September 23, 2014
By Bob Incollingo
Wade through the “additional contract provisions” of the 2014 form contract of sale advanced by the Burlington Camden County Association of Realtors, and you’ll see a clause specifically devoted to the buyer’s inspection of swimming pools and spas.1 There is a good reason for this separate treatment, since pools and spas and associated accessories are “recreational facilities” under the definitions of the Home Inspection Professional Licensing Act2, and therefore outside the legal scope of a home inspection. The home inspection clause3 in the main body of the form contract does not apply to pools and spas.
Like the home inspection clause, the pool inspection clause (Clause 4) allows a buyer ten business days after the expiration of the attorney review period to have a swimming pool, spa, and filtration system inspected, and to receive the report. Although Clause 4 does not say who is qualified and who is not qualified to do the pool inspection, and there is no legal status for a pool inspector in our state, the related home inspection clause states that where a license or certification is not required by law for an inspector, the term “qualified inspector” will mean someone regularly engaged in the business of inspecting residential properties for a fee and who generally maintains a good reputation for skill and integrity in his area of expertise. Although pool inspection is not a part of home inspection, in my opinion a judge would use this contract definition to determine if a pool inspector were qualified.
Clause 4 allows the buyer another five business days to notify the seller of any deficiencies in the pool or spa, and to terminate the contract and recover the deposit unless the seller agrees in writing, within five business days of receiving the inspection results, to repair and/or replace the deficient items at the seller’s own cost and expense. Clause 4 does not define “deficiency.”
What could make a pool or spa “deficient” to the extent that a buyer might walk away without fear of suit for breach of contract? The home inspection clause provides little help, offering “sound,” “structurally sound,” “good operating condition,” “defect,” and “material defect” as alternative tests for particular construction systems. In the context of a home inspection, these alternative standards cause little trouble because detailed regulations are there for legal guidance in each case. In the context of a pool inspection, there is a lot less to go on, but if you dive in to the law on private swimming pools in New Jersey, here’s what you’ll come up with:
Appendix G to the International Residential Code, New Jersey Edition 2009 (a.k.a. IRC 2009)4 currently controls the design and construction of swimming pools, spas and hot tubs installed in or on the lot of a one- or two-family dwelling.5 Appendix G is the single best source of governmental authority6 establishing statewide standards for the design and construction of private swimming pools. At only three pages, the Appendix is deceptively short, calling to and incorporating a list of construction standards published by the American National Standards Institute, the American Society of Civil Engineers, ASTM International, the Association of Pool and Spa Professionals (f.k.a. National Spa and Pool Institute), and Underwriters Laboratories, Inc.7 The IRC 2009 and its appendices, as amended, are the law in this State since their adoption September 7, 20108 (with technical amendments) by the Department of Community Affairs.9 N.J.A.C. 5:23-3.21(a)1.10 For pools and spas built before the date of adoption, an earlier version of Appendix G or some other standard then in effect would have applied.11
The chief difficulty with setting a building subcode as a compliance standard is that the construction codes speak to construction, not maintenance or operation.12 Time moves on and the law keeps pace, but building structures don’t change. What was entirely legal and acceptable at the time of construction may have become unacceptable and/or illegal under current versions of the controlling subcode. In such an event, and this is by no means unique to the topic of swimming pools, a buyer may expect a fight from a seller when demanding that pre-existing structures be upgraded to meet modern standards.
Furthermore, a subcode standard will likely have nothing to do with esthetic considerations, and those concerns may be of the essence to a buyer’s willingness to go forward with a sale. For example, if inspection reveals unsightly stained surfaces, the standards incorporated into Appendix G might have nothing to say, concerned as they are with the performance of structures as and when built.
Another approach to figuring whether a feature of a swimming pool or spa may be “deficient” is to look to the local municipal swimming pool ordinance. Apart from residential pool standards incorporated into law by Appendix G at the State level, several local municipalities incorporate private industry standards directly into their swimming pool ordinances. One example is recent Ordinance No. 2014 – 17 amending Chapter 25, “Land Development Regulations” of the Code of the Borough of Elmer, Salem County, which states in relevant part, “6. All swimming pools shall be constructed to the design standards as set forth by the National Swimming Pool Institute.” Bordentown Township in Burlington County has a similar reference. in 1980, the National Swimming Pool Institute changed its name to “National Spa & Pool Institute,” as it is referred to in Appendix G, and in 2004 it became the Association of Pool & Spa Professionals (APSP), headquartered in Alexandria, Virginia.13 The 2015 edition of the International Swimming Pool and Spa Code published by the APSP is now available14 and may make its appearance in future revisions of Appendix G.
In some municipalities like Cherry Hill Township in Camden County and Lower Alloways Creek Township in Salem County,15 the municipal ordinances include a chapter on swimming pools which incorporates the “Swimming Pool Code of New Jersey (1970)”, subject to certain amendments. A town’s swimming pool code may go no further, limiting its applicability to public pools (like Lower Alloways Creek), or it may add provisions that apply to private pools (like Cherry Hill). The Cherry Hill ordinance provides that all swimming pools must be built to comply with the Uniform Construction Code, which in practice means Appendix G. The ordinance conditions the use of a swimming pool upon issuance of a Certificate of Use and Occupancy “pursuant to the applicable regulations of the Township,” and allows for revocation of the certificate for failure to properly operate the swimming pool, such revocation proceedings to proceed under the regulations of the Uniform Construction Code. Clarification would help here, since Appendix G sets construction standards for private swimming pools, while the Swimming Pool Code of New Jersey excludes consideration of private swimming pools altogether.16
I have formed the impression that ordinances entitled, “Swimming Pool Code” are not the best place to look most times for local standards. The real regulation of private swimming pools in a particular town is usually found in its zoning ordinance. So, to use Cherry Hill as our example again, the local zoning ordinance17 contains this definition:
Any structure, including in-ground, above-ground and on-ground swimming pools, hot tubs, whirlpools and spas, which are intended for swimming or recreational bathing that contains water over twenty-four (24″) inches in depth; and a surface area less than two hundred and fifty (250) square feet.18
Nothing in this definition appears to exclude private swimming pools and spas, so it looks like a buyer’s inspector should begin here. The zoning ordinance goes on to list the zones where a residential swimming pool (as defined) is a permitted structure, either without further restriction or “per §431.G.” Section 431.G. of the Cherry Hill zoning ordinance applies detailed requirements to private residential swimming pools and accessory cabanas, including fence height and gate requirements. In several subsections it even incorporates other standards by reference.19 This serves as a reminder that a buyer’s pool inspector should not only measure the pool in question against the text of the local zoning ordinance, but also against the standards incorporated into it.
How would I advise a buyer to proceed when buying a house with a swimming pool? First, I would beef up supplemental form contract Clause 4 to require compliance with the current version of Appendix G, its included standards, and all applicable local municipal ordinances, and further require operational and cosmetic (esthetic) perfection for all component parts unless specifically noted and excepted (i.e., waived) in a writing signed by the buyer. Then I would arm the pool inspector with all relevant laws and standards, and if available the manufacturer’s product literature, for use as a checklist to confirm that the pool would pass current requirements. Any shortcomings under these standards would be considered “deficiencies” within the meaning of the revised contract, and the course of repair or termination would continue as provided.
One final note: There is no legal basis and no particular need for the ten and five business day deadlines in Clause 4. A prudent buyer would want to negotiate extensions of each of these time periods.
1ADDITIONAL CONTRACT PROVISIONS
____4. INCLUSION OF SWIMMING POOL AND/OR SPA: It is understood between Buyer and Seller that the: in-ground swimming pool, above ground swimming pool, spa, and associated filtration system are included in the Contract for Sale. Any accessories to theabove that are to be included are as follows:
Buyer and Seller also agree: Buyer shall have ten (10) business days after the expiration of the attorney review period to inspect the above said system(s) and receive inspection results. If said inspection reveals any deficiencies, Buyer shall notify the Seller within five (5) business days. Buyer shall have the right to declare this Contract terminated and the deposit monies shall be returned to the Buyer, unless the Seller agrees, in writing, withinfive (5) business days of receiving the inspection results to repair and/or replace same, as may be required, at Sellers own cost and expense.
It is understood and agreed that the Seller makes no representation or warranty as to the condition of the above. The Buyer agrees to accept the above in an as is condition meaning the same condition as it is at the time of the signing of this Contract for Sale.
2N.J.S.A. 45:8-61 et seq.
4Also known and cited as the one- and two-family subcode. N.J.A.C. 5:23-3.21(a)1.ii.
5There is a “Swimming Pool Code of New Jersey (1970)” approved by the State Department of Health for adoption by reference by local boards of health in accordance with law, being a code:
- Regulating and controlling the location and construction, alteration and operation of swimming pools;
- Regulating and controlling the issuance of permits and licenses to locate and construct, alter or operate swimming pools; and
- Declaring and defining certain swimming pools as nuisances.
The “Swimming Pool Code of New Jersey (1970)” is an update of an earlier 1955 code by the same name. The Swimming Pool Code of New Jersey is almost impossible to find outside of an OPRA request to a municipality that has incorporated it by reference into local ordinances. Special thanks go out to Mr. Tim Smith, Acting Manager of the Public Health, Sanitation & Safety Program in the Consumer, Environmental and Occupational Health Service of the NJ Department of Health, who was kind enough to supply me with the 1955 version of the Code, and to undertake to pass along the 1970 version when or if it surfaced. I was subsequently able to obtain the 1970 version by Open Public Records Act request to Cherry Hill Township. The Swimming Pool Code of New Jersey removes itself from consideration as authority for private swimming pools because it excludes them from its own definition of swimming pools, and thus concerns itself with public swimming pools, and no others. See, Swimming Pool Code of the Township of Cherry Hill, Chapter 23 of the Township of Cherry Hill, being Chapter 23-1 (Ord. #72-17, § 2, 3-27-72); See also, the Swimming Pool Code of the municipality of Lower Alloways Creek in Salem County, being Chapter 184 adopted by the Board of Health of the Township of Lower Alloways Creek 3-17-78 as Ord. No. H-78-1.
6New Jersey law provides sanitary and safety regulations elsewhere for public recreational bathing places (N.J.A.C. 8:26, also known as the New Jersey State Bathing Code; N.J.S.A. 26:1A-7 & 26:4A-7), and Federal consumer product safety law also plays a role. For example, the “Virginia Graeme Baker Pool and Spa Safety Act (P&SS Act), 15 U.S. Code § 8001, et seq., eff. December 19, 2008, requires that all public pools and spas must have ANSI/ASME A112.19.8 performance standard, or the successor standard ANSI/APSP-16 2011 compliant drain covers installed and a second anti-entrapment system installed, when there is a single main drain other than an unblockable drain.
7See, Appendix G, International Residential Code 2009, New Jersey Edition; online at https://ecodes.biz/ecodes_support/free_resources/NewJersey/2009/09NJ_Residential/PDFs/Appendix%20G_Swimming%20Pools,%20Spas%20and%20Hot%20Tubs.pdf. Copies of this code may be obtained from the International Code Council at 4051 West Flossmoor Road, Country Club Hills, Illinois 60478-5795. N.J.A.C. 5:23-3.21(a)1.i.
8Before that, beginning February 20, 2007, Appendix G appeared in a different form as part of the IRC/2006, with technical amendments at N.J.A.C. 5:23-3.21.
9This information is based on Administrative Regulations adopted and published through the New Jersey Register, Vol. 46 No. 1, January 6, 2014, and should be current as of that date. WARNING: The Subcodes are revised on an ongoing basis, and this article could not possibly do more than point the reader where to begin to look to research applicable and current standards. This takes initiative, work, and very careful attention.
10The New Jersey Administrative Code (abbreviated her N.J.A.C.) is available from LexisNexis, the publisher licensed by the NJ Office of Administrative Law. A searchable online version of the Code is available at LexisNexis. The NJ Administrative Code may also be found in public libraries; contact your library directly for availability.
11Beginning February 20, 2007, Appendix G appeared in a different form as part of the IRC/2006, with technical amendments at N.J.A.C. 5:23-3.21. Before that date, it becomes a research project.
12The New Jersey Uniform Fire Code (N.J.A.C. 5:70-1 et seq.) is an exception.
13“Spa Wars” by Linda G. Green, Pool and Spa News, Posted on: April 26, 2013, https://www.poolspanews.com/history/spa-wars.aspx
15CHAPTER 184, SWIMMING POOL CODE … [HISTORY: Adopted by the Board of Health of the Township of Lower Alloways Creek 3-17- 78 as Ord. No. H-78-1. Amendments noted where applicable.]
16“Swimming pool … shall not include swimming or wading pools established or maintained upon any premises by any individual for his own or his family’s use or guests of his household.”
19For example, “7. All in-ground and above-ground swimming pools shall be so constructed, installed and maintained as to provide the necessary equipment for the chlorination and other disinfection and filtering of water to comply with approved bacteriological standards as may be promulgated by the Camden County Board of Health and the New Jersey Department of Health & Senior Services.”