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Spain

Green lease law and regulation in Spain

Table of contents
  1. 1. Issues regarding the building itself
    1. a. Requirements under public building law regarding energy efficiency.
    2. b. Do the regulations applicable under a) only affect new buildings or do all the buildings have to be provided with energy efficiency facilities?
    3. c. Does the market pay any attention to energy certificates?
    4. d. How popular is certification of buildings (LEED, BREEAM, etc.)?
  2. 2. Issues regarding the use of the building
    1. a. Does there exist an obligation of the landlord to charge operating costs (mainly for electricity, water, heating) following consumption or does that need to be established by the lease contract? Is there a distinction drawn between different types of buildings (e.g. residential, office, commercial, etc.)?
    2. b. Does a landlord have the right to perform construction measures to improve the energy efficiency of a building (also against the intention of the tenant). Is there a distinction drawn between different types of buildings (e.g. residential, office, commercial etc.)?
    3. c. Does a landlord have the right to receive a reimbursement of the costs for the measures under b)? Is there a distinction drawn between different types of buildings (e.g. residential, office, commercial, etc.)?
    4. d. If the respective rights mentioned in b) and c) do not exist by statute, but need to be established by the lease contract: Does a standard for such regulations exist (and what is its content)? Please give examples of typical regulations.
    5. e. Which other obligations regarding sustainability (building materials, energy efficiency, waste management etc.) exist? If they need to be imposed by the lease agreement: does a standard for such regulations exist (and what is its content)? Please give examples of typical regulations.
  3. 3. Allocation of costs; incentives to improve sustainability of buildings or its use.
Spain

1. Issues regarding the building itself

a. Requirements under public building law regarding energy efficiency.

The Energy Performance of Building Directive (“EPBD”) was transposed in Spain by means of three royal decrees:
Royal Decree approving the Technical Building Code (“CTE”), approved by the Council of Ministers on 17 March 2006;
Royal Decree on the Basic Procedure for Energy Performance Certification of new buildings, approved by the Council of Ministers on 17 January 2007. The regulation for existing buildings is pending approval as explained below; and
Royal Decree approving the review of the current Regulations for thermal installations in Buildings (“RITE”), which was approved by the Council of Ministers on 20 July 2007.

A fourth decree will be further added to the above, to legislate on the energy certification of existing buildings, and which will complete the transposition of the EPBD to the Spanish legal system. It is expected to be approved during 2011. Nevertheless, according to the current legislation, existing buildings must comply with the same minimum requirements as new ones, i.e when building rehabilitation, enlargement or renovation is carried out on a building with a useful area in excess of 1,000 square metres.

The format of the energy performance certificate for new buildings is published in Royal Decree 47/2007. It displays the annual primary consumption of energy of the building and, apart from the energy rating achieved, its CO² global emissions.

The energy rating scale in Spain ranges from A (very high performance, involving a high contribution of renewable energies in the building consumption) to G (which represents low performance).

b. Do the regulations applicable under a) only affect new buildings or do all the buildings have to be provided with energy efficiency facilities?

As explained above, the current regulation affects new buildings and certain building rehabilitation, enlargement or renovation of existing buildings. Nevertheless, a decree will be further approved to legislate on the energy certification of existing buildings. It is expected to be approved during 2011.

c. Does the market pay any attention to energy certificates?

No, not seriously.

The certification of buildings systems LEED, BREEAM, etc. are not popular in Spain.

2. Issues regarding the use of the building

a. Does there exist an obligation of the landlord to charge operating costs (mainly for electricity, water, heating) following consumption or does that need to be established by the lease contract? Is there a distinction drawn between different types of buildings (e.g. residential, office, commercial, etc.)?

According to Spanish Law 29/1994 on Leased Property, in the case of a residential lease, there is an obligation of the lessee to assume electricity, water and heating costs as established by the metre. In the event of a lease for a purpose other than a residential building (offices, commercial premises, etc.), this must be determined by the lease contract. Nevertheless, it is commonplace for the tenant to pay for electricity, water, etc. according to consumption.

b. Does a landlord have the right to perform construction measures to improve the energy efficiency of a building (also against the intention of the tenant). Is there a distinction drawn between different types of buildings (e.g. residential, office, commercial etc.)?

In the case of residential leases according to Spanish legislation, the landlord has the right to perform construction measures to improve the energy efficiency (including when this is against the intention of the tenant) which cannot reasonably be postponed until the termination of the lease contract. The landlord must inform the tenant about these improvement measures to be carried out, and the latter has the right to terminate the lease contract if the measures substantially affect the dwelling. A tenant who endures the works will have the right to a reduction of the rent proportionally to the part of the residential building affected by the works.

In the case of leases for a different purpose from that of a residential building (offices, commercial premises, etc.) according to Spanish legislation, the rules for residential leases shall be applicable (as explained above) unless otherwise established in the lease contract. Therefore, the parties are entitled to establish in the lease contract that the landlord cannot carry out any improvement measures, however in our experience, this is not common and the landlord has the right to carry out improvement works such as energy efficiency works.

c. Does a landlord have the right to receive a reimbursement of the costs for the measures under b)? Is there a distinction drawn between different types of buildings (e.g. residential, office, commercial, etc.)?

In the case of residential leases according to Spanish Law 29/1994 on Leased Property, the landlord has the right, unless otherwise agreed by the parties in the lease contract, to raise the rent with certain limits.

In the case of leases for a different purpose from that of a residential building (offices, commercial premises, etc.) according to Spanish Law 29/1994 on Leased Property, the rules for residential leases shall be applicable unless otherwise established in the contract.

d. If the respective rights mentioned in b) and c) do not exist by statute, but need to be established by the lease contract: Does a standard for such regulations exist (and what is its content)? Please give examples of typical regulations.

As explained above, these rights do exist.

e. Which other obligations regarding sustainability (building materials, energy efficiency, waste management etc.) exist? If they need to be imposed by the lease agreement: does a standard for such regulations exist (and what is its content)? Please give examples of typical regulations.

No such standard exists in Spain.

3. Allocation of costs; incentives to improve sustainability of buildings or its use.

Apart from the aforementioned, we consider that it is advisable that allocation of costs and incentives to improve sustainability of buildings or its use be regulated in an additional clause which is part of the contract.