Unique Service agreement for conveyancing Solicitors.
We offer solicitors our unique service agreement that will ensure protection for the solicitors and their clients from any adverse consequences from the Energy Performance of Buildings Directive. Our special 48 hour express service and our general 5 day BER service ensure that delays are minimised for you and your clients. All of these are based on all relevant information being made available to our assessor
on the first day.
We guarantee that where possible we will do everything we can to give each property the best BER rating possible within the regulations. Drawing from our experience and the best practice systems we have put in place we can with the assistance of the client guarantee the best possible rating. We have no hidden agenda and our aim is to provide you and your clients with the best possible independent and accurate BER service.
Building Energy Rating (BER) Certificates
S.I. No 666 of 2006 provides for the transposition into Irish law of Articles 5 and 7 of the EU Energy Performance of Building Directive (2002/91/EC of 16th December 2002). The Regulations require that every new dwelling and non-domestic building offered for sale or rent to any prospective purchaser or tenant (where appropriate, any reference to ‘purchaser’ includes ‘tenant’ and any reference to ‘ve
ndor’ includes ‘landlord’) must have an energy rating certificate and advisory report provided by a certified BER assessor.
What buildings do the regulations apply to?
- New dwellings for which planning permission was applied for on or after 1st January 2007. A transitional BER exemption applies to a new building for which planning permission was applied for on or before 31st December 2006, provided that substantial work has been completed by 30th June 2008.
- New non-domestic buildings for which planning permission was applied for on or after 1st July 2008. A transitional BER exemption applies to a new non-domestic building for which planning permission was applied for on or before 3oth June 2008, provided that substantial work has been completed by 30th June 2010. Except when such building is offered for a second or subsequent sale or letting.
- Existing build
ings of any class offered for sale or letting on or after 1st January 2009.
Therefore All new buildings and all existing buildings offered for sale or rent must now have a current valid BER Certificate
(Other exemptions are set out in the regulations)
[A provisional BER Certificate is required if the vendor is selling off plans: this lapses on the sooner of completion of the building or the expiry of 24 months, and in respect of completion of construction, a full BER certificate and advisory report is then required for any sale or letting.]
[It should be noted however, that buildings availing of transitional exemptions could be caught by the requirement to produce a BER certificate on a subsequent sale.]
[Under the regulations “substantial work has been completed” means the structure of the external walls of the building has been completed.]
Full details of exempt buildings can be found on the SEI Website and include the following:
- a new dwelling for which planning permission was applied for or a planning notice was published on or before 31st December 2006 and is substantially completed on or before 30th June 2008;
- a new building other than a dwelling, for which planning permission is applied for or a planning notice was published on or before 30th June 2008 and is substantially completed on or before 30th June 2010 except where such a building is being offered for a second or subsequent letting;
- National monuments
- Protected structures
- Places of worship
What is a BER Certificate?
S.I. No 666 of 2006 is concerned with providing prospective purchasers with standardised information concerning
the energy rating of the building. A BER certificate simply provides in a prescribed form a rating of the energy consumption of the building. The BER certificate must be accompanied by an advisory report produced by a BER Assessor, which report may recommend improvements to the energy performance of the building. However, there is no obligation on either a vendor or prospective purchaser to make the recommended improvements and there is no requirement that a building should achieve any particular level of energy rating.
Is a Solicitor an “agent” for the purposes of the regulations?
Regulation 7(2) imposes the obligation on a “person who offers for sale or letting…. A building “to produce the BER certificate and Advisory report. This obligation extends to “….any agent acting on behalf of such person….” However the term “agent” is not in fact defined for the
purposes of the regulations. It is the view of the conveyancing committee of the law society however, that a solicitor acting in the conveyancing/letting on behalf of a vendor is an agent of the vendor and is prima facia caught by the obligations of article 7(2)
At what stage should a BER Certificate be produced?
In the ordinary course of property transactions, including auctions, the owner or the estate agent or auctioneer will have advertised, promoted or otherwise transmitted information to potential purchasers before a solicitor is instructed to produce contracts or a letting agreement. It should thus be expected that the obligation of Article 7(2) will already have been fulfilled by the time a solicitor is appointed. In cases where the vendor or his selling/letting agent have not already sought or obtained a BER certificate it is the view of the conveyancing committee that a solicitor acting in the sale/letting as agent of the
vendor must produce a BER certificate and advisory report.
How long is a BER Certificate Valid for?
Generally a full BER certificate is valid for 10 Years and a provisional BER Certificate is valid for 2 years.
A BER Assessor must maintain all records relevant to the certificate for as long as it is valid this is advantageous in case that the purchaser subsequently wishes to dispose or rent the property.
It is not considered that a solicitor who has acted in a sale has any ongoing obligation to retain a BER certificate. However, it is a useful document that could with advantage be kept with the title deeds. However, if not so kept it is replaceable in the sense that a new assessment can be obtained, although this could be a matter of some expense for the client. At Gilroy Energy Services we will provide our existing clients with replacement certificates free of charge.
What if a BER certificate is rendered invalid?
In the normal course of things, a BER certificate remains valid for 10 years. After which a further assessment is required in the event of a sale or letting. Article 16(5) creates a particular difficulty insofar as a perfectly valid BER certificate may be rendered invalid in circumstances where there is
(a) a significant deterioration of the fabric (of the building)
(b) an extension
(c) a change in the heating system or type of fuel used
It seems logical therefore that if an invalid certificate is offered to a prospective purchaser /lessee, there would be a failure to comply with Article 7(2) because the certificate is invalid and hence no certificate is produced. It is not clear how or in what circumstances as assessment will be made as to whether any changes of the
type referred to above may have occurred However, if , on a spot check, it is found that an invalid certificate is proffered, any of the owners or agents involved may inadvertently cause a breach of Article 7(20. The only protection that a solicitor might obtain in the circumstances where a BER certificate is not a recently issued one, is to obtain a written declaration from the client that the circumstances set out in Article 16(5) have not occurred. Regrettably the term “significant deterioration in the fabric” is not defined in the regulations, and, thus little guidance can be gleaned. An extension to the building or change in the heating system or type of fuel may be more obvious. It is possible that multiple BER certificates may be needed in the event of substantial renovations and/or extensions.
Penalties for breach of the regulations.
While it would appear that failure to produce a BER certificate does not
have any consequences in conveyancing terms for the title, failure to comply with the regulations renders the person concerned liable to prosecution. Article 10 provides that a person who contravenes any requirement of the Regulations commits an offence. Such an offence is punishable by fine on summary conviction not exceeding €5,000 and in the case of a breach of Article 23(3) which essentially refers to the obstruction of an authorised officer, may also include a term of imprisonment.
Contact us at any time on
T: 087 9386694
Streedagh, Grange, Co. Sligo