Is the presence of an energy label a choice?
Clause 1.5 of the 2015 model lease for office space and other commercial premises within the meaning of Section 7:230a of the Dutch Civil Code drawn up by the Real Estate Council of the Netherlands (ROZ) contains a selection option asking whether the lessee, when concluding the lease agreement has or has not received a copy of the energy label – as defined in the Energy Performance (Buildings) Decree [Besluit energieprestatie gebouwen] – for the leased property.
But does this involve a choice? Where leasing premises with an office function is concerned, the brief answer is NO. When sold, leased, demolished or officially delivered, a building with an office function is required to have a valid energy label. This is an obligation on the owner and lessor of the building.
Since 1 January 2015, the Human Environment and Transport Inspectorate (ILT) has checked the obligation for there to be an energy label when a property is sold or leased. If there is then no energy label, you risk a fine of up to EUR 20,250.
The risk of a fine is not the only reason for a lessor to take account of the energy label. Apart from social considerations, there are legal issues that need to be considered.
The Minister for Housing and the Central Government Sector, Stef Blok, announced in a letter of 28 November 2016 that he intended introducing an obligation, with effect from 1 January 2023, for office buildings to have at least a “C” label. That obligation will apply to buildings that have an office function according to the buildings and records database (BAG), with a lower limit of 100m². An exception will be made (for the present) for historic buildings. Imposing this obligation requires an amendment to the 2012 Buildings Decree [Bouwbesluit]. The required procedure is expected to start in the first half of 2017. The obligation to meet at least the requirements for a “C” label can have far-reaching effects. If a building currently has a “G” label, then according to Mr Blok’s letter structural alterations to the shell will be necessary in order to acquire the “C” label.
This means that lessors of offices with a label that is inferior to the “C” label already need to consider this. Lease agreements must now allow for the necessary measures. 2023 may seem far away, but it will quickly be upon us. Given the duration of leases, it is quite possible that measures will need to be implemented during the term of a lease that is currently being concluded. The lessor is already aware of the need for implementing these measures, or at least “should be aware”. Depending on the measures to be implemented, there may be a shortcoming in the relationship with the lessor. Because it already “should be aware”, then if there is no specific stipulation in the lease agreement, the lessor will probably be unable to invoke the exclusion of liability in the general provisions with the ROZ’s 2015 model lease.
Lessors are therefore advised no longer to lease out any office space without an energy label. If the label is inferior to the “C” label, they should clearly indicate in the lease agreement what measures are to be taken and what the associated consequences are.
Looking even further ahead: it seems as if the “A” label will become mandatory from 2030 on. Will that mean needing to do everything over again, with yet more challenges? Would it not be better to already “kill two birds with one stone”?