The energy certificate is now mandatory for renting a house to tourists and comes with penalties.

The royal decree that includes this change came into force on 2 June and the Autonomous Regions can now impose fines.
At the beginning of the month, a royal decree on the certification of energy efficiency (CEE) of buildings came into force, which could be an earthquake for the holiday rental market.

On 1 June, Royal Decree 390/2021, which approves the basic procedure for the certification of the energy efficiency of buildings, was published in the Official State Gazette (BOE), making it compulsory to have the energy certificate of the property in order to rent it out to tourists.

The INE estimates that there are currently around 295,000 holiday homes in Spain and, according to sources from the Ministry for Ecological Transition and the Demographic Challenge explained to idealista/news, since 2 June, when the regulation came into force, all owners are obliged to advertise their holiday rental property with the energy certificate and to include it in rental contracts, and also in the case of sale. The autonomous communities will be in charge of registering the certificates, supervising compliance with the regulations and, if necessary, imposing the corresponding financial penalties.

The regulation establishes a penalty system with amounts ranging from 300 to 6,000 euros, depending on the infringement committed. Specifically, there are three levels: in the case of minor infringements, the fines are between 300 and 600 euros; while in the case of serious infringements, the sanction will be between 601 and 1,000 euros. In the case of very serious infringements, the fine will be between 1,001 and 6,000 euros. In other words, the amounts that apply in the case of the sale or rental of a habitual residence or second homes are maintained.

What can cause a penalty
According to Royal Legislative Decree 7/2015, these are the situations in the field of energy certification of buildings that fall within each case:

Very serious infringements, with fines of 1,001 to 6,000 euros.
Falsifying information in the issuing or registration of energy performance certificates.
Acting as a certifying technician without meeting the legal requirements to do so.
Acting as an independent agent authorised to control the certification of the energy efficiency of buildings without having the appropriate authorisation granted by the competent body.
Advertising, in the sale or rental of buildings or parts of buildings, an energy efficiency rating that is not backed by a duly registered certificate in force.
Likewise, the serious infringements foreseen in section 4 (serious infringements) will be very serious infringements, when during the three years prior to their commission a firm sanction has been imposed on the infringer for the same type of infringement.
Serious infringements, with fines of EUR 601 to 1 000
Failure to comply with the conditions established in the calculation methodology of the basic procedure for the certification of the energy efficiency of buildings.
Failure to comply with the obligation to submit the energy performance certificate to the competent body of the Autonomous Community for energy certification where the building is located, for registration.
Failure to include the project energy efficiency certificate in the building's execution project.
Displaying a label that does not correspond to the energy efficiency certificate validly issued, registered and in force.
Selling or renting a property without the seller or lessor providing the buyer or lessee with a valid, registered and valid energy efficiency certificate.
Likewise, the minor infringements foreseen in section 5 (minor infringements) will be serious infringements, when during the year prior to their commission a firm sanction has been imposed on the offender for the same type of infringement.
Minor infringements, with fines of between 300 and 600 euros
Advertising the sale or rental of buildings or units of buildings that must have an energy efficiency certificate without mentioning their energy efficiency rating.
Failure to display the energy efficiency label in cases where it is mandatory.
Issuing energy performance certificates that do not include the minimum information required.
Failure to comply with the obligations to renew or update energy performance certificates.
Failure to include the energy performance certificate of the completed building in the Building Book.
Displaying the energy efficiency label without the legally established minimum format and content.
Publishing the rating obtained in the energy efficiency certification of the project, when the energy efficiency certificate of the finished building is already available.
Any actions or omissions that violate the provisions of the energy efficiency certification when they are not classified as serious or very serious infringements.

Apart from all the above, the regulations add that "in cases where the benefit obtained by the offender from the commission of the infringement is greater than the amount of the penalties in each case indicated in the preceding paragraph, the penalty shall be imposed for an amount equivalent to the benefit thus obtained. The penalty shall be graded taking into account the damage caused, the unjustly obtained enrichment and the concurrence of intentionality or repetition.

Sanctions can be immediate (even for platforms).
The Royal Decree 390/2021 does not include any gap in the implementation of the obligation. Therefore, the Ministry confesses, "the autonomous communities could already impose fines". And the sanctioning regime will not only apply to owners, but also to platforms specialising in holiday rentals.

In their case, from the portfolio led by Teresa Ribera they explain that "the usual thing would be to incur in a minor offence for not advertising the energy certificate of a home, because the regulations specifically oblige them to do so".

Article 17.3 states that "any natural or legal person who publishes or allows the publication of information on the sale or rental of a building or part thereof, whether in real estate agencies, billboards, websites, real estate portals, catalogues, press or similar, shall be obliged to include information on its energy efficiency rating, in accordance with the provisions of the corresponding recognised document".

Sanctions can be imposed ex officio (i.e. by officials of the Ministry of Energy or Industry or the specific energy agency that may have an autonomous region) or through a complaint from a citizen (e.g. a tenant who detects that the energy certificate is not included in the lease or any other consumer).

However, the Ministry also states that "the ultimate objective of both the government and the autonomous communities is not to sanction. The first thing is to warn, inform and make people aware of the regulations in order to promote the improvement of buildings in terms of energy efficiency (knowing how much is consumed and how much can be saved, improving the comfort of the home, renting a more comfortable flat at a lower cost...)".

Almudena Ucha, director of Rentalia (idealista's holiday platform) explains that "the mandatory requirement for holiday rental properties to have an Energy Certificate is a cold shower for the sector, which for the second consecutive year is facing a very limited high season and conditioned by the Covid-19. Especially because a measure of this impact should have a reasonable period of time for the supply to adapt to this new requirement, something that has not been contemplated".

In which cases is it compulsory and what are the exemptions?
The changes included in this Royal Decree not only apply to holiday homes (considered private residential properties), but also extend to others such as hotels, hostels, guest houses, motels, buildings for tourist rental, student residences, residences for the elderly...; categories that are included in public residential properties, as long as they exceed 500 m2 of total useful surface area.

They also include, among others, penitentiary buildings, buildings for sports use (gymnasiums, sports centres...), places of worship, buildings for the transport of people (airports, stations...), commercial buildings (shops, supermarkets, department stores, shopping centres and similar), catering buildings (cafés, bars, restaurants...) or cultural buildings (theatres, cinemas, museums, auditoriums, congress centres, exhibition halls, libraries...).

In these cases, and as long as they have more than 500 m2 of total useful surface area, the certification applies to the entire property and, as established in the third final provision of the regulation, they have a period of 12 months to obtain the certificate, even if they are not sold or rented out. In other words, they have until the beginning of June 2022.

In the case of exemptions, the regulation includes, for example, buildings officially protected for their architectural or historical value, temporary buildings with an expected period of use of two years or less, or industrial, defence and non-residential agricultural buildings. Also exempt are free-standing buildings (not in contact with other properties), whose useful surface area is less than 50 m2. This exemption applies to all dwellings, including holiday homes.

However, as Juan López-Asiain, head of the technical office of the General Council of Technical Architecture (CGATE), recalls, "unlike the 2013 regulation, which excluded from the obligation to have an energy certificate those parts of existing residential buildings whose use was less than four months a year, the new basic procedure for energy efficiency certification does not exclude homes with this time limit of use, among which are second homes and holiday homes",

How to obtain the certificate, how long it lasts and how much it costs
The first thing to remember is that it is a document that includes the energy efficiency and consumption rating of a building or part of a building (such as a home), as well as information on the procedure, a description of its energy characteristics and recommendations for feasible improvements.

According to the Ministry for Ecological Transition and Demographic Challenge, "it is a fundamental tool when it comes to knowing the energy performance of a building, as it gathers information on its energy consumption and CO2 emissions. With this information, the owner or user of the property can evaluate and compare energy efficiency and the integration of renewable energies, as well as make decisions that allow energy savings in buildings. In addition, energy certification makes it possible to highlight this energy performance and potential savings, as the decision to rent or sell the property will also be influenced by this information".

The rating must be registered with an official body of the corresponding autonomous community in order to have the status of a certificate. The energy certificate must be issued by a competent technician freely chosen by the owner who holds any academic and professional qualification for the drafting of projects, the management of works or the management of the execution of building works. That is, architects, technical architects, engineers and technical engineers.

In this sense, the head of the technical office of the CGATE reminds that "as happens when you want to sell or rent a property or premises, the procedure for the property to obtain the energy certificate of the tourist flat before renting or transferring it would be to contact a competent technician with qualifying professions in the field of building to carry out this document".

And once obtained, it must be registered with the official body of the autonomous community where the property is located in order for it to have the status of a certificate.

It is valid for 10 years and, after this period, the owner will be responsible for renewing or updating it in accordance with what is established by the competent regional body. As for the price, this is not regulated by law, but is based on supply and demand, and is influenced by factors such as the size of the property or the supply of certifying professionals.

According to the idealista calculator, for a property of around 90 m2 the cost of the certificate is just under 100 euros, excluding VAT. And in some areas of Spain, fees must also be paid. Subsequently, the certificate must be registered with the corresponding body, which takes between 30 and 60 days on average.

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