Search
Contact
02.09.2016 | KPMG Law Insights

Liability trap energy certificate

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.

Explore #more

23.10.2025 | KPMG Law Insights

What the Federal Network Agency’s FAQs mean for storage system operators

On October 17, 2025, the Federal Network Agency published FAQs on the regulatory treatment of stationary battery storage systems (“BESS”). The FAQs are a guide…

23.10.2025 | KPMG Law Insights

What the “construction turbo” means for municipalities and building supervisory authorities

The Bundestag has passed the “construction turbo” and local authorities can now significantly accelerate certain construction projects. According to the law passed on October 9,…

22.10.2025 | In the media

KPMG Law guest article in Das Inverstment: Private debt for the masses: How the FRBG is turning the fund market upside down

Paradigm shift in the fund market: The new FRBG makes private debt retail-capable and creates citizen participation funds. In this article, KPMG Law expert Ulrich

20.10.2025 | KPMG Law Insights

Data centers: Requirements for emergency power generators continue to rise

When the power fails in data centers, the consequences are often severe: Data loss and system failures can cause considerable financial damage to companies. Emergency…

16.10.2025 | In the media

KPMG Law contribution to the anthology “Crypto-Asset Compliance”

KPMG Law experts Ulrich Keunecke and Marc Pussar have contributed chapter 3 on capital market and banking supervisory law aspects of crypto-assets to the anthology…

14.10.2025 | Deal Notifications

KPMG Law and KPMG advise Bühler Motor GmbH on the sale of Bühler Motor Aviation GmbH to Astronics Germany GmbH

KPMG Law Rechtsanwaltsgesellschaft (KPMG Law) and KPMG AG Wirtschaftsprüfungsgesellschaft (KPMG) have advised Bühler Motor GmbH on the sale of all shares in Bühler Motor Aviation…

10.10.2025 | In the media

KPMG Law guest article in NZG: Compliance due diligence in SMEs: Minimum scope and contractual mapping of compliance risks of the target company

In the context of M&A transactions, compliance usually still plays a subordinate role in legal due diligence. The purpose of this article is, on…

10.10.2025 | In the media

KPMG Law honored at the M&A Award Night 2025

KPMG Law has been awarded the “M&A Transaction Advisory” prize at this year’s M&A Award Night of the Bundesverband Mergers & Acquisitions e.V. (BM&A) and…

10.10.2025 | In the media

KPMG Law guest article in CCZ: The guide for compliance management systems in small and medium-sized enterprises (DIN SPEC 91524)

Compliance in SMEs is challenging: the legal responsibility for compliance is undisputed, but the specific tasks are unclear and depend on the specific situation of…

10.10.2025 | KPMG Law Insights

Transformation in legal departments in 2026 – the most important trends and best practices

Three topics in particular are currently driving the transformation of the legal department: AI, the rapid increase in regulation and geopolitical developments. There has always…

Contact

Dr. Rainer Algermissen

Partner
Head of Construction and Real Estate Law

Fuhlentwiete 5
20355 Hamburg

Tel.: +49 40 3609945331
ralgermissen@kpmg-law.com

Petra Swai

Senior Manager

Fuhlentwiete 5
20355 Hamburg

Tel.: +49 40 3609945523
pswai@kpmg-law.com

© 2024 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit https://home.kpmg/governance.

 KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.

Scroll