25.04.2023 Business law

New obligations regarding energy performance certificates

On 28 April 2023, the amendments to the Act on Buildings Energy Performance will come into force. The new regulations introduce an absolute obligation to provide an energy performance certificate when selling (original certificate) or renting (copy of the certificate) a building or premises lease. Failure to provide the certificate is sanctioned by a fine.

Energy performance certificate

An energy performance certificate is a document providing data and energy ratings for a building or part of it and specifying total energy demand required for its intended use.

When is it required?

 The certificate is needed when a building or parts thereof are sold or rented. The energy performance certificate is to be delivered by the seller or landlord to the buyer or tenant, either upon conclusion of the sales or tenancy contract, but when renting, the landlord only gives the tenant a copy of the certificate.

According to the amended regulations, the obligation to draw up energy performance certificates will refer to all buildings and premises to be traded, no matter when they were constructed.

A certificate will not be required if the building or premises are to be used only for personal purposes without any intention to sell or rent.

Moreover, the obligation to draw up a certificate will also be imposed on all investors erecting new buildings (with the exception of houses of up to 70 m2 constructed to satisfy the investor’s own residential needs and buildings exempted from this obligation under the provisions of the Act on Buildings Energy Performance ), since a certificate issued for the building will have to be attached obligatorily to the application for an occupancy permit or a notice of construction completion.

For residential developments, the above regulations result in such a paradox that in order to carry out the acceptance of the building, the developer will have to prepare a certificate for the entire building, and when selling the premises – also for individual apartments. Such a regulation seems to be completely unnecessary.

Who commissions the certificate?

The obligation to possess an energy performance certificate is mandatory for:

  • owner of a building or part thereof (premises);
  • manager of the building or part thereof;
  • person who holds a co-operative member’s ownership right to the premises or a co-operative member’s tenancy right to the premises.

In practice, for older premises or those for which an energy performance certificate has never been drawn up, the obligation to draw up a certificate will rest with the owner who intends to sell or rent the premises.

At the same time, the amended legislation makes it unnecessary for tenants of premises to ensure that certificates are drawn up. Such obligation was previously imposed on tenants when they requested a certificate, but the landlord did not fulfil this obligation.

Material exclusions for obtaining the certificate

The catalogue of buildings for which the obligation to draw up energy performance certificates does not apply has not been changed.

By way of reminder, we indicate that this obligation does not apply to:

  1. buildings protected under the regulations on the protection and care of historical monuments;
  • buildings used as a place of worship or religious activities;
  • industrial or commercial use buildings not equipped with energy-consuming installations, excluding built-in lighting installations;
  • residential buildings to be dwelled for no longer than 4 months a year;
  • detached buildings with a usable floor area of less than 50 m2;
  • farm buildings with an EP indicator of an annual non-renewable primary energy demand of no more than 50 kWh/(m2-year).

Manner of providing the certificate

An energy performance certificate should be submitted in paper form and should bear the number assigned in the central register of energy performance of buildings and the signature of an authorised person. Under the amended legislation (from 28 April 2023), it will also be possible to obtain the certificate in electronic form – bearing the number assigned in the central register of energy performance of buildings and a qualified electronic signature, a trusted signature or a personal signature of the authorised person.

Validity of the certificate

With regard to the validity of certificates, the amendment does not introduce any changes. The energy performance certificate will therefore continue to be valid for 10 years from the date on which it was drawn up, with the proviso that it will cease to be valid earlier if, as a result of construction and installation works, the energy performance of a building or its part changes.

Advertisement for the sale or rent of a building or premises

The amendment extends the list of information to be indicated in the advertisement for the sale or rent of a building or premises. Apart from the previously required annual final energy demand indicator, it will also be necessary to provide the indicators for annual demand for usable energy and non-renewable primary energy, the share of renewable energy sources in the annual final energy demand and the CO2 emission per unit.

Sanction for failure to provide a certificate

Major changes have been introduced with regard to the sanctions for failure to provide a performance certificate when selling or renting. Previously, the buyer (tenant) had the right to demand from the seller to draw up a certificate and deliver it, and if the seller did not fulfil this obligation within 2 months, the buyer (tenant) had the right to the so-called substitute performance, i.e. to draw up a certificate at the seller’s expense. Now this regulation has been lifted and replaced by an absolute obligation to provide the certificates to buyers or tenants, and failure to do so will be an offence punishable by a fine of up to PLN 5,000. At the same time, notaries will note in sales contracts the fact of providing certificates and will instruct sellers on their legal liability if they fail to do so.

This regulation does not seem to be well aimed. Prosecuting and fining the seller will not ensure that the buyer obtains the energy performance certificate required by law. Thus, if the buyer wants to sell the building or premises, or rent them out, they will have to bear the cost of drawing up the certificate. It will also be questionable whether the buyer will be able to draw up a certificate immediately after the transaction and attempt to charge the seller with the costs, as in principle, the ownership of a building or premises does not trigger the obligation to draw up a certificate, which only comes into effect if there is an intention to sell or rent the building or premises. The amendment to the provisions therefore curtails the rights of buyers and deprives them of legal protection, as the sanction for the lack of a certificate in the form of a fine, introduced at the request of the notarial community, does not appear to be a solution that will adequately fulfil its function and motivate sellers to draw up certificates.

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Grzegorz Witczak Director of the Commercial Law and Property Department
TGC Corporate Lawyers
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