Impact on both owners and lessees
Compliance with the obligations of the tertiary sector decree is the responsibility of both owners and lessees (articles L.174-1, R.174-22 and R.174-28 CCH), in a spirit of co-responsibility.
This is due to a convergence of interests: if the building is energy-efficient, its attractiveness is enhanced and costs are reduced.
Levers for improving energy performance :
– Energy-efficient renovation of the building itself.
– Installation of energy-efficient equipment.
– Building occupancy (operating methods and adapting occupant behavior).
Distribution of data transmission obligations on OPERAT :
Both the owner and the lessee can enter consumption data on OPERAT.
The parties must therefore define their respective obligations with regard to data transmission. The obligation to transmit data may be set out in the lease, and may be subject to contractual sanctions (penalties, formal notice, etc.).
Landlords and tenants must provide each other with the actual annual energy consumption of all the equipment and systems they operate.
An « assessment of compliance with the obligation » must be appended to the relevant lease contract, using the digital certificate generated annually by OPERAT. This will be linked to the lessor’s estimate of works, the DPE and the environmental appendix.
For the time being, there are no legal penalties for failure to comply with this annexation obligation. However, the penalties provided for under ordinary contract law could be applied (nullity of the contract for fraudulent concealment, proportional reduction in the rent, etc.).
Distribution of obligations to carry out energy performance work
These performance improvements will be referred to as « compliance » work.
They may be re-invoiced to the lessee, subject to two conditions:
– The clause transferring this charge must be sufficiently clear and precise.
– The work does not fall within the scope of major repairs (which are the responsibility of the owner, under article 606 of the French Civil Code).
The parties will also have to agree on the assumption of responsibility for other expenses caused by the improvement in energy performance (audit, studies, calling in an external service provider for the OPERAT declaration). These expenses may also be re-invoiced to the lessee, provided that the clause providing for such re-invoicing is sufficiently clear and precise.
Impact of energy performance work on the renewal rent
The completion of these works, and the improvement in the energy performance of the leased premises during the lease term, could result in the de-capping of the rent for the renewed lease, due to the modification or improvement of the premises’ characteristics.
The rent for the renewed lease should automatically be de-capped (unless otherwise stipulated in the lease). In this way, the work carried out may have an impact on the rental value of the premises at the time of lease renewal.
If the lessee has assumed full responsibility for the work, then he can claim a reduction in rental value based on the requirements of the decree. The judge may thus consider that the cost of the work reduces the rent. Conversely, if the lessor has assumed the entire cost of the work, he may claim that the work, having benefited the lessee, constitutes sufficient enhancement of the building to claim an increase in the rental value.
Sources :
https://www.edf.fr/entreprises/le-mag/le-mag-entreprises/decryptage-du-marche-de-l-energie/tout-savoir-sur-le-decret-tertiaire-obligations-et-solutions-pour-reduire-vos-consommations-d-energie
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000038812251
