7 October 2022 The Sejm passed the Act amending the Act on the Energy Characteristics of Buildings and the Act on Construction Law. This amendment is an implementation Directive 2010/31 of 19 May 2010 on the energy performance of buildings (Official Journal of the European Union L, No. 153 to 18 June 2010, p. 13, as amended). Therefore, the rules for obtaining the energy performance certificate have been clarified and there have also been severe consequences for the lack of that certificate.
As amended, the energy performance certificate is to contain a statement by the person who has drawn up the energy performance certificate certifying that the document was generated from the central energy performance register of buildings. The statement is to be placed under the penalty of criminal responsibility for making false statements.
In the near future, mechanisms may be put in place for notaries to keep records of sellers who failed to comply with the obligation to provide the buyer with an energy performance certificate. Such records could be used to initiate proceedings in cases of infringement against the sellers.
High penalties for lack of an energy performance certificate
The amendment provides for fines to be imposed on the owner or manager of the building who has not obtained an energy performance certificate of the building or apartment. Importantly, the Sejm rejected the Polish Members' amendments 2050 introducing an upper limit fine for the absence of an energy performance certificate, meaning that a fine of up to a few can be paid for the absence of an energy performance certificate one thousand Gold.
The amendment restores the requirement for individual investors and developers to attach an energy performance certificate to the notice of completion of the construction or to the application for authorisation of use, excluding the buildings concerned under Article 3(4) Act dated 29 August 2014 with energy characteristics of buildings (i.e. Journal of Laws of 2021, item 497). This requirement does not therefore apply to:
- a building protected by the provisions on the protection of monuments and the care of monuments,
- a building used as a place of worship and for religious activity,
- industrial and economic buildings not fitted with energy-using installations other than built-in lighting,
- a residential building intended for use no longer than 4 months of the year,
- free-standing building with a usable area below 50m2,
- a farm building with an EP indicator setting out annual calculation requirements for non-renewable primary energy not higher than 50 kWh/(m2·year).
It should be stressed that the amendment does not alter the existing requirement for the owner of a building or dwelling to obtain an energy performance certificate in the event that he wishes to sell or rent it.
In turn, the amendment introduces additional obligations for the notary during the sale of the building or apartment by noting in the notarial act whether the energy performance certificate has been presented to the buyer.
In its absence, the notary has a duty to instruct the seller of the fine for failing to fulfil that obligation, for which there is a penalty for a fine of up to several one thousand Gold.
Cost of energy certificates
At the time of the amendment, the cost of energy certificates started with an amount of around 200 PLN in relation to housing, 500 PLN for single-family houses and for multi-family homes approximately 1,000 PLN.
However, as of January 2023, when this amendment enters into force, the cost of obtaining an energy certificate may increase significantly, so that prior obtaining an energy certificate may prove profitable.
The validity of the energy performance certificate shall be equal to 10 years from the date of its issue, but it expires in the case of thermal refurbishment or other modernisation works. It is important that the energy performance certificates obtained prior to the entry into force of the amendment remain in force.
It is worth noting that, in the near future, mechanisms may be introduced for notaries to keep records of sellers who failed to comply with the obligation to provide the buyer with an energy performance certificate. Such records could be used to initiate proceedings in cases of infringement against the sellers.
Author: Maksymilian Kulczycki
The author is a graduate of the Kozminski Academy in the field of Law and Finance and Accounting. From 2022 Associated with Russel Bedford Poland. In 2018 He completed his bar application at the District Bar Council in Warsaw. In 2019 obtained a positive result from the bar exam. His professional interests include the law of commercial companies, in particular mergers and acquisitions, conversions and tax law, in particular corporate income tax.