As of 20 January 2022, Queensland’s standard REIQ residential Contracts include a new clause in relation to the Seller’s obligation to provide Pool Compliance Certificates. Clause 5.3(1)(e) replaces the now deleted clause 4.2.
What is a Pool Compliance Certificate?
Pool Compliance Certificate within a standard residential REIQ Contract means:
a Pool Safety Certificate that is granted on the inspection of a regulated pool for the purpose of determining its compliance per section 231C(a) of the Building Act 1975 (Qld);
a final inspection certificate or certificate of occupancy to the extent that it relates to pool compliance pursuant to section 246AN(2) of the Building Act 1975 (Qld); or
an exemption issued under section 245B(5) of the Building Act 1975 (Qld) due to impracticality.
New Clause 5.3(1)(e)
The new clause 5.3(1)(e) requires that the Seller provide the Buyer with a current a Pool Compliance Certificate on or before settlement. The exception to this requirement is where a Form 36Notice of No Pool Safety Certificate is provided to the Buyer before their entry into the Contract.
Under clause 5.3(1)(e), where the property includes a regulated non-shared pool, the Buyer will have a right to terminate the Contract where the Seller has failed to provide a:
Form 36 prior to the Buyer entering the Contract; and
Pool Compliance Certificate on or before settlement.
Implications for Sellers
a person looking to sell their property with a non-shared regulated pool should be aware of their pool compliance
where a pool is not compliant, it is in the interest of the Seller to provide a Form 36 prior to the Buyer signing the Contract
Sellers who have not provided a Form 36 prior to the Buyer signing the Contract must arrange for a Pool Compliance Certificate prior to settlement or the Buyer may elect to terminate the Contract
Implication for Buyers
a Buyer can terminate a Contract if they have not been provided a Form 36 before they signed the Contract and have not been given a Pool Compliance Certificate by settlement
a Buyer should request a copy of the Pool Safety Certificate prior to signing the Contract
prior to signing the Contract, the Buyer may elect to include a Special Condition making the Contract conditional on the Seller providing a Pool Compliance Certificate prior to settlement
a Buyer who has been provided with a Form 36 prior to signing the Contract is not entitled to a Pool Compliance Certificate on or before settlement unless a Special Condition has been inserted in this regard
where a Contract settles without a Pool Compliance Certificate it becomes the Buyer’s responsibility to obtain one within 90 days of settlement.
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Article written by Aspen Roggeveen of Salerno Law.