When is an energy performance certificate required?

Anybody who has bought or sold a property in Spain over the last few years will know that it is necessary to provide an energy performance certificate upon the completion of the sale of the property. The basic regulation of this requirement is made in Royal Decree 235/2013 which establishes, amongst others, the necessity of providing an energy performance certificate in the following cases: a) For new properties. b) For buildings or parts of existing buildings that are sold or rented out to a new tenant if they do not have a current certificate.

c) Buildings or parts of buildings of more than 250m2 of usable surface area used by the authorities and frequented habitually by the general public.

An express exception of the necessity of providing an energy performance certificate is also applicable in the following cases:

Provisional constructions which have a foreseeable use of two years or less.

Buildings or parts of detached buildings that haver a total usable surface area of less than 50m2.

Buildings that are acquired and which will be demolished or will be the subject of a major refurbishment.

Buildings or parts of existing buildings with a period of use of less than four months a year or during a limited period of the year and with a foreseeable energetic consumption of less than 25% of the amount which would be used during the entire year if the said circumstances are declared by the owner of the property by means of selfcertification.

However, what happens when for example two joint owners terminate their situation of coownership by means of the assignment of one coowners’ interest in the property to the other? The “buyer” in this case is already the owner of part of the property and is aware of the property’s energetic performance. Would it be necessary in this case for the certificate to be produced upon transfer of the share of ownership from one coowner to the other?

The General Directorate of Registrars and Notaries resolved a recent dispute arising from Land Registry’s refusal to register a transfer of a share of ownership of a jointly owned property due to the absence of a confirmation of the energy performance certificate having been provided to the buyer.

In the reasoning behind the final decision which upheld the appeal and considered that the deed should be registered, it was considered that in this case, in which it was evident that the 'buyer' of the share of ownership was not acting as a consumer, it would be potentially possible for him to renounce to his right to insist on receiving the certificate.

Article 6.2 of the Civil Code establishes that as a general rule one can voluntarily exclude the application of applicable law or renounce to rights established therein if the renouncement does not prejudice public order or the public interest, nor prejudices third parties.

In the legislation on the energy performance certificate there is no express prohibition of one being able to renounce to the right to receive the certificate and as the said certificate just provides information to the buyer of a property it is understood that one may renounce to the said information or exonerate the seller of the property from providing it.

With regard to the second requirement for the renouncement to be valid, that is that the renouncement does not prejudice third parties, the resolution reasoned that a future purchaser or tenant of the property would not be prejudiced by the previous owner’s renouncement to the energy performance certificate as his renouncement upon acquiring the property does not in any way prejudice the right of the future buyer or tenant of enforcing their right to receive the certificate when the property is eventually sold or rented.