No BER Cert? Not only are there statutory consequences, there mayalso be conrtactual consequences! It is now well documented that a Landlord who offers for sale or letting his property, is required to produce a copy of the BER Certificate and Advisory Report for that property. The obligation extends to include any agent of the Landlord, to produce a BER Certificate and Advisory Report to every potential tenant, prior to any agreement being entered into between the parties.
Both the Local Authorities and Sustainable Energy Ireland (“SEI”) are responsible for enforcing the requirements of the Regulations and failure by the owner, or the agent of such owner, to produce without reasonable excuse within 28 days a printed copy of a BER Certificate is an offence which may be punishable by fine on summary conviction not exceeding €5,000.00c.
However, over and above the risk of statutory penalties being incurred under the Regulations all landlords should be aware that If a BER Certificate and Advisory Report is not provided by the Landlord prior to signing a lease agreement, this flaw cannot be remedied by any subsequent provision of a BER Certificate and Advisory Report unless the tenant is simultaneously given the opportunity to pull out the contract. It is our view that non-production or late production of a BER cert could be used by a tenant to undermine any contract or lease agreement which was entered into with a Landlord. In this way, it is vital that a Landlord produces a BER Certificate and Advisory Report when the property is offered for let, firstly so as not to delay the completion of a letting and secondly to protect against a tenant attempting to avoid contract or lease agreement subsequently entered into.
Anticipated future developments – A positive obligation on Landlords to improve the Energy Rating of their properties.
Landlords should also be familiar with recent discussions and anticipated future developments in the area of energy efficiency. The National Energy Efficiency Action Plan 2009 – 2020 was published on the 8th May 2009 and it details the Governments plans and initiatives to improve Ireland’s energy efficiency with a view to reducing energy demand by 20% by 2020. The Plan contains a number of key action plan measures, one of which is to investigate the feasibility of applying a minimum standard for dwellings occupied by those in receipt of rent supplement (Measure Number 46) and this measure also states that any minimum standards set would be periodically adjusted.
The Minister for Energy, Eamon Ryan TD, officially launched the Plan and announced that the Government now proposes going into the rented sector with a view to looking at landlords who are in receipt of rent allowance and said as follows:
“Using the same infrastructure we have in terms of Building Energy Ratings, in the grants that we have available, in the knowledge that the return on the investment for any landlord is better than any other investment you could make by retro-fitting such insulation to the homes, we are now insisting that those landlords if they are in receipt of rent allowances will have that work done and will actually create a better, warmer home for people in rented property”
It is the Department of Communications, Energy and Natural Resources, SEI and the Department of Social and Family Affairs that are responsible for the implementation of this proposal and it will in effect compel landlords to upgrade their properties so as to meet further energy efficiency standards if they wish to be in a position to rent their property to tenants entitled to a rent allowance. The implementation of this proposal could have yet another disastrous effect on landlords who are not in a financial position to expend further monies upgrading their property as it will automatically eliminate their properties from the rental market in respect of tenants claiming rent allowance. Whether this will be implemented and the terms of any such implementation remain to be seen!
This document contains a general summary of recent developments and is not a definitive statement of the law. Specific legal advice must be obtained before taking action based on the summary set out herein and landlordsolutions.ie take no responsibility for any loss or damage caused in reliance on the information herein.
