New obligations for building owners will come into force from 19 July 2013 under Law no. 159/2013, which amends and completes the existing Law no. 372/2005 and implements Directive 2010/31/EU on energy performance of buildings.
The energy performance certificate should be obtained by the relevant owners in view of concluding sale or lease agreements.
The new piece of legislation deals with energy performance in the context of public interest measures regarding energy saving, urban landscape planning and environmental protection.
The energy performance certificate is mandatory for both new and old buildings in the event that the owner wishes to sell, lease or renovate such buildings.
The energy performance certificate is valid for 10 years from the date it was issued. Energy performance certificates are issued by authorized energy auditors. The seller/lessor/administrator must include details with respect to the energy performance certificate in the sale purchase or lease offer communicated to the prospective buyer/ lessee.
The buildings which are within the scope of Law 159/2013 include: family homes; blocks of flats; education institutions; hospitals; hotels and restaurants; commercial buildings; sports buildings; and other types of energy consuming buildings.
The following types of buildings are exempted from certification: protected monuments; religious buildings; temporary buildings; and non-residential agricultural buildings with low energy demands.
There is an obligation on the seller/lessor/administrator of an existing building to make the certificate available to a potential buyer, respectively lessee, before the buyer/lessee enters into the sale purchase or lease agreement so that the buyer/lessee is fully informed about the energy performance of that building; otherwise, the sale purchase/lease agreement may be nullified by the buyer/lessee (in Romanian “nulitate relativa”). Although the law is not clear in this respect, it appears that the parties to sale purchase or lease agreements may agree that the buyer or the lessee will be responsible for obtaining the energy performance certificate. We note that this requirement is applicable only for sale and lease agreements concluded after 19 July 2013.
Once the sale purchase agreement has been concluded, the owner must deliver the original certificate to the buyer. Upon filing the ownership documents or the lease agreement, as applicable, for registration with the fiscal authorities, the owner or lessor must also submit a copy of such certificate to the fiscal authorities.
For newly erected buildings, the investor/owner/administrator must present the original copy of the energy performance certificate to the commission who ascertains the completion of works and attach a copy to the reception minutes upon completion of works. Without the certificate, the reception minutes may be rendered null and void. On a practical note, absence of such certificate may create issues at the point of registration of buildings (e.g. with the Land Book or fiscal authorities), who may refuse relevant registrations on such grounds.
If the building is sold before completion of the works, the owner or the investor must provide sufficient information for the buyer to assess the energy performance of the building. In such case, the new owner has an obligation to obtain an energy performance certificate once the building is completed.
The National Union of the Romanian Public Notaries has not yet issued a formal point of view on the application of the new requirements regarding the energy performance certificate. Therefore, for the time being, public notaries might refuse to authenticate sale purchases or, as the case may be, lease agreements entered into after 19 July 2013, if the parties fail to present the building energy performance certificate. We note however that lease agreements can be concluded consensually, and such agreements will not usually be subject to notarial scrutiny with respect to the energy certificate. In such cases, the parties could agree contractually on their relevant obligations, including as regards obtaining the energy certificate.