The supposed "BER cert" loophole...

Grolschevik

Apologies for the long post, but here's my take on it.

There has been some recent discussion on whether a landlord's failure to provide a BER cert to a tenant constitutes grounds for that tenant to break a lease. The contention that it is grounds is being supported with reference to a 28/7/2008 circular from the Law Society’s Conveyancing Committee. See here: http://www.ber-certs.ie/law_society_circular.pdf.

As background, here's a sample of the a sample of some of the arguments:

Pro arguments:
"Fact is if a landlord does not provide a BER certificate before the lease is signed then the tenant can back out of the contract since a major statutory precondition has been broken."

Con arguments:
"The opinion of the Conveyancing Committee of the Law Society is opinion only. This is at best an as yet untested possible bargaining tool, and at worst a myth. A breach of the regulations on the part of the landlord does not unequivocally give you the right to break a contract."

"A similar thread came up in the Legal Discussion forum. A failure to produce a BER is an offence only. Nowhere in the Regulations does it state that leases, deeds etc. are invalidated. You would use it as a 'loophole' at your own peril."

"Again, the Regulations do not provide for any right to rescind a contract, lease or whatever. That article seems to suggest that a tenant might be able to use the threat of reporting non-compliance as leverage, which is another matter entirely."


Now, it seems to me that the relevant parts of that Law Soc letter are these bits:

Text A:
“It is the view of the committee that failure to provide a BER certificate before a contract/letting is signed cannot be remedied by a subsequent provision of such certificate unless the purchaser is simultaneously given the opportunity to back out of the contract.”

Text B:
“...it is the view of the committee that the client will have to be told by his solicitor that a contract/letting agreement cannot be sent out until such a time as a BER certificate has been obtained.”


I believe that the ‘pro’ arguments are based on a misinterpretation of what this document says, and that the document does not support the ‘pro’ contention.

Text B says that, to comply with the law, the cert must be supplied before the contract is signed.

Text A says that, if this isn’t done, then the failure to supply the cert (the breach of the regulations) can’t be rectified by the retrospective provision of the cert, unless a ‘back out of the lease’ option is offered by the landlord (in an “if I’d known, I wouldn’t have signed” sort of sense).

If a BER cert is supplied retrospectively or late, but a backout option is not offered, this means that the landlord is still in breach of the regulations, but this does not equate to the contract being invalid – merely that the landlord is still in breach of the regulations.

That is, the breach of the regulations cannot be rectified by retrospective provision, not that the failure to provide a cert invalidates the lease.

This does not equal carte blanche to unilaterally break a lease ten months into a 12-month lease on the basis that a BER cert was not supplied.

By the ‘pro’ logic, shouldn’t people be trying to get out of negative equity mortgages with their full money back just because no BER cert was supplied upon closing?

Ray Palmer

You are wrong to beleive the legal system is based on the law society stating their opinion. It doesn't make it law it's just that simple. If you can find it in the constition then you are right and I am wrong.

Hint: You won't find it

Grolschevik

Ray Palmer wrote: »

You are wrong to beleive the legal system is based on the law society stating their opinion. It doesn't make it law it's just that simple. If you can find it in the constition then you are right and I am wrong.

Hint: You won't find it

Nowhere did I say it did. From your other posts here, if you read my post, I think you'll find that I agree with you. The opinion of that committee has been misinterpreted and used as the basis for wrong arguments on this forum.