Sisters In Law: Landlord’s ‘deadly’ $22k pool mistake

When Isobel moved into her new rental, she noticed something was amiss – but it wasn’t until she got pregnant she realised it was a death trap.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to swimming pool fences.

QUESTION: My new rental has an unfenced swimming pool. At first I wasn’t too bothered but I recently found out I was pregnant and now I’m really worried our family home is a death trap. I raised the issue of the fence with the agent, who said that because we didn’t complain before we signed the lease, there’s nothing we can do. He says we legally agreed to take on the property in its current state and if we want a fence, we have to pay for it. It’s going to cost thousands! This place is ideal in every other way and I don’t want to move if at all possible. What are my rights when it comes to unfenced pools and tenancy agreements? – Isobel, QLD

ANSWER: Isobel, this is a real concern and you’re right to be worried when hundreds of lives are tragically cut short each year due to drowning.

On average, 10 children under the age of five drown in Queensland each year with the majority doing so in backyard swimming pools because of inadequate fencing or a lack of it completely.

There are laws in each state that specify minimum safety requirements with pool fences. Sometimes the requirements vary depending on when the pool was constructed.

These laws place obligations on both you and your landlord to make sure the pool safety regulations are being met.

In Queensland, the law requires all pool owners (your landlord) to build and maintain a compliant fence.

Before leasing the home, your landlord should have obtained a pool safety certificate issued by a licensed pool safety inspector. A valid certificate should have been included with the tenancy agreement.

If a certificate hasn’t been obtained then it could be a breach of the landlord’s duty to comply with all health and safety laws.

Unfenced pools kill children across Australia every year. Picture: iStock

The landlord must also register the pool, and you can find out if they have by doing a property search with Queensland Building and Construction Commission.

The landlord can be fined if their pool isn’t registered.

As a tenant, it is your responsibility to ensure there are no climbable objects and the pool gate is kept shut, provided there is a fence and gate. This is the case even if there are no children at the property.

The landlord is otherwise responsible to install a fence and to be compliant:

• Fences must be a minimum of 1200mm from the ground with no more than a 100mm gap between the ground and the top of the fence.

• Gates must open outward to the pool area, must be self-closing and self-latching and cannot be propped open.

• Latches must be at least 1500mm high from the ground level and 1400mm from the top part of the lower horizontal railings. If not, the latch has to be inside and at least 150mm below the top of the gate.

• Gate hinges thicker than 10mm must be at least 900mm apart or the lower hinge must have a non-climbable safety cap fitted.

• Objects that can be climbed on to get over the fence, such as furniture, plants and trees, must be moved well away from both sides of the barrier to ensure there is a “non-climbable zone”.

• There can be no direct access through a door from the house, or another building, into the pool area.

• Any windows opening onto the pool area must not open more than 100mm, otherwise they must have security screens.

• A compliant CPR sign must be displayed so it is easily visible to anyone near the pool.

Local governments have the power to investigate compliance with pool safety standards and can issue fines to owners.

The fines are a lot more than the cost of a fence at about $22,000 for an individual or $110,000 for a corporation.

If your landlord won’t erect a fence and you don’t get anywhere with them or the agent, then you should:

• Put the request in writing, you could even provide quotes;

• Contact your local government to report the lack of a fence;

• Issue a Notice to Remedy Breach with the agent/owner;

• Request dispute resolution assistance from the Residential Tenancies Authority;

• Give a Notice of Intention to Leave or apply to the Queensland Civil and Administrative Tribunal to end the tenancy agreement if the breach isn’t resolved. We’ve previously shared information about this process here.

We strongly recommend you take action quickly to protect your loved ones.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

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