[Note: Most of the below information is an extract from the Royal Life Saving – “Be Pool Safe” website which can be found by clicking here)
Summer is upon us. Before we know it, we will start getting hit with 30 or 40 degree days and for many, the only option will be a pool! That means that now is the time to remind ourselves of the swimming pool obligations that Landlords and Property Managers have in NSW.
But first things first…. Did you know that children under five, remain the age group in the highest risk category for a drowning across Australia? Over the past 25 years, close to 1000 children under the age of five have died from drowning! ONE THOUSAND CHILDREN! Rental property pools are contributing to these statistics and as a landlord, the last thing you want on your conscience is to know that a child lost their live in your property! Just tragic to say the least!
The figures are just horrifying, and whist during the past 25 years there has been a decline of approximately 70% in drownings, we all must remain vigilant and be clear of the obligations bestowed upon us by the Law. This decline, which was only made possible because of stricter rules, equates to hundreds of lives saved!
It is estimated that close to 600 children’s lives, were saved between 1998 and 2019, as a result of the strengthening of relevant pool legislations around the country.
Current Legislation and Inclusions/Exclusions
The current swimming pool and spa laws for all NSW properties (including rental properties), came into force on the 29th of April, 2015. Since that day, all rental properties with a swimming pool or spa, must have a valid swimming pool occupation certificate of compliance before they can be rented out. It is a condition of signing a Tenancy Agreement, that if a property has a swimming pool, the certificate of compliance has been acquired and a copy is given to the tenant to keep. In my view, Property Managers should not even attempt to advertise a property or even show prospective tenants (with or without accompanying children) through a property with a pool, unless they have made sure to be in possession of a certificate first!
Pool compliance certificates – which can only be granted upon inspection and only if the pool’s fencing and surrounding areas meet regulation, are valid for 3 years. The law says that use of the pool is ONLY authorised when the occupants of a NSW property – the tenants and their guests when it comes to a rental property – are in possession of a current certificate. Assessment of pools for meeting regulation, is quite complex and will depend on when the pool was built, the height and design of the pool fence, as well as what is in the surrounding areas.
Tenants MUST be provided by Law with a less than 3 years old certificate of compliance upon signing the residential tenancy agreement.
So which pools come under consideration? According to legislation, ALL in ground, above-ground, indoor, portable and every type of pool and spa, that is capable of being filled to a depth of 300mm or more, come under consideration. Bathroom spas, that are used as baths and emptied after use are NOT, as is the case for any property that is part of a strata or community scheme of more than TWO lots.
The latter is because responsibilities for pools and spas in Strata and Community Title Schemes rests jointly with all unit owners. It is therefore the owners corporation’s (or ‘body corporate’) responsibility to ensure that there is a valid certificate of compliance or occupation certificate for all such pools. The same applies in community title schemes, where responsibility rests with the community association.
The above mean that, if you are a landlord owning a standalone rental property with a swimming pool or spa, you are NOW under the consideration of the NSW Swimming Pools Act AND you should be aware of your obligation under the Law.
Whilst properties in strata and community schemes are not included, any property with 2 units or less of occupancy with a structure that is capable of being filled to a depth of 300mm or more of water, comes under consideration.
Obtaining a certificate and Property Manager Requirements
Certificates of compliance get issued by the local councils or accredited certifiers under the Building Professional Act, after a visual inspection of the pool and surrounding area. If the pool meets all the safety requirements a certificate will be issued. If the requirements are NOT met, then rectification work will be necessary.
To check if your property (with a swimming pool) has a certificate of compliance already, you can go to the NSW Swimming Pool Register and search for your property. If you have a rental property and you can’t find the address in the register, our recommendation is to ring your Property Manager IMMEDIATELY. Property Managers would need to contact their local council immediately, as either the pool hasn’t not been registered OR no certificate was ever issued!
Landlords can check if their rental property has a valid Pool Certificate of Compliance by going to www.swimmingpoolregister.nsw.gov.au NOW!
Final Thoughts
Local councils charge $150 for an initial pool safety inspection, and $100 if a second inspection is required (accredited certifiers set their own schedule of fees). This is in addition to any rectification costs. These costs are only required once every 3 years and are tax deductible. When one considers the magnitude of risks associated with pools, the costs are therefore negligible!
If you are a Landlord with a property in NSW that has a pool, it is in your best interest to be aware of your obligations and to sure your Property Manager is doing what they are meant to – including always having a current certificate AND remembering to renew it every 3 years. Don’t assume your Property Manager is diligent as, sadly, not all always are!
In the eyes of the law, Landlords cannot absolve themselves by passing their responsibilities to their Property Manager in the event of an accident. Should a disaster happen whereby a tenant or their guest loses their life, not knowing, would not be a valid excuse in front of our courts. It is also quite likely that public liability contained in landlord insurances, becomes void if the accident is assessed to be the result of “negligence” which may be the case if the pool had not been inspected and tenants used it without a current certificate.
Your Landlord Insurance Public Liability may not cover you in the event of a drowning in your rental property’s swimming pool, IF YOU DO NOT HAVE A VALID CERTIFICATE OF COMPLIANCE!
As Landlords and Property Managers, ensuring the safety and well being of our tenants (especially children), is not only our obligation, it also makes good business sense by reducing the personal and financial risks. You don’t want your tenants to become a statistic, neither do you want to have it on your conscience.
Can you really afford to just leave it to chance? I wouldn’t. If your rental property has a pool, make sure to speak to your Property Manager today and ask to see the Certificate of Compliance.
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