Based on the new EU directive on the energy performance of buildings, the Austrian legislator revised the Act on the Presentation of Energy Performance Certificates ("Energieausweis-Vorlage-Gesetz", BGBl I 27/2012); the new act will come into force on 1 December 2012.

The main changes introduced by the new act are: (i) an expansion of the obligations imposed on a seller or lessor of a building unit, (ii) the determination of exemptions and a listing of certain categories of buildings for which an energy performance certificate does not need to be presented and handed over to the purchaser or lessee, and (iii) the introduction of a set of new sanctions in case a seller, lessor or real estate agent does not comply with the obligations defined in the new act.

According to the previous act, a seller or a lessor of a building unit (only) needed to present and to hand over an energy performance certificate to the purchaser or lessee. In addition to this obligation, the new act stipulates an obligation to inform potential buyers or lessees of a building unit’s energy performance indicator in the advertisements in commercial media. This obligation to inform falls not only on the seller and the lessor, but also on the real estate agent placing the advertisement.

The new act also provides for exemptions for certain categories of building which are exempted from both the information obligation in commercial media and the obligation to present and hand over an energy performance certificate. The scope and the legal consequences regarding some of these exemptions are not clear. In case of a building which will be condemned by the purchaser within three years after acquisition, the seller does not need to present and hand over an energy performance certificate. However, the act does not provide a definition for which buildings are considered as “to be condemned” under this act. Furthermore, the legal consequences in case the purchaser does not pull down the building within three years are not explicitly mentioned in the provision.

The most significant changes in the new act concern a set of new sanctions. According to the previous act, the energy-related characteristics of the building unit were considered to be agreed upon in the event that a seller or purchaser failed to present and hand over an energy performance certificate. Whereas this legal consequence remains unchanged, under the new act, a seller or lessor also faces an administrative penalty up to EUR 1,450 if he1 fails to provide information on the energy-related characteristics of a building unit in advertisements in commercial media. Such penalty also falls on the real estate agent in case he fails to point out to the seller or lessor the necessity to comply with the information obligation.

The administrative penalty mentioned above also falls on a seller or lesser in case he does not present an energy performance certificate to the purchaser or lessee in due time and/or does not hand over the energy performance certificate within 14 days after the contract has been concluded. Additionally, the purchaser or lessee is entitled to obtain an energy performance certificate himself at the expense of the seller or lessor if not provided with such.

In case an energy performance certificate has been presented and handed over to the purchaser or the lessee and the energy-related characteristics turn out to be inaccurate, the purchaser or lessee is entitled to claim warranty. In addition, the issuer of the energy performance certificate is liable to the purchaser or lessee for the accuracy of the energy-related characteristics stated in the energy performance certificate.

It remains to be seen whether the new provisions will prove to be effective. This depends on the one hand on whether purchasers and lessees will be influenced in their decision-making by the information on energy-related characteristics provided in advertisements and, on the other hand, on the degree to which sellers and lessors comply with the obligations set by the new act in order to avoid legal consequences.