Lease null and void if landlord never produced BER cert?

oceanclub

Interesting thread on irishlandlords.ie:

http://www.irishlandlord.com/forum/showthread.php?t=1593

A BER must be furnished to a potential purchaser/tenant at the time that a property is offered for sale or rent and therefore before the Contract for Sale or Agreement for Lease/Lease is executed and exchanged.

It is also worth noting that, unlike various other requirements in a property transaction, there is no provision available which would enable a prospective purchaser/tenant to waive the obligation to be provided with a BER, nor is there a requirement that such a purchaser/tenant seek or obtain a BER. The obligation is solely on the vendor/landlord to provide one. http://www.idevelop.ie/ienergy/berexplained.php

Not sure if anyone tested it.

Other landlords in the thread asked for people to delete this info, but then it ended up on broadsheet.it - oops:

http://www.broadsheet.ie/2011/06/03/irish-landlords-they-care/

P.

January

Love it... and all of the properties I've rented in have never furnished a BER cert... this could have come in handy last year when I was trying to get out of my mouldy house...

KERSPLAT!

I have just signed a lease and never even thought of a BER and I worked in construction for years I wonder how many people will be using this as a get out clause???

Cheshire Cat

Love the way the landlords give out to the OP for informing tenants about their rights and giving them an excuse to break their lease -all this righteous indignation is just hilarious :rolleyes:

Macha

Under the regulations, a landlord who does not provide a BER at the point of offer has committed an offence (This obviously excludes exempted properties).

It's up the relevant Building Authority to prosecute for the offence and they can face a fine of up to €5,000 and/or 3 month prison sentence.

I don't see anything suggesting that the lease contract is not valid but I'm sure it could easily be argued. Then again, the PRTB are quite useless at resolving these sorts of issues.

The source EU Directive (EPBD) has been recast & should be written into Irish law soon. It would be an idea to include the idea that the lease is not valid without a BER, where required.

odds_on

Macha wrote: »

Under the regulations, a landlord who does not provide a BER at the point of offer has committed an offence (This obviously excludes exempted properties).

It's up the relevant Building Authority to prosecute for the offence and they can face a fine of up to €5,000 and/or 3 month prison sentence.

I don't see anything suggesting that the lease contract is not valid but I'm sure it could easily be argued. Then again, the PRTB are quite useless at resolving these sorts of issues.

The source EU Directive (EPBD) has been recast & should be written into Irish law soon. It would be an idea to include the idea that the lease is not valid without a BER, where required.

From the Irish Law Society's circular "BER law_society_circular.pdf" (google it as I did):
It is the view of the committee that failure to provide a BER certificate before a contract/letting agreement is signed cannot be remedied by a subsequent provision of such certificate unless the purchaser is simultaneously given the opportunity to back out of such contract. The clear import of the Regulations is to ensure that prospective purchasers have the relevant information concerning energy usage of a building they are contemplating buying or leasing. That objective cannot be fulfilled if the purchaser is bound to a contract in advance of knowing the information.

Victor

odds_on wrote: »

From the Irish Law Society's circular "BER law_society_circular.pdf" (google it as I did):
It is the view of the committee that failure to provide a BER certificate before a contract/letting agreement is signed cannot be remedied by a subsequent provision of such certificate unless the purchaser is simultaneously given the opportunity to back out of such contract. The clear import of the Regulations is to ensure that prospective purchasers have the relevant information concerning energy usage of a building they are contemplating buying or leasing. That objective cannot be fulfilled if the purchaser is bound to a contract in advance of knowing the information.

http://www.ber-certs.ie/law_society_circular.pdf

I'll have a read over it, but while I'm not sure if it would void a contract, it certainly seems to taint it.

odds_on

What is needed is a test case but this would, I think have to go through the PRTB and I don't know if they are sufficiently qualified to have a decision which would set a legal precedent.

As the extract says: "It is the view of the committee ....". Therefore, it is not 100% certain but it is their view or belief.

KERSPLAT!

Is there any update on this? Is it true that if your not given a BER cert the contract can be void?

Victor

IPAM wrote: »

Is there any update on this? Is it true that if your not given a BER cert the contract can be void?

There is a big difference between "can be void" and "is void".

You need to get proper advice. Threshold or a solicitor would be good. www.threshold.ie

BostonB

January wrote: »

Love it... and all of the properties I've rented in have never furnished a BER cert... this could have come in handy last year when I was trying to get out of my mouldy house...

Maybe thats because there was no such thing as a BER until a year or two ago...

Maximilian

A similar thread came up in the Legal Discussion forum.

A failure to produce a BER is an offence only. Nowhere in the Regulations does it state that leases, deeds etc. are invalidated. You would use it as a 'loophole' at your own peril.

emy

Apology resurrecting this thread, just to keep up with the same subject...

I have recently contacted the SEAI department in regard with BER Certificate on our property, no BER Certificate was ever issued (We are living on this property since 2017 in poor conditions). In winter time, in the kitchen is around 9 degrees with the heating on......

We had a dispute opened through RTB, the lack of the BER was one of the issue, although is compulsory, this was treated as none issue to be addressed by the adjudicators, she was not laughing, but was not far from it. It is one more SEAI useless department. It looks like a Landlord can not be enforced to have a BER Certificate prior renting/selling, or you need a good Solicitor to raise this issue.

There was not help for any of Dublin City Councils or SEAI either.

Ray Palmer

https://www.boards.ie/discussion/comment/119292943#Comment_119292943

Did they uphold any of your complaints?

endofrainbow

Any reason why a rental property would be BER exempt?

Bass Reeves

https://www.boards.ie/discussion/comment/119294421#Comment_119294421

Of it's a Ber exempt property like a listed house. As leases have to be registered with the RTB and the RTB require a Ber cert I would have presumed that all leases registered had a Ber unless exempt.

AFAIK Hap requires a Ber as cwell

Claw Hammer

https://www.boards.ie/discussion/comment/119294460#Comment_119294460

The RTB doesn't require a BER cert to be produced on registration and doesn't entertain complaints about the lack of a BER cert. Maybe some tenant will go to the High Court about it and see what the courts make of it.

Bass Reeves

https://www.boards.ie/discussion/comment/119294499#Comment_119294499

They look for it on the registration form. So we are back to a quango either looking for information it's should not look for or not making sure all required information is supplied.

MakersMark

Given there's no effective penalty for a tenant walking away from a lease they signed, thus ehole thing is moot.