2008-12-12: Thursday, 1 January 2009, is fast approaching, and any person offering an existing house for sale or rent around this time is being bombarded by all sorts of ‘marketing blurbs’ in the different media about having to produce a BER Certificate.
Don’t be worried.
When in doubt, go directly to the actual legislation … and in this case, it is Statutory Instrument No.666 of 2006: European Communities (Energy Performance of Buildings) Regulations 2006.
Legislation cannot be retrospective … so, if a house has already been offered for sale or rent before 1 January 2009, no BER Certificate is required.
And … if you care to look at the text on one of these ‘certificates’ (in the top right-hand corner), you will notice the following …
” The Building Energy Rating (BER) is an indication of the energy performance of this dwelling.”
However, unless long wave infra-red thermography has been used under proper conditions, by a competent person, as part of a comprehensive energy survey of the house … and thermal images were taken … and other accurate and precise information was gathered about the actual energy performance of this specific house … the statement in the BER Certificate is misleading.
There is only a very tenuous relationship between a BER Certificate and the ‘real’ energy performance of a specific building.
What’s more …. Energy Ireland (SEI) knows full well that this is the case.
In addition, as if that were not bad enough …. Energy Ireland (SEI) have been sitting on a Report for approximately 3 years which indicates that there is a general non-compliance rate of 70% (that’s right folks !) with the minimal – some might say “abysmal” – energy performance requirements, which apply to new houses, in Part L of the Irish Building Regulations.
And …. because everybody can see that our national system of building/technical control in Ireland is entirely inadequate, that figure of 70% non-compliance may be an underestimate.
Many, many months ago, I asked for a copy of this SEI Report.
I am still waiting.
[2009-01-12 Who did I ask ? Mr. Brendan Halligan, SEI Board Chairperson & Mr. Kevin O’Rourke, SEI Head of Built Environment !]
So what does this mean? The BER cert is useless because of the process in place to establish if a house is compliant?
Not exactly ‘useless’.
As already discussed in the original post … Building Energy Rating (BER) Certification is a paper exercise. There is only a very tenuous relationship between a BER Certificate and the ‘real’ energy performance of a specific building.
But, there is more you should know ….
Chevron Training (www.chevrontraining.ie), in County Wexford, insist on regularly spamming our practice with e-mails. We have protested, but they won’t listen.
A recent e-mail (2008-12-16) from Chevron, signed by Dave Collins, begins as follows:
” Dear RIAI Architect,
In these recessionary times few opportunities exist and very few markets are growing. Building Energy Rating (BER) is rare opportunity, up to 2000 assessors are required to service this growth market, and presently there are only 945 SEI registered assessors to meet this demand.
From the 1st of January 2009 all dwellings (houses) offered for sale, rent, or lease require a BER rating, In excess of 150,000 buildings will require a BER certificate every year. The BER assessment market will be worth in excess of €72 million per year.”
Guess who will be paying all of this money ? That’s right … people like you, Tom.
And for what ?
I, too have had a look at the legislation and it appears to me that once most certainly does need a BER when selling a property, even if said property has been on the market for many months before January 2009.
“A person who offers for sale or letting (whether in writing or otherwise)—
(a) a building of a class referred to in subparagraph (a) or (b) of paragraph (4)
construction of which commences on or after such date specified for that class
in the said subparagraphs, hereinafter referred to as a ‘new building’, or
(b) on or after 1 January 2009, a building that is in existence on or before 1
and any agent acting on behalf of such person in connection with such offering, shall
produce a printed copy of the BER certificate and advisory report in relation to the
building to any person expressing an interest in purchasing or taking a letting of the
building and, on demand, to the building control authority in whose functional area the
building is situated”
With respect, I would invite you to carefully read … and quote again, if you wish … all of the relevant text in the legislation.
The later Sections in Part 3 of the Statutory Instrument [S.I. 666 of 2006 – European Communities (Energy Performance of Buildings) Regulations] cover, in detail, the phased introduction of the legislation for different classes of buildings from specific dates, e.g. a BER Certificate will be required for a new building, other than a dwelling, where construction has commenced on or after 1 July 2008.
Similarly, some line in the sand must be drawn for existing houses which are on sale.
Think, for a moment, about an old shack which has been on the market for the last five years … no way, José !
If it had really been intended to require a BER Certificate for existing dwellings which had been offered for sale prior to 1 January 2009, the legislation might have stated … ‘buildings of any class in existence at 1 January 2009 being offered for sale or letting on or after 1 January 2009’.
So does this mean that someone who has been renting their property in yearly leases for example will need a BER rating the next time they rent the property out.
OR does it mean that because they have already been renting the property to various people for 10 years that they are exempt from BER ratings.
The legislation is far from being perfect … but definitely, your first interpretation is correct. Going directly to Statutory Instrument 666 of 2006, the key phrase is ‘offers/offered for letting on or after 1 January 2009’. You are offering the property for letting every year.
Well before the lease is renewed in 2009, you will need to have a BER Assessment carried out by a BER Assessor. As defined in the legislation, this person must be registered by the Issuing Authority, i.e. Energy Ireland (SEI), ‘for a designated class or classes of building, for the purpose of BER assessment of such class or classes of building’. Please note well – do not accept any fudge, either by SEI or an Assessor, concerning the proper designation of building type !
For practical reasons, you will then need to obtain a hardcopy version of the actual BER Certificate, with its accompanying BER Advisory Report.
This is important because, at the very least, there should be a reference to the BER Certificate in the New 2009 Lease Agreement. Good practice would suggest that the BER Certificate and the Full Advisory Report should be appended to the Agreement. And … if there are any recommendations with regard to improving the energy performance of the building … this probably will have some impact on both the New Rent and the contents of the New Lease Agreement.
However … the Irish legislation Statutory Instrument No.666 of 2006: European Communities (Energy Performance of Buildings) Regulations is deeply flawed and designed to be ineffective. But, it is a cute money-grubbing exercise.
In my opinion …
– a BER Certificate is not valid unless it is accompanied by the relevant Full BER Advisory Report ;
– a BER Advisory Report should contain a proper statement of measurement and calculation uncertainty ;
– a BER Register should be held and maintained by the Building Control Authority (which is independent and tasked with inspection) in each Local Authority around the country … not by SEI.
Let me assure readers that our Organization does not intend to become involved in BER Assessment … as currently established and operated.
Thanks for the response CJ.
Speaking to others, apparently a solicitor can’t sign off a “sale agreed” in 2009 without a BER cert, but according to your interpretation, this is not the case.
Does anyone really know what is right and wrong?
Normally, comments which are not signed are not approved for publication. In this case, however, the question is both valid and interesting.
With respect … instead of speaking to others, please get a copy of the legislation and read it for yourself. Statutory Instrument No.666 of 2006: European Communities (Energy Performance of Buildings) Regulations can be downloaded from the Internet … for free ! This is the one sure way of beginning to find out who is ‘really right or wrong’.
It is normal, when new legislation is being introduced, for there to be some confusion among all parties involved – including even Building Control Authorities. The legislation is being tested through practice … but eventually, detailed guidelines with regard to its operation will evolve.
Documents that I will wish to examine closely are the first batch of BER Advisory Reports to be issued. Please refer to my answer to Darren yesterday.
With regard to what solicitors will or will not do during 2009 … because of the sharp property downturn in 2008, many houses which were offered for sale well before 1 January 2009 may still be on the market next summer and autumn. If this is the case – and you should have genuine, supporting documentation from the auctioneer – solicitors must complete the sale without a BER Certificate.
However, just recently, I came across a most annoying case where the solicitor for the buyer, supported by the solicitor for the seller, completely ignored and totally disregarded a very important piece of Irish legislation, i.e. the 2000 Electronic Commerce Act (Number 27 of 2000). Each insisted on a hardcopy version of a document. Nothing else was acceptable.
Did I try to persuade ? Yes. Was I successful ? No.
Did I waste my time complaining to the Law Society ? You must be joking !!
I’ve been reading other forums/blogs – a lot are saying that after calling SEI, they have been told what Mr. Anonymous is saying.
So could SEI be peddling the wrong message too just to get business?
IF this is actually happening, and that is a big ‘IF’ … and SEI are attempting to push an incorrect interpretation of the legislation out into the marketplace … then, definitely.
I continue to be concerned that Energy Ireland (SEI) has been given the role of ‘Issuing Authority’ in Statutory Instrument No.666 of 2006: European Communities (Energy Performance of Buildings) Regulations.
Your article about BER certs is spot on. they are a waste of time. however they are a legal requirement and people must have them. As usual SEI get everything wrong. they recommended a large number of assessors be trained and the companies that carry out the training make a fortune. the poor assessor is left trying to eck out a living. just last week i placed adds for thermal imaging of houses at a very low price to try to get some interest. only 4 people phoned me to carry out a survey and this was at €100 (yes i know i am mad). does this indicate that homeowners don’t care or don’t understand what thermal imaging is about. however when they see the results they are all suitably impressed. any good BER assessor should also carry out a thermal image to backup his report, but if the homeowner is presented with a bill for 500-600 plus euro then they would have a heart attack. after all they are only interested in getting the lowest possible cost for the BER certificate.
Let’s hope this election will rid this country of Quangos !