An Article From Our Solicitor, Susanne Namrawi, Located At Our Narellan Office.
Recently I have had two cases where our clients’ purchased properties with a pool. One property was purchased at Auction (no cooling off period) and the other through an Agent with a cooling off period. Both properties had swimming pools. Both Contracts had a Certificate of Non-Compliance for the pool attached.
The law regulating Contracts for Sale and Purchase of Land in New South Wales provides that vendor must sell a property containing a swimming pool with either a Compliance certificate or a Non-compliance certificate attached to the Contract. There is an exception for newly built pools with an Occupation Certificate (within a certain time frame).
If a property is purchased with a Non-compliance certificate, the Purchaser is required to make the Pool compliant within 90 days following settlement. This is advised to our client as soon as we receive the Contract. In most cases Vendors do not agree to make the pool compliant before settlement as the agreed sale price supposedly has taken into consideration the cost to the Purchaser to make the pool compliant making it the Purchaser’s responsibility to make the pool compliant following settlement.
However, what happens when a Non-compliant pool becomes the subject of an Order issued by the local Council to complete works required to make the pool compliant? This is what became apparent in these two cases. As part of the Vendor’s replies to our enquiries about the property and our search with the Council seeking a list of outstanding orders affecting the property (something we do for every Purchaser) it became apparent that the Vendors had received a notice from the local council to do works to make the pool compliant which needed to be complied with by a date before settlement. If the Order was not complied with then there would be fines and penalties imposed. This Order was issued to the Vendor before the Contract was exchanged.
As a result of this disclosure (though late in the piece) we were successful in reversing the Vendor’s initial refusal to make the pool complaint before settlement. This was due to the fact we argued that Council’s Order was required to be disclosed in the Contract and as a result of the non-disclosure the Purchaser did not have the ability to consider the risks associated with purchasing a property subject of a Council Order which would have resulted in fines and penalties to the Purchaser for failing to comply with an Order issued on the property before the Purchaser was the owner. This is a breach of the Vendor’s legislative warranties.
Had we not made the correct enquiries, we would have never known until after our purchasing client became the owner of the property.
It is essential to make all necessary and available enquiries on a property when you are purchasing and a big part of our conveyancing disbursements fees is due to the extensive enquiries we make with the local Council, Sydney Water, RailCorp, Dept of Education (to name a few) to ensure there are no adverse notices or interest in the land that the Purchaser could not have known had we not made those enquiries.
A good result for these clients who were prepared to buy a property with a non-complaint pool and pay to have it made compliant but unaware of the outstanding Council Order which would have become their responsibility to comply with and their responsibility to pay the fines and penalties associated with the Vendor NOT complying with the Order on time.
This article was published on 25/05/23 and the information is valid only to the date of publishing. This article should be considered merely general and non-specific on the subject matter and is not and should not be considered or relied on as legal, advice. Meehans Solicitors is not responsible in the event this information is relied upon by the reader in the absence of specific legal advice.
