If you're selling a Queensland property with a pool or spa, pool safety compliance is not optional. The seller must provide a valid Form 23 pool safety certificate dated within two years of settlement, or make a Form 36 statutory declaration if no certificate exists.
This guide explains your obligations as a seller, when to arrange inspection, what happens if the pool fails, who pays for rectification, and common mistakes that delay settlement.
What pool safety certificates are required for sale?
Queensland law requires the seller to provide one of the following at or before settlement:
Option 1: Form 23 pool safety certificate (compliant barrier)
A Form 23 certificate issued by a QBCC licensed pool safety inspector, dated within two years before the settlement date. The certificate confirms the pool or spa barrier meets the required safety standard at the time of inspection.
This is the standard and expected outcome — most pools that are maintained and have had gates/latches serviced will pass inspection and receive Form 23.
Option 2: Form 36 statutory declaration (no certificate available)
If no valid Form 23 certificate exists and the seller cannot or will not obtain one before settlement, the seller must give the buyer a Form 36 statutory declaration. Form 36 states:
- That the seller does not have a current pool safety certificate for the property, and
- Why no certificate has been provided (e.g., "the pool barrier does not comply with the standard and rectification has not been completed")
Form 36 is not a substitute for Form 23 — it's a legal admission that the pool is non-compliant or unverified. The buyer then takes on the risk and cost of obtaining compliance after settlement. Most buyers will not proceed on these terms unless the contract price reflects the cost and risk of rectification, or unless they're purchasing the property for redevelopment.
When should you arrange the pool safety inspection?
The optimal time to arrange inspection is immediately after the contract goes unconditional, or during the finance-and-building-inspection period if you're confident the buyer will proceed.
Here's why timing matters:
Too early (before listing): Certificates are valid for two years, so arranging inspection months before selling means the certificate expires sooner. However, if your pool is older or you're uncertain about compliance, a pre-listing inspection lets you identify and fix issues before buyers start attending, avoiding settlement delays.
After contract, during due diligence: This is the most common approach. Once you have a buyer and the contract is signed, book the inspection immediately. If the barrier is compliant, Form 23 is issued within days. If non-compliances are found, you have the due diligence and finance period (typically 14–21 days) to complete rectification and obtain Form 23 before the buyer's final inspection.
Too late (weeks before settlement): If you wait until 1–2 weeks before settlement, any non-compliances create pressure. Rectification contractors may not be available on short notice, and re-inspection must be scheduled after repairs. Delayed certificates are a common cause of settlement extensions or buyer penalty notices.
Conveyancers and solicitors generally recommend booking the inspection within the first week after the contract goes unconditional, even if settlement is months away. This gives maximum time to resolve issues.
What if the pool fails inspection and you receive Form 26?
If the barrier does not comply, the inspector issues Form 26 (pool safety non-compliance certificate) listing each issue that must be fixed. Common non-compliances include worn gate latches, climbable objects near the fence, gaps under gates, or barrier height issues.
You then have three options:
1. Complete rectification and obtain Form 23 (standard approach)
Engage a licensed contractor or the inspector (if they offer rectification services) to fix all issues, then arrange re-inspection. Once the barrier complies, the inspector issues Form 23 and you proceed to settlement as planned.
This is the expected approach. Buyers understand that older pools may require minor rectification, and short settlement delays (5–10 days) to complete work and re-inspection are generally accepted if communicated promptly.
2. Negotiate with the buyer to settle with Form 26 outstanding
Some buyers — particularly investors, builders, or buyers intending to renovate or remove the pool — will accept settlement without Form 23 if the contract price is reduced to reflect rectification costs.
In this scenario:
- The seller provides Form 36 declaring no certificate is available
- The contract is varied to remove the seller's obligation to provide Form 23
- The buyer accepts responsibility for rectification after settlement
- The price is usually reduced by $1,000–$5,000 (or the quoted rectification cost plus a margin) to compensate
This is uncommon in standard residential sales because most owner-occupier buyers (especially those with young children) will not proceed without a compliant pool, and most lenders require Form 23 for finance approval.
3. Dispute the Form 26 (rare, generally unsuccessful)
If you genuinely believe the inspector's assessment is incorrect, you can engage a second licensed pool safety inspector for an independent opinion. If the second inspector issues Form 23, that supersedes the Form 26 and you can proceed to settlement.
However, second opinions rarely overturn the original assessment — Queensland's pool safety standards are objective, and inspectors apply them consistently. Disputing the certificate usually adds time and cost without changing the outcome.
Who pays for rectification — seller or buyer?
The seller pays for rectification work required to obtain Form 23, unless the contract specifically allocates responsibility differently.
Standard REIQ contracts require the seller to provide a valid Form 23 certificate at settlement. If the pool barrier is non-compliant at the time of sale, the cost of bringing it into compliance is the seller's responsibility, just as the seller would repair a leaking roof or fix electrical defects identified during building inspection.
Buyers occasionally offer to complete rectification themselves after settlement in exchange for a contract price reduction. This is a negotiated variation, not a standard term — do not assume the buyer will accept this arrangement. Most buyers with young families want a compliant pool at settlement.
What about rectification costs discovered late in the contract?
If Form 26 is issued two weeks before settlement and rectification costs are higher than expected (e.g., $3,000 to replace non-compliant gates), the seller cannot unilaterally refuse to proceed or demand the buyer accept Form 36. The seller is contractually obligated to provide Form 23.
Your options in this situation:
- Pay for rectification and proceed to settlement (most common)
- Negotiate a settlement extension if contractors cannot complete work in time
- Seek a price adjustment — the buyer may agree to a minor reduction in exchange for accepting Form 26 and completing rectification themselves, but they're under no obligation to agree
- Terminate the contract — if rectification is genuinely impossible (e.g., the pool would need to be demolished and rebuilt), this may be grounds for termination under the contract's special conditions. However, this is rare and usually results in the buyer claiming costs or damages.
Plan for rectification costs in your selling budget. If your pool is 15+ years old or gates/latches haven't been maintained, budget $500–$2,000 for likely compliance work.
What is Form 36 and when is it used?
Form 36 is a "Pool safety statutory declaration for a shared pool" — despite the name, it's also used for non-shared (residential) pools where no Form 23 certificate exists.
The form is a statutory declaration (formal legal statement) signed by the seller, stating:
- That the pool exists at the property
- That no current pool safety certificate has been provided
- The reason why (typically: "the pool barrier does not comply with the safety standard" or "the pool barrier has not been inspected")
Form 36 does not exempt the seller from providing Form 23 — it's a disclosure mechanism. The buyer receives Form 36 instead of Form 23, and proceeds at their own risk. The obligation to obtain a compliant pool barrier then falls to the buyer after settlement.
Form 36 is appropriate when:
- The pool is derelict or structurally unsafe, and rectification is not economically viable
- The property is being sold for demolition or redevelopment, and the buyer intends to remove the pool
- The seller and buyer have negotiated a reduced price in exchange for the buyer accepting responsibility for compliance
Form 36 should never be used as a shortcut to avoid rectification costs on a standard owner-occupier sale — most buyers will not accept it, and those who do will demand significant price reductions.
Common mistakes sellers make
1. Assuming an old certificate is still valid
Pool safety certificates are valid for two years from the date of issue. A certificate from 2023 is not valid for a 2026 settlement. Check the certificate date — if it's more than two years old, you need a new inspection.
2. Waiting until the week before settlement
If non-compliances are found, rectification and re-inspection take time. Contractors may not be available immediately, and urgent service attracts premium fees. Book the inspection as soon as the contract is unconditional.
3. Not budgeting for rectification
Sellers often assume their pool will pass inspection without considering that 15-year-old gate latches and corroded hinges are common failure points. Budget $500–$2,000 for potential rectification work, and more if the pool is very old or poorly maintained.
4. Assuming the buyer will accept Form 36 and fix it themselves
Unless the buyer is an investor or builder, they almost certainly want a compliant pool at settlement. Offering Form 36 without pre-negotiating this with the buyer will likely cause the buyer to delay settlement or exercise contract rights for non-compliance.
5. Ignoring Form 26 or hoping the buyer won't notice
Form 26 is lodged with the QBCC and recorded against the property. A buyer's conveyancer will search the QBCC records and find it. You cannot "skip" Form 26 by simply not mentioning it — the certificate is a public record.
What happens if you can't provide Form 23 by settlement?
If the contract requires Form 23 and you cannot provide it by the scheduled settlement date, the buyer can:
- Extend settlement (usually by mutual agreement, often with a penalty interest clause if the delay is the seller's fault)
- Issue a notice to complete requiring settlement within 14 days, failing which the contract may be terminated
- Terminate the contract and potentially claim costs or damages if the seller is in breach
Which option the buyer chooses depends on whether they want to proceed with the purchase. If they do, they'll usually agree to a short extension (7–14 days) to allow rectification and re-inspection to complete. If they're having second thoughts, they may use the missing certificate as grounds to exit the contract.
To avoid this, always communicate with the buyer (via your solicitor or agent) as soon as you know there's a delay. If Form 26 is issued and rectification will take two weeks, inform the buyer immediately and propose a settlement extension. Most buyers will agree if you're transparent and making genuine progress.
FAQ
Do I need Form 23 if the pool is empty or the filter is broken? Yes. The certificate is about the barrier (fence and gates), not whether the pool is operational. An empty pool, a derelict pool, or a pool full of green water all require a compliant barrier and Form 23 if the property is being sold.
Can I remove the pool to avoid the certificate requirement? Yes. If the pool is permanently removed (filled in and capped, or excavated and removed), no pool safety certificate is required. However, pool removal requires council permits in most areas, and must be done properly to avoid subsidence or drainage issues. Removal is only cost-effective if the pool is beyond repair or if the buyer wants it removed anyway. You must notify the QBCC that the pool has been removed so the property's pool safety record is updated.
What if I've already arranged my own pool inspection and it's compliant? If you have a current Form 23 certificate (dated within two years), you simply provide that to the buyer at settlement. No additional inspection is needed. Some sellers arrange inspection before listing to ensure the pool is compliant and avoid any settlement delays.
Can the buyer arrange the inspection and deduct the cost from the purchase price? Not unless the contract specifically allows this. Standard contracts require the seller to provide the certificate, not the buyer. Some buyers in strong negotiating positions (e.g., buyers' markets, properties with known pool issues) may insist on a special condition allowing them to arrange and pay for inspection, then deduct the cost plus any rectification from the purchase price. This is uncommon and must be negotiated upfront — it's not implied.
What if the property has multiple pools or spas? Each pool and spa that requires a safety barrier must have a separate Form 23 certificate. If your property has a swimming pool and a separate spa, that's two inspections and two certificates. Most inspectors will inspect both during one visit and issue separate forms, but you'll typically pay for two certificate lodgements.