Late 2010 the Queensland Government enacted tougher pool fencing laws. In effect, a property owner could no longer lease out a property with a "non-shared pool" without a Form 23, pool compliance certificate. To my simple mind that means it is illegal - against the law, taboo, verboten - to do so. Ergo, one cannot enter into a contract which will break the law. Like I said, my mind is simple.
In January 2011 Cyclone Yasi hit Queensland with its full force, and in the hectic clean-up period the government, in its' wisdom, decided to allow pool owners until 8 July to comply with the new laws. An interim Form 36 was produced, which was for owners/agents to use to advise a new tenant that the pool did not comply with the law. However, this form could not be used after 8 July, at which time the law was effective - you could not [legally] let a property with a non-shared pool without a Form 23.
With me so far? Not too difficult to follow?
So, in September (which, by my calendar, is actually after July) hubby and I, blissfully unaware of this state of affairs, sign a lease for a property with a non-compliant pool fence. We know this because the agent gives us a Form 36 to tell us, and advises us that the fencing is "in the process" of being repaired but is okay in the interim. What we don't know (until later, have patience!) is that the Form 36 is no longer valid and the agent should not have leased the property at all.
Fast forward 3 months - no need here to go into all the problems we had in the interim period - and they were legion! Anyway, we arrive home from somewhere to find - completely without our knowledge - temporary pool fencing erected around the pool, in some places blocking access to the garden behind the pool and in others blocking our walkway around the pool itself so we are unable to safely leaf skim all the way around. Brilliant! By way of explanation we find a form in the mail box from the local council advising that a pool inspection has been undertaken, the temporary fencing is noted, the existing fencing is in a very sad state and the owner has 3 months to remedy the situation. Erm... excuse me, 3 months? Does that mean we have to live with the temporary fence intrusion for 3 months?
I pull out the Form 36 we were given, and it is at this time that I find out it was not valid when it was issued to us. I contact the inspector who did the inspection, to find out that their inspection was initiated by an anonymous tip that the pool was non-compliant. I also find out that the council was unaware that the property was tenanted, they thought it was still owner-occupied since all their mail is still sent there and has never been returned.
We believe that the contract is invalid because:
- under the new pool fencing laws it is illegal to lease out a property with a non-shared pool without a current Form 23 compliance certificate
- you can't enter into a contract that will break the law
Under the circumstances, when faced with the dilemma of us getting public and legal, the agent and owner agree that we can break the lease and leave without penalty, but don't agree that the contract is invalid. Nor does the RTA.
We have now relocated, at a huge cost to us both emotionally and financially. We have yet to decide whether or not to pursue compensation. We believe we certainly have that right - the situation was not of our making but we were the ones who suffered as a consequence.
I was advised by the council that there is a pool register check publicly available online. This is a tool which prospective tenants should be advised about. As a matter of interest, I looked up properties with pools for rent in the vicinity, and checked them against the pool register. I was appalled to find that not only were 50% non-compliant, some weren't even registered! The stats for total compliance are pitiful.
Property managers can't simply say they "didn't know" and get away with it. It is your professional duty of care to know about laws that relate to properties you manage. Your tenant has a right to rely on your professionalism.
Owners can't just ignore the law and expect no punishment. As it stands at the moment, this section of the law has absolutely no teeth because an owner can lease out a non-compliant property and the only penalty is that, on inspection, he will be given 3 months to comply. Big deal! Where are the fines for breaching the law? Where is the compensation for tenants who are disadvantaged for that 3 months? Perhaps if landlords had to provide alternative accommodation for their tenants during the period of construction, they might think twice about pushing the boundaries in the first place?
The law is there for a reason - to stop children from drowning in pools with non-compliant fencing. As it stands, this law has absolutely no teeth because it can be over-ridden by the Residential Tenancy Act and council goodwill - and even if the council fines the owner, non of that goes to the tenant for their upheaval and frustration. Will it take a child drowning in a non-compliant non-shared pool on a property leased illegally, before someone understands the problem?
Stop the bullshit, people. Enforce this law. Monitor pool owners. Penalise owners and agents who flout the law. Hit these guys where it hurts, in the pocket, and they will comply quick smart.
Research to-let ads for compliance. That's not hard. Hey, contract me and I'll do it for you!
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