What is an energy performance certificate?
The energy performance certificate compiled based on the respective (primarily state law) technical building provisions is a certificate about the overall energy efficiency of buildings or individual objects of utilisation in buildings by way of calculation of their energy requirement (within the meaning of regular utilisation based on the building and its properties;
no attempt is made to issue forecasts about the actual consumption which depends on the utilisation behaviour, climatic parameters and of course the weather, among other things!). In addition, the energy performance certificate also contains the total energy performance figure along with recommendations for the optimisation of the energy efficiency.
Who issues the energy performance certificate and how long is it valid for?
The authorisation to issue an energy performance certificate is based on the respective construction provisions, i. e. it is governed by the Federal States. Builders, civil engineers and legally certified experts for the construction trade are authorised to do so, as well as test institutions such as TÜV Austria.
According to EAVG, an energy performance certificate may at most be ten years old, i.e. a new energy performance certificate will have to be issued every ten years.
In which cases is the presentation of an energy performance certificate required, what is the effective date of this requirement and will there be any exceptions?
EAVG requests that the vendor or landlord (landlord, lessor) submits an energy performance certificate to the buyer or tenant (tenant, lessee) for every sale and transfer for lease (tenancy, lease) of buildings or objects for utilisation by the date the contractual statement is issued.
This obligation per se entered into force on 1 January 2008; however, for buildings for which the construction permit was issued prior to 1 January 2006, it will only apply after 1 January 2009.
Exceptions for the required presentation are earmarked for building categories for which no energy performance certificate is required based on the respective applicable structural provisions. Based on the building guidelines, the technical provisions may grant an exception for certain buildings (such as e.g. protected historic monuments, buildings used for religious purposes, temporary buildings with an intended utilisation term of up to two years, commercial and agricultural facilities with low energy consumption, residential buildings with an utilisation term of less than four months per year or freehold buildings with a total useful area of less than 50m²). The actual exception of the duty to present the certificate will have to be reviewed based on the structural provisions of the respective states.
What is the purpose of EAVG?
The EAVG is based on the guideline of the European Parliament and the Council concerning the total energy efficiency of buildings (building guideline). The objective of the building guideline against the backdrop of the EU climate protection goals is to increase energy efficiency.
With the implementation of the building guideline, EAVG hopes to create transparency on the real estate market with respect to the total energy efficiency of buildings. The requirement of an energy performance certificate is designed to develop the market-defining significance, because it is expected that the energy efficiency data will have a significant impact on the decision of prospective buyers and as a result the vendor side will respond to the changed behaviour of the buyers.
This economic process is intended to achieve an improvement of the total energy efficiency of buildings "via market economy" (as opposed to regulatory enforcement).
Is a separate energy performance certificate required for every single utilisation object of the property?
No. In the interest of the "considerate implementation" of the building guideline, the EAVG is pursuing the - more cost-efficient- building-related approach: If the contract is concluded for a single utilisation unit of the building, the presentation or submission of a certificate for a comparable utilisation unit in the same building or any certificate for the entire building will suffice.
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What happens if no energy performance certificate is issued?
The non-presentation of an energy performance certificate within the meaning of EAVG will not be "prohibited" outright; no (penal) sanctions in this respect have been defined.
Nevertheless, the non-presentation of an energy performance certificate within the meaning of EAVG will not remain without consequence for the vendor or landlord: If no energy performance certificate or one that does not conform the the statutory requirements is presented to the buyer or tenant when the presentation is mandatory, the total energy efficiency corresponding to the age and type of building will be deemed agreed as a minimum: if the total energy efficiency of the building in question does not meet this minimum standard, the vendor or landlord will be liable for the consequences of the guarantee provisions.
These consequences of the guarantee provisions can not be limited for lease agreements. Indeed, they are only mandatory for purchase and lease agreements within the scope of applicability of the Vendor Protection Act (KSchG) (specifically: if a vendor or lessor sells or leases an object to a consumer as entrepreneur), although the contractual waiver is equally limited outside of the KSchG (in particular due to the ban on public policy or the gross discrimination in general terms and conditions or contract forms).
What does an energy performance permit cost, who is responsible for acquiring it and who will pay for it?
Estimates put the costs for the energy performance certificate for single and double family homes at approximately EUR 300.00 to EUR 500.00 and for a rental property with a useful area starting from 1,000 m² at approximately EUR 1.00 per m² of useful area.
When the property is sold, it is primarily the vendor who will bear the costs for the compilation of the energy performance certificate, whereby these costs will eventually be included in the purchase price.
Landlords who are making full use of the MRG (Act on Tenancy Law) will not be able to transfer the costs for the energy performance certificate (which they require for the ongoing tenancies) to the tenant according to a draft that has not yet been adopted, but they can at least cover it from the HMZ reserve (i.e. they are not required to use any own resources). When the rental or lease price can be set freely, landlords by nature have the opportunity to include the costs for the energy performance certificate initially paid by them into the rent or lease.
In the WEG (Residential Property Act), the acquisition of the energy performance certificate according to the draft law mentioned above will be designed to become a waivable duty of the administrator, i.e. the administrator will be required to obtain the energy performance certificate at the expense of the owner's association, unless the majority of co-owners adopt a different majority decision or the co-owners unanimously agree to something else. In this sense, the administrator is required to include the costs for the energy performance certificate into the projection.
What are the duties of real estate trustees in connection with EAVG?
In principle, brokers, administrators and builders are required to inform all clients about the duty to present the certificate on the occasion of the sale or transfer for tenancy and in particular about the legal consequences of the omitted presentation!
If this duty to inform is violated, this will at least create the basis for the clients to reduce the real estate trustee's claim for remuneration or commission (or in case of redhibition subject to the guarantee provisions the elimination of the claim for commission).
In addition, the real estate trustee who violated his duty to inform mainly runs the risk of being sued for compensation by the buyer or landlord who himself is confronted with warrantee claims of the buyer or tenant because of omitted or unconstitutional presentation of the energy performance certificate. In view of the potentially marked difference between the fictitious management costs for a building with age- and utilisation-adequate overall energy efficiency and the actual higher management costs, the claims may be very high! In my view, the claim for compensation asserted by the buyer or tenant opposite the broker he appointed is also conceivable if the broker failed to provide information about the consequences of the warranty provisions and the buyer or landlord missed warranty deadlines because of this omitted information.
In addition, as representative of the property owner or the community of property owners, the administrator or possibly the developer is obligated to commission the creation of the energy performance certificate. A special covenant will be included in the WEG for this purpose.