Does Your Tenant’s Portable Pool Need to be Fenced?

If your property is fit for a portable pool, you might want to review special term 53 of the Real Estate Institute of Queensland (REIQ) tenancy agreement.

Special term 53 involves portable pool obligations and indicates the tenant’s responsibility for their portable pool on your property.

1. The tenant must –
   1. Obtain the lessor’s consent for a portable pool at the premises of a depth of 300mm or greater;
   2. Where the consent is to be provided by the lessor to the tenant for the use of a portable pool at the premises of a depth of 300mm or greater, provide the lessor and/or the agent with the details of the type and description of the proposed portable pool.
2. Where the consent is provided by the lessor to the tenant for the use of a portable pool at the premises of a depth of 300mm or greater, the tenant agrees to;
   1. Maintain and repair the portable pool at the tenant’s own expense;
   2. In accordance with the Building Act 1975 obtain, maintain and renew a Pool Safety Certificate for a regulated pool, which includes a requirement for compliant pool fence and, provide a copy of the Pool Safety Certificate to the lessor and/or agent;
   3. Where a compliant pool fence is required for a regulated pool, obtain the lessor’s consent regarding a proposed fence in accordance with clause 27 of standard terms;
   4. In circumstances where consent is provided to the tenant by the lessor in accordance with clause 27 of the standard terms, construct and maintain the fence as required by the Building Act 1975 at the tenant’s own expense.
3. In according with clause 53(1) and 53(2), where consent is provided by the lessor to the tenant for a portable pool of a depth of 300mm or greater and/or prescribed by the Building Act 1975, the tenant hereby agrees to indemnify and hold harmless the lessor and agent for any loss, claim, suit or demand, brought, caused or contributed to, directly or indirectly, by the portable pool.

Some portable pools can be exempt from fencing regulations. According to Schedule 2 of the Building Act, a portable wading pool means a pool that a) is capable of being filled with water to a depth of no more than 300mm and, b)  has a volume of no more than 2,000 litres, and c) has no filtration system. The tenant’s pool must meet all three of the criteria for it to be considered a portal wading pool.

A common misunderstanding is that a pool must both be deeper than 300mm and able to hold more than 2,000 litres to require fencing. But, for example, a pool that is 301 mm deep but can hold less than 2,000 litres will still need to be fenced. Likewise, a pool shallower than 300mm and can hold less than 2,000 litres but has a filter will need to be fenced.

As Landlord/Property Manager, you may not be able to offer legal advice to your tenant, but you can remind them of the state legislation when they have any questions or concerns about their portable pool. A clear of understanding of the legislation on both sides could prevent any future issues.