By Malwina Jagiełło, advocate, senior associate, Kochański & Partners
Owners of apartments and buildings who intend to sell or rent their property will have to expect an additional cost of several thousand zlotys, due to the need to obtain a so-called energy passport. This is because amended regulations on the energy performance of buildings will come into force as early as the end of April 2023.
The energy passport (or energy performance certificate) will become essential for a property owner to have when selling or leasing an apartment or building. In light of the prevailing energy crisis, these changes could significantly increase public awareness of energy consumption and costs, and generate savings for consumers during the use of buildings.
Energy performance certificate
The amendment to the Energy Performance of Buildings Act and the Building Law implements the provisions of the directives of the European Parliament and of the Council on the energy performance of buildings and energy efficiency in the Polish legal framework.
An Energy Performance Certificate (EPC) is a document specifying the energy needed to meet the energy demand associated with the use of a building or part thereof.
The obligation to have an EPC has been in place in Poland for some time, but until now it only applied to buildings constructed after 2009.
Once the amendment comes into force, an EPC will be required for all buildings and will be obligatory for the purposes of dealing with the property.
This means that the owner will have to produce an energy passport:
- When selling a building/apartment on the basis of a sales agreement,
- When selling a building/apartment on the basis of an agreement for the sale of a co-operative member’s ownership right to the apartment, and
- When entering into a lease agreement for a building/apartment.
In the case of a sales agreement, the certificate should be handed over to the purchaser at the time of drawing up the notarial deed and the notary will be obliged to record this in the notarial deed.
The amendment also specifies that if the property for sale or lease is a building, the energy performance certificate to be provided should concern that building. In the case of a part of a building (e.g. an apartment), the certificate should concern that specific part (the apartment) and not the whole building.
For newly constructed buildings, it will be mandatory to attach a copy of the energy performance certificate, in paper or electronic form, to the notification of the completion of construction or the application for an occupancy permit.
When entering into a lease agreement, the landlord will be obliged to provide the tenant with a copy of the certificate at the time of signing.
Energy passport for existing leases
According to the ministry responsible for amending the relevant laws, the above obligation will apply only to newly concluded lease agreements.
As regards agreements in force on the date the new act enters into force, the lessor will not be obliged to hand over the certificate to the current lessee.
The act does not refer to any other agreements (e.g. leasehold, Polish: umowa dzierżawy) and it explicitly refers to lease agreements (Polish: umowa najmu). According to the principle of lawmaker rationality, the omission of leasehold agreements from the amended provisions should not be interpreted broadly. It can therefore be assumed that in the absence of any reference to leasehold agreements, these agreements will be excluded from the regulation on building certification.
Obtaining an energy performance certificate
EPCs can only be prepared by an individual entered on the list of persons authorised to prepare such certificates, which is available in the Energy Performance of Buildings Central Register kept by the Ministry of Development and Technology. The information contained in the certificate will also go into the register, which is and will be publicly available. The time for producing a passport is generally quite short – around two to three days, while the passport itself will be valid for 10 years from the date of its issuance.
Penalties for non-compliance
The problem with the existing legislation was the lack of effective mechanisms to ensure the transfer of energy performance certificates when selling or leasing buildings or parts of buildings.
The current amendment resolves this issue and provides for a fine for entities obliged to submit a certificate and failing to do so.
The new law does not regulate the fine amounts, but it may be presumed that, as such cases will be examined on the basis of the Petty Offences Procedure Code, the fine may reach 5,000 złotys.
In addition, the notary drawing up a sales agreement will be required to record the fact of handing over the certificate in the notarial deed and, if the certificate is not provided, will instruct the seller on the fine.
Energy passport – objectives of the amendment
The proposed changes should be welcomed. The legislator has indicated that the main objective of the amendment is to protect the interests of prospective purchasers or tenants by ensuring that the technical condition of the building and its energy needs can be determined.
The amendments also aim to build public awareness, and increase the drive towards designing buildings with the highest possible performance and using technical solutions and better-quality materials to save energy and heat. This should translate into significant savings in energy consumption, reduced building operating costs and savings for consumers themselves.
Making public the information contained in the list of energy performance certificates is intended to enable any person concerned to verify the authenticity of their certificate.
This will also make it possible for notaries to verify the EPCs provided during transactions involving the transfer of rights to a building or premises.