1. Issues regarding the building itself
a. Requirements under public building law regarding energy efficiency
The owners of buildings are under a legal obligation to avoid the unnecessary waste of energy with regard to heating and cooling systems. Public authorities also provide financial support for certain measures of energy producing until 2012.
In exceptional cases, owners of new buildings are also under a legal obligation to use some renewable energy. The government agency has the right to control compliance with this obligation.
b. Do the regulations applicable under lit. a) only affect new buildings or do all the buildings have to be refitted?)
Even if the regulations mainly apply to new buildings, there are some obligations concerning existing buildings too. Thus, the owners of existing buildings are under an obligation to save energy in cases of change, further development or construction. They also need to retrofit their buildings subject to certain conditions.
Moreover, the German Federal States have the ability to enact a law concerning the obligation to use renewable energy.
c. Does the market pay any attention to energy certificates?
The energy certificate makes it possible to review the energy consumption of a building, so that the energy certificate could play an important role. This is because energy consumption can have an impact on the market price.
In any case, owners of buildings are under the obligation to provide an energy certificate if the purchaser or tenant demands it.
In 2012 owners of buildings will even have to provide the energy certificate without special request. Furthermore, the new statute will also establish an obligation for owners of public buildings to publish the energy certificate.
d. How popular is the certification of buildings (LEED, BREEAM, DGNB)?
On account of the rising market demand for green buildings and the rising “Corporate Social Responsibility”, certifications mainly according to LEED, BREEAM and DGNB are becoming more and more important. This is because they make the “greenness” of buildings visible, which also leads to more prestige.
The most popular certification seems to be the DGBN certification, which is being developed by the German Sustainable Building Council (DGNB) and this is followed by the LEED certification. Similar to the LEED and BREEAM certification, the DGNB certification system does appraise the new building itself as well as the life cycle of the building. This particularly records use by the tenant. Besides that, existing buildings can also be certificated.
2. Issues regarding the use of the building
a. Does is the landlord obliged to charge operating costs (mainly for electricity, water, heating) in line with consumption or does this need to be stipulated in the lease contract? Is there a distinction drawn between different types of buildings (e.g. residential, office, commercial, etc.)?
In compliance with tenancy laws the landlord of a residential building has the obligation to charge the operating costs according to the tenant’s consumption. By contrast, landlords of commercial properties do not have the obligation to do so, except with regard to the heating supply. In this case, the landlord of commercial property also has to calculate the heating cost from 50 to 70% according to consumption, and from 30 to 50% according to the area (i.e. square metres).
b. Does a landlord have the right to perform construction measures to improve the energy-efficiency of a building (also against the will of the tenant). Is there a distinction drawn between different types of buildings (e.g. residential, office, commercial etc.)?
According to tenancy laws the landlord has the right to perform construction measures even against the will of the tenant. In this respect, the tenant has to tolerate every energy-efficient measure. This applies to residential tenancy as well as to commercial tenancy. But this obligatory tolerance does not apply if the energy-efficiency measure will cause the tenant or his business undue hardship.
c. Does a landlord have the right to receive reimbursement of the costs for the measures under lit. b)? Is there a distinction drawn between different types of buildings (e.g. residential, office, commercial, etc.)?
Unlike commercial tenancies, the landlord of a residential tenancy has the right to charge the costs by increasing the rent. Therefore the obligation to bear the cost does not apply to the tenant of a commercial lease.
d. If the respective rights mention in b) and c) do not exist by statute, but need to be stipulated in thelease contract: does a standard for such regulations exist (and what is its content)? Please give examples of typical regulations.
Due to the fact that the commercial landlord has no legal right to charge the tenant for the costs, the landlord has to regulate this by the lease contract. However, there are neither standards nor templates for any such regulations.
e. Which other obligations regarding sustainability (building materials, energy efficiency, waste management, etc.) exist? If they need to be imposed by the lease contract: does a standard for such regulations exist (and what is its content)? Please give examples of typical regulations.
Obligations such as not using polluting building or cleaning materials, encouraging waste separation and the use of renewable energy can be regulated by lease contract as it motivates the lessee to use renewable energy. However, there are no standards for such regulations.
3. Allocation of costs; incentives to improve sustainability of buildings or their use
As set out under 2 c) the landlord of a residential building can allocate the costs caused by improving sustainability to the tenant.
In the case of commercial tenancies allocation can only be arranged with the tenant by mutual agreement and this arrangement applies to the whole term of the lease.
The incentives to improve sustainability of a building or its use is based predominately on the fact that additional costs will be minimized, and also the fact, that “green behaviour” is held in high esteem, so it will increase the reputation of both landlord and tenant.