Energy label C requirement for offices: points of attention for landlords

We have written about the energy label requirement for office buildings on several occasions. Since 1 January 2023, every office building with a surface area greater than 100m² must have at least an energy label C. In mid-2023, a large number of office buildings did not yet comply with this requirement. At the end of August 2023, it appeared that the first building owners had been notified by the enforcement service. For landlords of office buildings, this is not a theoretical environmental measure, but a rule with direct consequences for lettability, value and risks in the rental agreement. The essence is a prohibition on use: without at least label C, use as an office is in principle not permitted.

Energy label C requirement

In short:

• Since 1 January 2023, an office may no longer be used as an office if the building has an energy label worse than C (i.e. label D to G) or no valid energy label at all.
• The building must have at least energy label C (C, B or A is permitted).

The requirement generally applies to office buildings with a usable floor space of more than 100m². There are a few important exceptions, including for listed buildings or offices that are part of another main function (e.g. an office at a factory, where the office function accounts for less than 50% of the total area). Whether the obligation applies to your property sometimes requires a technical and legal assessment (function, usable floor space, listed building status). Have this checked thoroughly in advance, especially in the case of (re)development and major renovations.

The energy label obligation in relation to the lease agreement

The Energy Label C obligation is governed by public law (towards the government), but has a clear impact on the private law relationship between landlord and tenant:

• If the property cannot be used (lawfully) as an office, the agreed use will come under pressure.
• This can lead to discussions about defects, rent reduction, liability and even termination.

Landlords of office buildings must therefore

Ensure that they have an up-to-date energy label for every office building that falls under the obligation. It is advisable to carry out (or have carried out) a technical quick scan to assess what measures are necessary to achieve or maintain at least label C.

In addition, it is very important to involve tenants in planned measures at an early stage in order to create support. It is even more important to include legal safeguards in the lease agreement with your tenants, with specific clauses on energy labels and energy performance. The question of who bears the costs of achieving a particular energy label is crucial.

Although the widely used ROZ models provide an important basis for such provisions, customisation is necessary. Clauses about the energy label, cost allocation, access for work on the rented property and penalty provisions must be included.

Advice

There is currently so much happening in the field of energy transition that careful consideration must be given to this when entering into and renewing tenancy agreements. These are natural moments at which such agreements can be included in the negotiations. Do you have questions about sustainability in tenancy law or do you have other legal questions about tenancy law? Our specialised lawyers will be happy to assist you.