Liability trap energy certificate

The new Energy Saving Ordinance (EnEV) came into force on May 1, 2014 and brings further obligations for property owners and landlords. There are also new regulations for real estate sellers to consider. For example, certain information from the energy certificate must already be reproduced when a building or rental space is advertised. There is a risk of liability here.

Mandatory information in real estate advertisements

Advertisements for the sale or rental of real estate must contain the essential data of the energy certificate as of May 1, 2014 (§ 16a EnEV 2014). This applies to advertisements in commercial print and electronic media, such as newspapers, magazines and on the Internet.

The mandatory information must only be provided if an energy certificate is available at the time of the real estate advertisement, the validity of which has not yet expired.

Mandatory information includes, in particular, the following data:

• the type of energy certificate (consumption or demand certificate)
• the value of final energy demand and final energy consumption
• the main energy sources for heating the building
• for residential buildings: the year of construction and the energy efficiency class

Incorrect mandatory information as material defects

Under general sales law, a seller of real estate is exposed to warranty and rescission risk if the property sold is defective. A material defect exists if the so-called actual condition of the object of purchase deviates from the so-called target condition. The target quality also includes such properties that the buyer can expect according to the seller’s public statements.

With regard to the mandatory information from the energy certificate, a liability risk of the seller for the correctness of the information can therefore arise, if one assumes that a real estate advertisement is a public statement of the seller and the mandatory information co-determines the target condition of the building. Incorrect data in the mandatory data can then constitute a material defect of the building.

In some cases, it is claimed that the seller only fulfills his obligation under public law and only provides information about the content of the energy certificate in a real estate advertisement. According to this, a seller would only be liable if he had culpably provided false information to the issuer of the energy certificate.

However, it is predominantly assumed that mandatory information in real estate advertisements is part of the target condition – similar to the manufacturer’s information on the fuel consumption of a motor vehicle – and that the seller is liable for its correctness. As long as this legal question has not been clarified by the courts, we recommend that a corresponding exclusion of liability be expressly formulated in the purchase contract.

Drafting of contracts to avoid liability of the real estate seller

An exclusion of liability with the aforementioned objective is likely to be permissible in a real estate purchase agreement both as an individual agreement and as a general business condition. In order to effectively exclude the seller’s liability, the contracting parties should clarify, in the sense of a negative agreement on quality, that the data stated in the energy certificate are not owed and that the buyer acquires the building regardless of this information.

In this way, it can be ensured that the information from the energy certificate is not part of the agreed target condition of the building and that any errors in it do not constitute a material defect in the building.

Correct contract design also in the rental agreement

The landlord should also prevent a liability risk with the right contract design. The lease agreement should therefore contain explicit provisions with regard to the energy certificate. Referring to the merely informative character of the energy certificate, the landlord should declare that he assumes no liability for the correctness of the certificate and for the information provided therein. The energy certificate should also not be attached to the lease as an annex so that it does not become part of the contract.

First real estate advertisement – then energy certificate ?

According to the wording of § 16a EnEV, the seller is only obliged to provide mandatory information in a property advertisement if an energy certificate is available at that time. It is therefore recommended in some cases to have the energy certificate issued only after a rental advertisement has been published.

However, this cannot be permanently sound advice. The energy certificate must be presented to any prospective buyer or tenant at the latest when the premises are inspected, and the original or a copy must be handed over when the contract is concluded. The buyer should also protect himself from possible liability by carefully checking the previously published real estate advertisement once again for any typographical errors immediately before the conclusion of the purchase contract and, if necessary, correcting any information there in good time.

Conclusion

With the amendment of the EnEV, the legislator has strongly weighted the interest of a potential contractual partner in the energetic condition of the building by granting both the prospective buyer and the prospective tenant corresponding rights to information well before the conclusion of a contract. This is contrasted by a very far-reaching liability risk on the part of the seller or lessor. A property seller may be exposed to the buyer’s comprehensive warranty rights, up to and including rescission of the entire purchase contract, even in the event of an inadvertent typing error in the building’s sales advertisement, even though he or she is generally unable to check the energy certificate for the accuracy of the information. Therefore, a real estate seller should in any case protect himself from any liability risks by drafting the contract correctly. The same applies to a landlord who can avoid the “liability trap energy certificate” with the right wording in the rental agreement.