Pool safety and the rental property: Real estate bulletin issue 163 (November 2017)
24 November 2017
As summer approaches it’s time to consider if the pools and spas in rental properties conform to safety requirements. Pools and spas must be appropriately fenced according to the building laws enforced by local government and the residential tenancy laws.
The law requires that private swimming pools are secured by isolation fencing and have correct locking mechanisms on gates.
Under the Building Regulations, a private swimming pool is one associated with a dwelling and which has the capacity to contain water that is more than 300 mm deep. This can include spa-pools such as jacuzzis and outdoor hot tubs.
While owners and occupiers are both responsible for ensuring that any fence or barrier restricting access to a private swimming pool is maintained and operating effectively, it is ultimately the owner’s responsibility to ensure barriers are adequate for any pools/spas provided with rental premises. If an owner does not comply with the legal requirements, not only are the lives of young children put at risk, but the owner could face substantial fines.
The Building Commission has developed a comprehensive guide to pool and spa fencing called Rules for pools and spas. This is a general guide only and it is the local government authority which can provide advice as to whether a specific swimming pool or spa barrier complies with the requirements.
A concessional treatment is available for those properties with private swimming pools that were constructed, installed or approved prior to 5 November 2001. The concessional treatment allows a wall that includes a door to be used as part of the barrier providing the door complies with Australian Standard 1926.1 - 1993 incorporating Amendment no.1.
This concessional treatment however provides an additional risk for things to go wrong in rental properties. All access points to the pool area must be maintained in perfect working order.
In 2013, a toddler died in Kalgoorlie because the sliding door to the backyard was not compliant, and the child was able to open the door and gain access to the pool. The security sliding door which had formed part of the pool safety barrier had been removed leaving only a non compliant glass sliding door.
From the 2017 Western Australian Ombudsman Investigation into ways to prevent or reduce deaths of children by drowning, over a six-year period, 34 children died by accidental drowning. Additionally, 258 children were admitted to hospital and 2,310 children attended an emergency department in respect of non-fatal drowning incidents. Private swimming pools were the most common location of fatal and non-fatal drowning incidents. Most fatal drowning incidents in private swimming pools occur where there is no barrier or a faulty barrier between the residence and the swimming pool area. It is clear that there is a strong need to be vigilant to the dangers of private pools in Western Australia.
Guidelines for property managers
Property Managers can help prevent accidental drownings at rental properties by following these guidelines:
- When the agency gains the listing of a property with a pool ask the owner if the barriers comply with current safety regulations. Obtain a copy of the most recent pool inspection report from the owner.
- Explain the importance for the owner to respond appropriately to any information they receive during the local council’s regular check that the pool barriers do not comply with the Building Act 2011 and the Building Regulations 2012.
- If an owner is installing, constructing or altering private swimming pool barriers, including windows, doors and gates that provide access to the pool area remind them they must first obtain a building permit from the local council.
- At the start of the tenancy provide the tenant/s with either a Form 1AC Information for Tenants or Form 1AD Information for Tenant with Non-written Tenancy Agreement. Discuss the information regarding pools with the tenants, ensuring they understand they have a responsibility to report any pool issues urgently.
- Include advice in the lease agreement that the tenant must obtain permission to erect any pool over 300mm in depth and that if approved they would be required to provide regulation fencing. Draw this to the tenant's attention.
- Respond to maintenance requests promptly. Repairs to a pool barrier are urgent and tenants have the right to authorise urgent repairs if unable to contact you within 48 hours of the need for urgent repairs arising, or, if the repairs were not organised as soon as practicable after notification. Ensure the property owner is made aware of this. Further information is available on the webpage Urgent repairs in a rental home.
- Check the pool fencing, latches, gate and posts when conducting property inspections. Remind the owner to carry out regular maintenance of the pool safety barriers.
- During property inspections check for any objects that can be climbed on, such as garden furniture, are being kept away from the pool and spa fences, gates and latches.
Guidelines for sales representatives
If a property with a swimming pool is listed for sale, it may be prudent to make enquiries with the owner about whether the barriers comply with current safety regulations, particularly if there is to be a home open at the property.
If you are concerned that the requirements are not being met, this information should be brought to the attention of the property owners and occupiers, especially if you identify an urgent repair pertaining to swimming pool safety.
Pool fencing laws also apply to portable pools and spas 300mm deep or more.
Tenants may purchase a portable above-ground or wading pool, or outside spa, even though it may be a term of the tenancy agreement that the tenant does not install a swimming pool or spa without the consent of the owner.
If you become aware of a portable pool during an inspection, respond accordingly. If the pool can hold water deeper than 30 cms request it is emptied immediately. Then immediately seek the direction of the lessor as to how they would like to handle the risk.
If the pool holds less than 30 cms of water discuss the dangers with the tenant. Tenants should completely empty portable pools after use and store them away securely. If pools are left out they can fill up with rain or sprinkler water which could prove to be a fatal mistake.