A uniquely designed U shape house with a small swimming pool as part of the courtyard centre piece with floor to ceiling glass bi-fold doors on all three sides of the house opening onto the courtyard. As the marketing material quoted “perfect alfresco entertaining, generous layout merges superb ultra-private outdoor spaces”.
We were representing a buyer who was interested in this property which was scheduled for Auction. Following a review of the Contract and marketing material we advised our client that the Swimming Pool was non-compliant with the current Swimming Pool Act and Regulations. Our client accepted our advice and informed us that due to the design of the house it was obvious why a swimming pool fence had not been installed.
During the marketing campaign a prospective buyer (who was not our client) made direct enquiries with Council relating to the Swimming Pool requirements for this property. As a result of this enquiry Council were then “on notice” of the swimming pool non-compliance and were obligated to take action.
What happened next?
Council undertook a site inspection of the property and required the Vendor to rectify the swimming pool non-compliance within 7 days.
Options available to the Vendor:
1. Arrange for installation of a pool fence immediately (to fence the pool may detract from the aesthetic appeal of the property); or
2. Drain the pool of all water and install a temporary barrier (so that the marketing of the property could continue); or
3. Fill in the swimming pool (a development consent from Council is needed to do this).
This pre purchase enquiry (by a party who had not brought the property or at this stage had no legal interest in the property) triggered the Council to issue a Work Order on the Vendor prior to sale of the property.
Obligations of the Vendor:
Once a Work Order is served by Council on the Vendor or the Vendor is aware of any matter which would prevent a Building Certificate from being issued by Council such matters must then be disclosed to any prospective buyers.
Failure by the Vendor to disclose such matters prior to exchanging Contracts could expose the Vendor to a claim for compensation by the buyer.