1. Issues regarding the building itself
a. Requirements under public building law regarding energy efficiency.
Article 13 and 15 Housing Act (in Dutch: Woningwet): the owner of an existing building is obliged to carry out energy efficiency facilities, if the local government considers this necessary. It can even enforce these facilities.
Article 2.15 Activity Decree (in Dutch: Activiteitenbesluit): the operator of an establishment is obliged to take cost-effective energy saving measures.
Section 5.3 Buildings Decree (in Dutch: Bouwbesluit): new buildings require a certain energy performance. Builders have to fulfil this requirement.
b. Do the regulations applicable under a) only affect new buildings or do all the buildings have to be provided with energy efficiency facilities?
- All buildings have to meet certain energy efficiency standards.
- The regulations mentioned in the Housing Act are applicable on existing buildings.
- The regulations mentioned in the Building Decree apply to new buildings.
- The regulations mentioned in the Activity Decree apply to new and existing buildings.
c. Does the market pay any attention to energy certificates?
No, not seriously. Although the owners of buildings are obliged to provide the purchaser or tenant with an energy certificate when selling or leasing the building, this obligation is not enforceable. In the future, on 9 January 2013 at the latest, there will be legal sanctions to enforce the delivery of the energy certificate. One of the sanctions will be that the tenant does not have to pay rent if the energy certificate is not handed over.
d. How popular is certification of buildings (LEED, BREEAM, etc.)?
Certification of buildings becomes more and more popular. The Dutch Green Building Council (DGBC), supported by the Building Research Foundation (in Dutch: Stichting Bouw Research) (SBR) has been working on a new real estate certification system since September 2009, BREEAM-NL. This is a Dutch version of the international BREEAM standard, which was originally developed in England. Sustainability is measured not only on the basis of the building itself, but also on the characteristics of the building’s environment and its use by the tenant. This integrated approach to sustainability is based on nine main criteria: management, health, energy, transport, water, equipment, waste, land use and ecology and pollution. The BREEAM-NL standard applies exclusively to new constructed buildings. Certification has been possible since April 2010. In April 2011, 1 million square metres of floor area was registered for certification.
Since 8 June 2011 a certification method for existing buildings became available, the BREEAM-IN USE-NL.
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.)?
A landlord is not obliged to charge operating costs (service charges), regardless of the type of building. The landlord and the tenant have to agree upon the service charges in the lease contract.
In the case of a lease of an office or industrial space they have to agree upon which services the landlord will provide and what price the tenant has to pay. Generally the tenant pays the service charges in advance and each year this amount will be set off with the effective costs.
In the case of residential premises the rules regarding the service charges are prescribed by (mandatory) law. According to the law the service charges have to be reasonable. The landlord is obliged to provide a statement of the service charges each year.
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 two situations a landlord has the right to perform construction measures to improve the energy efficiency of a building, even without the cooperation of the tenant. Firstly, where the landlord carries out “urgent repairs” (energy efficiency measures prescribed by the government are “urgent repairs”). Secondly, where the landlord presents a reasonable “renovation” proposal and the tenant or, in the case of a building complex, a majority of the tenants accepts this proposal.
In the case of residential premises a tenant can request the court to force the landlord to take the following energy efficiency measures: thermal isolation of external dividing constructions, thermal isolation of the dividing construction of the crawl space and install a new central heating boiler with 80% output in case the old boiler is at least 10 years old. The court can only refuse the request of the tenant if the tenant is not prepared to pay a rent increase (article 7:243 of the Dutch Civil Code). A tenant of business premises cannot ask the court to enforce these energy efficiency measures. In the case of business premises only the government can enforce these measures (article 7:305 Dutch Civil Code).
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.)?
If the landlord has carried out the energy efficiency measures mentioned under b) it has the possibility to charge the costs by increasing the rent. If a tenant does not accept the rent increase the court or the rent assessment committee (in case of residential premises) can determine the increase.
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.
In the case of business accommodation other then office space it is only possible to increase the rent in the cases prescribed by law (thermal isolation of external dividing constructions, thermal isolation of the dividing construction with the crawl space and install a new central heating boiler with 80% output in case the old boiler is at least 10 years old) (7:305 Dutch Civil Code).
In the case of residential premises it is only possible to increase the rent in the cases prescribed by law (thermal isolation of external dividing constructions, thermal isolation of the dividing construction with the crawl space and a central heating boiler with 80% output in case the old boiler is at least 10 years old) (7:243 Dutch Civil Code) or in case of a renovation proposal.
In the case of office space it is possible to establish a reimbursement regarding energy efficiency measures in the contract. The standard office accommodation contract of the Council for Real Estate Matters (‘Raad voor Onroerende Zaken’) does not have 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 agreement: does a standard for such regulations exist (and what is its content)? Please give examples of typical regulations.
There is no standard available in the Netherlands.
3. Allocation of costs; incentives to improve sustainability of buildings or its use.
It is best to arrange the allocation of costs between landlord and tenant at the start of the lease contract. Change of the lease contract is only possibly if both parties agree (except in the case mentioned at 2.c). Allocation of costs and incentives to improve sustainability of buildings or its use can be regulated in a “green paragraph” which is part of the contract.