INTRODUCTION  

A Building Energy Rating Certificate (“a BER”) shows the energy performance, C02 emission and approximate running cost of a building. It is similar to the energy rating found on new electrical items such as fridges, microwaves, cookers etc. The rating is expressed in performance categories ranging from ‘A’ (most efficient) to ‘G’ (least efficient).  

A BER is a requirement of the EU Energy Performance of Buildings Directive (2002/91/EC of 16 December 2002) which was transposed into Ireland by the EC (Energy Performance of Buildings) Regulations 2006 (SI No 666 of 2006) (“the Regulations”). Sustainable Energy Ireland (“SEI”) have responsibility under the Regulations for the implementation of the practical aspects of the BERs including the registration of BER Assessors, maintaining a register of assessments and collecting registration fees.  

WHO IS RESPONSIBLE FOR FURNISHING A BER?  

A BER and the accompanying Advisory Report must be furnished to any person expressing an interest in purchasing or leasing a building by “a person who offers for sale or letting… a building” and the obligation extends to “any agent acting on behalf of such person…”. The vendor/landlord of a property which is offered for sale or lease is the person responsible for furnishing a BER. However, where the vendor/landlord fail to furnish a BER where required, the obligation will extend to the “agent” of the vendor/landlord to ensure that a BER has been furnished.  

An “agent” in this context would appear to include an estate agent or solicitor acting in a property transaction. The Conveyancing Committee of the Law Society of Ireland have advised solicitors that if a client has not obtained a BER by the time a solicitor is in instructed in a sale/lease, then such client will have to be told by his solicitor that contract/lease documentation cannot be sent out until such time as a BER is obtained.  

WHEN SHOULD A BER BE FURNISHED?  

BER requirements were introduced on a phased basis since 2007. Since 1 January 2009, a BER is now required when any building is being offered for sale or rent, save for certain exempted buildings such as national monuments and protected structures, full details of which are listed in the Regulations.  

A BER must be furnished to a potential purchaser/tenant at the time that a property is offered for sale or rent and therefore before the Contract for Sale or Agreement for Lease/Lease is executed and exchanged. According to the Law Society, failure to produce a BER before execution of the documentation cannot be remedied by the subsequent provision of a BER, unless the purchaser is given the opportunity to back out of the Contract at the same time. This could have very serious consequences for a vendor/landlord as it could give the purchaser a justification for not proceeding after formal contracts are exchanged.

It is also worth noting that, unlike various other requirements in a property transaction, there is no provision available which would enable a prospective purchaser/tenant to waive the obligation to be provided with a BER, nor is there a requirement that such a purchaser/tenant seek or obtain a BER. The obligation is solely on the vendor/landlord to provide one.  

SELLING/LEASING A PROPERTY ‘OFF THE PLANS’  

A Provisional BER is required to enable buildings to be sold or leased ‘off the plans’ during the construction stage. The rating will be based on the design drawings and building specifications and will be valid for 24 months or until completion of the building, whichever is sooner. It is subsequently the responsibility of the vendor/landlord to have a BER Assessment carried out before the sale or lease of the property completes.  

WHO WILL CARRY OUT A BER ASSESSMENT AND HOW LONG WILL IT TAKE?  

A BER will be carried out by specially trained BER Assessors who are registered with SEI (usually building professionals like architects, engineers). A searchable database of registered BER Assessors available nationwide is included on the SEI’s website at www.sei.ie/ber. There is no limit on the number of BER Assessors who can operate in Ireland.  

According to SEI, the target turnaround time is two weeks from initial communication to a registered BER Assessor to actual production of the BER by the BER Assessor.  

COST OF A BER  

The liability for all of the costs associated with a BER rests with the vendor/landlord of a building. According to SEI, the cost of a BER will vary according to the size and location of the building and the advice is to shop around for the best price.  

It is estimated that the price of a BER for a residential property may vary from €150.00 - €350.00, with the potential for large discounts where there are multiple units within a development. In assessing the price of a BER for a non-residential property, factors such as whether the building is new or existing, the floor area, the complexity and the use of the property may influence the price to be charged. There is a standard publication fee of €25.00 payable to SEI in respect of each BER.  

HOW LONG WILL A BER BE VALID?

A BER is valid for 10 years from the date of issue unless there is a material change in the building. A material change would include an extension or a significant change to the building fabric or heating system of a building.  

MARKETING/COMMUNICATIONS GUIDELINES FOR USING BER RATINGS IN PROMOTIONAL MATERIALS

SEI have issued a range of guidelines in respect of using BER ratings in promotional materials. It is worth noting that the SEI corporate logo and/or the BER logo cannot be used on any publications or in any visual material in respect of BERs. This includes, but is not limited to printed brochures, flyers and other forms of advertising. When a party is promoting property, and where a BER rating is indicated or claimed on the advertising material, the material must indicate a range of BER ratings for all homes available in the development or indicate the minimum rating achieved by the poorest performing dwelling in the development advertised. Where a photograph of a dwelling is shown in an advertisement, the rating advertised must be for that particular dwelling shown. Finally, where a BER rating is advertised, the vendor/landlord must submit a rating to the SEI’s National Administration System in support of this claim and this rating must be accurate at the time of publication.

IMPLICATIONS OF NON-COMPLIANCE WITH THE REGULATIONS  

There is a maximum fine of €5,000.00 for not obtaining a BER when required and there is a maximum fine of €5,000.00 and/or a term of imprisonment not exceeding 3 months for not allowing authorised officers to enter, inspect and examine buildings.  

Failure to secure a BER at the correct time may delay the completion of a sale or lease of a property and there is also a risk that a purchaser/tenant could back out of a Contract for Sale or Agreement for Lease/Lease. However, according to the Law Society, failure to produce a BER does not have any consequences on the title of the property.