sellers: a spa with a lockable lid must still have a fence around it.

The laws apply across the state, at private homes and at unit complexes, and at hotels, motels, caravan parks and other accommodation. Every regulated pool must be registered with the QBCC, which can fine an owner who does not register. The register is public and searchable by address, and it shows whether a property has a current pool safety certificate. Anyone on the buyer's side can check it, and a seller can look there first.

One distinction runs through everything that follows. A non-shared pool serves a single dwelling, typically the pool in the back yard of a house. A shared pool serves more than one, typically the pool in an apartment or townhouse complex, and its owner is usually the body corporate. The two have different certificate lives and different people responsible for them.

What a pool safety certificate is

A pool safety certificate is the document that states a pool complied with Queensland's pool safety standard on the day it was inspected. The QBCC's guide for homeowners identifies it as Form 23 and says it is issued by a licensed pool safety inspector.

Its life depends on the kind of pool. A certificate for a non-shared pool is valid for two years. A certificate for a shared pool is valid for one year. A seller whose pool was certified for a previous sale or a lease may therefore already hold a valid certificate, or one that has quietly expired.

There is a second route for a new pool. When a pool or its fence has just been built or altered under a building approval, the building certifier's final inspection certificate, Form 17, does the same job, and the QBCC's homeowner guide gives it the same validity periods. An owner who built a pool last summer and is selling this winter may not need a separate inspection at all.

The certificate attaches to the pool, not to the person. It is not lost when the property changes hands, and a certificate obtained for a sale that later falls through can serve the next buyer, provided it has not run out.

The seller's two options

The QBCC's guidance gives a seller two ways to meet the law, and only two.

The first is to hand over a certificate. If the property has a current pool safety certificate, the seller must give the buyer a copy before settlement. The second is to say plainly that there is none. If the seller cannot obtain a certificate, the QBCC says, the seller must lodge a Form 36, the notice of no pool safety certificate.

What the table shows is that the law does not force a seller to make the pool compliant before selling. It forces the seller to be open about whether it is certified, and it places the task of certification on whoever owns the pool once 90 days have passed from settlement. For a house, that is the buyer.

This is one of the clearer differences between selling and leasing. For a property with its own pool, the QBCC's rule for leasing is that the owner cannot enter an accommodation agreement without a certificate in effect. A sale can proceed without one. A tenancy cannot begin without one.

How Form 36 works

Form 36 is a notice, and its audience is wider than the buyer. The QBCC's instruction is that where there is no active pool safety certificate for the property, a Form 36 must be lodged with the QBCC and a copy provided to the buyer before settlement. The form can be lodged online through the QBCC's portal, by email, by post or in person at a service centre.

At auction the timing moves earlier. If a property with a pool is being sold at auction and there is no current certificate, the owner or their agent must give prospective buyers a copy of the Form 36. Bidders are entitled to know before the hammer falls that the job of certifying the pool will be theirs.

The buyer's side of the form is the 90 days. A person who buys a property without a pool safety certificate must get one within 90 days of settlement, the QBCC says. The clock starts at settlement, not at the contract date, and it runs whether or not the new owner has moved in.

That last point is easy to miss. The duty to keep a pool fenced to the standard does not depend on a sale. A local council can inspect at any time, according to the QBCC, and can fine or prosecute the owner of a non-compliant pool. The certificate and the Form 36 concern what a buyer is told. The safety obligation is continuous.

Units, townhouses and shared pools

In a complex, the person selling the unit is not the person who owns the pool. The body corporate usually is, and the body corporate is the one that arranges inspections and holds the certificate. The seller's task is to obtain a copy and pass it on.

Because a shared pool's certificate lasts one year, a well-run complex renews it annually and the seller simply asks the body corporate manager for the current one. The QBCC also requires owners of shared pools to display the current certificate near the main entrance to the premises or at a gate or door giving access to the pool, so its existence is easy to confirm on a walk through the grounds.

Where there is no current certificate, the seller of the unit lodges a Form 36 as the seller of a house would. The consequence then falls on the pool's owner, usually the body corporate, which must obtain a certificate within 90 days of settlement and give the buyer a copy. A unit seller in that position is, in effect, putting the body corporate on notice, and it is courteous as well as practical to tell the committee before the form is lodged.

What the inspector measures: the fence

The pool safety standard is about one thing: stopping a young child from reaching the water unsupervised. Almost every measurement in it follows from the size and climbing ability of a small child. The QBCC publishes the main ones for owners, with the caution that its pages are a guide and that a licensed inspector decides compliance on site.

The fence has to be sound as well as tall. The QBCC describes a compliant barrier as rigid and strong, with all parts secured by screws or permanent fixings: no broken rails, no wobbly posts or palings, no loose glass. Glass panels must be reinforced glass, show no sign of fracture and sit firmly in place. On a sloping or stepped site the 1200mm must be kept along the whole run.

The ground matters too. The surface under the fence has to be solid, the commission notes, because sand or mulch lets a child scrape out a gap of more than 100mm.

A boundary fence can serve as part of the pool barrier if it is at least 1200mm high, non-climbable on the outside and free of climbable objects within 300mm on the inside. The QBCC adds that the pool owner pays the full cost of any work needed to make a dividing fence comply. Where a clear zone on the outside cannot be achieved, as on a tight boundary, the alternative is a fence at least 1800mm high with the 900mm non-climbable zone on the inside, measured down from the top.

The walls of an above-ground pool or spa can themselves be the barrier if they are at least 1200mm high and non-climbable, with the ladder or steps enclosed by a compliant gate.

Gates, doors, windows and the CPR sign

More pools fail on small things than on the fence itself, and most of the small things are within an owner's power to fix before the inspector arrives.

The gate comes first. It must not open towards the pool. It must close by itself from any open position and latch securely without being pushed. A latch on the outside must be at least 1500mm above finished ground level. Hinges that stick out more than 10mm must be at least 900mm apart, or the lower one must carry a 60-degree safety cap, so that they cannot be used as a step. Propping a gate open is an offence under the Building Act 1975, the QBCC points out.

The non-climbable zone is the second. The QBCC's list of what must be moved out of it reads like an inventory of an ordinary back yard: barbecues and outdoor furniture, pot plants, raised garden beds and edging, toys and trampolines, air-conditioning units, taps, umbrellas, and the branches of trees and shrubs. Anything within 900mm of the outside of the fence that offers a foothold counts. Branches within that distance should be trimmed.

Doors are the third. No door may open directly from the house onto an outdoor pool or spa area. Windows that open towards the pool area must be restricted to an opening of no more than 100mm, by a permanent security screen or by permanent fixings such as screws. Window locks do not count, because they can be unlocked.

Last is the sign. A CPR sign of at least 300mm by 300mm, made of durable weatherproof material, must be attached to the pool fence or displayed near the pool where a person near the pool can easily see it. It must show how to perform CPR, starting with 30 chest compressions followed by two breaths, and carry a prominent statement about calling 000. An old, faded or outdated sign is among the cheapest defects to cure.

If the pool does not pass

A failed inspection is common and is not a catastrophe. The QBCC sets out a defined path.

Two features of this path matter to a seller. The first is that the same inspector must be called back. An owner cannot shop for a second opinion while a nonconformity notice from the first inspector is outstanding. The second is the consequence of doing nothing: the QBCC says that failing to arrange the reinspection within three months triggers notification of the local council and the possibility of fines. An inspection therefore starts a clock that does not stop because the sale has been delayed.

An owner who disagrees with a nonconformity notice can appeal to the Development Tribunal within 20 days of the notice being issued, according to the QBCC.

Where a fence has to be rebuilt, a temporary fence can stand in for a limited time. The QBCC allows temporary fences for a maximum of three months with the inspector's approval.

Timing the inspection in a sale

Because the certificate can be obtained at any point up to settlement, a seller has a choice of timing, and the choice has consequences.

Inspecting before the property is listed gives the most room. Defects surface while there is time to fix them without a buyer watching the calendar, and the listing can state that a current certificate is held. Sellers considering an auction have an added reason: without a certificate, the Form 36 has to be in bidders' hands beforehand.

Inspecting after a contract is signed concentrates everything into the settlement period. If the pool fails, repairs and the reinspection must fit before settlement, or the seller falls back on Form 36 with the buyer's knowledge.

Choosing Form 36 from the outset is the third course, and a lawful one. It suits a seller who cannot or does not wish to do the work: an estate, an owner living elsewhere, a property being sold for redevelopment where the pool may be removed. The cost does not vanish. It passes to the buyer along with the 90-day deadline, and a buyer may take that into account in what they offer. Whether that matters depends on the property and the buyer.

Whichever course is taken, the certificate's two-year life for a non-shared pool means an early inspection is rarely wasted. A certificate issued in August is still current for a settlement the following winter.

What the buyer takes on

For the buyer of a house sold with a Form 36, the first task as owner is the pool. A certificate must be obtained within 90 days of settlement, which means booking an inspector, receiving a pass or a nonconformity notice, and completing any repairs inside that period.

Sellers do well to understand this, because it shapes the questions they will be asked. A buyer facing an uncertified pool will want to know when the fence was built, whether it has ever been certified, and what an inspector would be likely to find. A seller who can answer, and better still can show an inspector's findings, removes an unknown from the negotiation.

For the buyer of a unit, the equivalent task belongs to the body corporate, which must obtain the certificate within 90 days of settlement and provide a copy.

A pool is sold twice: once as a feature of the home, and once as a barrier that an inspector has to measure. The second sale is the one with a deadline.

Either way, the pool register records the outcome. Once a certificate is issued it appears against the address, where the next buyer, tenant or council officer can find it.

Kooky, from Shaka

Kooky edits Queensland Estate and builds Shaka, the payment router he made for Queensland property professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

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