When signing the notarial deed of sale of a house or flat, you can often find in it provisions on the transfer of the so-called energy performance certificate by the seller. Sometimes the provision of the contract informs only about the failure to provide this document by the seller. Not all buyers are aware of the rights they have if the seller fails to deliver the energy performance certificate.
The above issues are regulated in detail by the Act of 29 August 2014 on the energy performance of buildings (hereinafter as “the Act”).
According to the Act, the energy performance should be understood as a set of data and energy indicators for a building or part of a building, determining the total energy demand necessary for its use as intended. This information is a source of knowledge for the buyer about the potential costs of heating the building.
The owner or manager of a building or parts of a building is obliged to ensure the drawing up of an energy performance certificate for the building or parts of a building sold under a sales contract. The same obligations apply to the owner of a rented building or parts thereof. The certificate should be handed over to the buyer or tenant respectively:
– upon conclusion of the sales contract, or
– upon conclusion of the tenancy contract.
The certificate is drawn up in accordance with the methodology set out in the Regulation of the Minister of Infrastructure and Development based on the standard way of using a building or part of a building (calculation method) or with the method based on the actually consumed amount of energy (consumption method). The second method is available only for premises from the secondary market, in which the consumption of utilities is settled on the basis of meters and there are documents confirming the actual consumption of heat or natural gas from the last 3 years prior to the energy performance certificate.
The Act sets out the minimum requirements for the content of an energy performance certificate. It should include:
1) identification data of the building or part of the building;
2) energy performance of the building or part of the building;
3) recommendations specifying the scope and type of construction and installation works that will improve the energy performance of the building or parts of the building.
In the event that the seller or the landlord fails to comply with the obligation to provide the buyer or the tenant with the certificate, the buyer or the tenant may, within 14 days of the conclusion of the agreement on transfer of ownership or tenancy agreement, request in writing the transferor or the landlord to comply with this obligation within 2 months of service of the request. If despite the request the certificate is not handed over within this period, the buyer or tenant may have an energy performance certificate drawn up at the cost of the seller or landlord. The buyer or tenant may not waive this right. Possible inclusion of such statements in the sale contract or the tenancy contract will be ineffective.
The law also specifies the minimum qualifications of persons authorised to draw up certificates, and expresses a ban on the drawing up of certificates by property owners or managers – it is therefore unacceptable to draw up a certificate for oneself.
Finally, it should be pointed out that work is currently underway on a draft amendment to the Act on amending the Act on the energy performance of buildings and other acts. The legislator justifies the need for change, inter alia, by the fact that there are currently no effective mechanisms to ensure the transfer of energy performance certificates in connection with the sale or tenancy of buildings or parts of buildings. The amendment is intended to strengthen the mechanisms protecting the interests of property buyers in terms of obtaining an energy performance certificate for the acquired building or premises in connection with the conclusion of the agreement, and in the case of a tenant – receiving a copy of such a certificate upon conclusion of the tenancy agreement.
The amendment provides for an obligation on the seller or the landlord to provide a copy of the energy performance certificate of the building. According to the proposed change, in case of failure to provide the certificate, the notary will be obliged to refuse to perform notarial act.
The planned changes should be assessed positively. The rigour of refusal to draft a notarial deed will probably contribute to improving the implementation of the obligation to provide buyers or tenants with energy performance certificates.