Pool fence law problems

Press, 15 February 1989, Page 59

Pool fence law problems

The Auckland City Council has suggested that solicitors acting for the parties in the sale and purchase of properties which contain spa or swimming pools should keep in mind the statutory obligation imposed on an owner to provide adequate pool safety fencing. Under a front page heading “Purchaser may be liable for unfenced pool” a recent issue of the Auckland District Law Society newsletter Northern News quotes Mr J. A. Campbell, the council’s chief city environmental health officer, who suggests that an additional clause be

incorporated in sale and purchase agreements whereby the vendor warrants that any pool is fenced in accordance with the act or accepts responsibility for carrying out fencing requirements at his/her expense prior to settlement date or, alternatively, the purchaser accepts responsibility for fencing. The suggestion has been referred to the society’s Property and Business Law Committee and a decision is expected early this year. Any move to include yet another warranty is bound to upset some real estate practitioners —

and vendors — who may feel that the process of wrapping up a sale is becoming ludicrously legalised. On the other hand, that is the trend these days. The proposal contains some fishhooks, the biggest being the fact that no-one is likely to be able to draw up a warranty that covers the situation precisely because it is our understanding that no owner in the country has been issued with a certificate stating that on the day issued the pool fencing safety system complied with requirements. Vendors would be foolish to initial a warranty that guaranteed any-

thing less than a 100% assurance, and if the warranty in the agreement was crossed out; (voided), the would-be purchaser could perhaps back off, frustrate ing the hard-working real estates salesperson. Since the introduction of the act, real estate salespeople have been advised to draw the atterition of vendors to the pool safety fencing act and to avoid attempting to interpret provisions of the act. Instead they should refer vendors/prospective purchasers with inquiries to the territorial local body with responsibility for enforcing provisions of the act