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Poland

Green lease law and regulation in Poland

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 have all the buildings 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.)?
    5. a. Can the landlord push on the operating costs (mainly for electricity, water, heating) to the tenant following consumption or does that need to be established by the lease? Is there a distinction drawn between different types of buildings (e.g. residential, office, commercial, etc.)?
    6. 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.)?
    7. 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.)?
    8. 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.
    9. 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.
  2. 3. Allocation of costs; incentives to improve sustainability of buildings or its use.
Poland

1. Issues regarding the building itself

a. Requirements under public building law regarding energy efficiency.

A building, together with its associated facilities, must be designed and constructed taking into account its projected time of use in the manner prescribed in applicable provisions of law, including technical building regulations, and in accordance with building expertise and know-how, and so as to ensure that the building meets energy performance requirements and rational consumption of energy (Article 5.1.1.f of the Polish Building Code).

The technical building regulations concerning energy efficiency and thermal isolation are contained in Chapter 10 of the Ordinance by the Minister of Infrastructure dated 12 April 2002.

When a building, apartment or unit designed for separate use in a block is sold, an energy performance certificate must be given by the owner to the prospective buyer. An appropriate energy performance certificate must be made available to any prospective tenant. In both cases the document cannot be issued by the owner of the building, apartment or unit. Certificates for residential premises may be drawn on the basis of the certificate for the building with common heating system or on the assessment of another representative apartment in the same block (Article 5.4-5.5b of the Polish Building Code). 

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

Energy efficiency standards apply to new buildings (and must be met during design and construction phase). Changes in energy efficiency requirements usually do not apply to existing buildings.

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

The obligation to provide an energy performance certificate when selling or leasing a building or apartment does not attract any sanctions and does not affect the validity of the sale or lease. The consequences of breaching the law by failing to provide or make available the energy performance certificate is uncertain under current regulations. If an energy performance certificate has been provided upon the sale or lease of a building or premises but contains false information regarding the amount of energy, this constitutes a physical defect under the provisions of the Civil Code in relation to the statutory warranty for faults. The purchaser/tenant would be entitled to rescind the agreement or to claim a price/rent reduction.

Very few buildings in Poland are certified, though a number of projects are advertised as aiming to obtain LEED or BREEAM certification. Interest in green building certification is certainly growing. Once obtained, certificates are used to attract buyers and tenants.

The Polish Green Building Council has recently signed a memorandum of understanding with BRE to adapt the BREEAM system to the Polish market. The Council is also negotiating with USGBC to adapt the LEED system.

a. Can the landlord push on the operating costs (mainly for electricity, water, heating) to the tenant following consumption or does that need to be established by the lease? 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, regardless of the type of building. The landlord and the tenant have to agree upon recharging of operating costs in the lease contract. It is possible to agree that the operating costs are paid by the tenant directly to the suppliers.
In the case of office and commercial space, operating costs can be part of the service charge, which is usually paid monthly and reconciled once a year against the actual operating costs incurred by the landlord. The tenant is usually charged a share of the operating costs of the building in addition to the operating costs of the leased space.

In the case of residential premises, the landlord must provide a payment specification and justification for every increase of the operating costs.

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.)?

To perform improvement works during the lease period the landlord must ensure such right in the lease contract. Works required under mandatory provisions of law (eg. measures to improve the energy efficiency of a building which does not meet statutory standards) do not require the tenant’s consent.

The tenant cannot force the landlord to take energy efficiency measures but can terminate the contract if the condition of the building is dangerous to life or does not comply with the lease contract. However, in practice, lease contracts do not oblige the landlord to ensure energy efficiency to a specified level.

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 general, a landlord has the possibility to increase the rent. Rent increases can be used also to receive a reimbursement of the costs for the measures under b). However, in the case of office and commercial space the right to increase the rent is usually excluded in the lease contract. In the case of residential space, a rent increase is possible only if provided for in the lease contract. If a tenant does not accept the rent increase, the lease is terminated or the tenant can dispute the amount of the increase in court.

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.

No such standard exists in Poland.

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 Poland.

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

The allocation of costs between a landlord and a tenant should be agreed in the lease contract. Afterwards, it can be changed only if both parties agree. Incentives to improve sustainability of buildings or their use are not a practice in Poland.