BER Ratings to be advertised from Jan 1st 2013

RATM

Just read over the weekend that from Jan 1st 2013 it will be a legal requirement for landlords to not only hold a BER cert and show it to tenants but also to advertise the BER rating alongside the property in any ads in papers, on Daft, Myhome, etc. In theory it should make comparing the quality of places transparent, this is providing the BER ratings that are advertised have actually been tested and that the rating reported is the one that applies.

Just wondering what recent renters experience with the BER Cert has been ? Did the landlord show you the physical cert when inspecting the property ?

Rasmus

RATM wrote: »

Just read over the weekend that from Jan 1st 2013 it will be a legal requirement for landlords to not only hold a BER cert and show it to tenants but also to advertise the BER rating alongside the property in any ads in papers, on Daft, Myhome, etc. In theory it should make comparing the quality of places transparent, this is providing the BER ratings that are advertised have actually been tested and that the rating reported is the one that applies.

Just wondering what recent renters experience with the BER Cert has been ? Did the landlord show you the physical cert when inspecting the property ?

That's good news. Where did you read this?
In my own experience, I have never seen one. I asked once, (just after the regulation came in) but was told there wasn't one.

djimi

I cant say that I have ever had a BER cert volunteered to me when viewing a property!

This can only be good news for the rental market. In theory, landlords shouldnt even bother advertising poorly insulated and badly rated properties once they know they will generate no interest. Of course, Im sure someone will find a way around it, but hopefully for the most part it will see the quality of rentals rise, or at least the number of poor rentals fall.

RATM

Rasmus wrote: »

That's good news. Where did you read this?
In my own experience, I have never seen one. I asked once, (just after the regulation came in) but was told there wasn't one.

It was in last Sunday's Business Post, I think it is behind a paywall so I can't link to it.

I also asked for one but never got it from my landlord, just got fobbed off and left it. Interestingly a lease is most likely not (legally) valid if the landlord has failed to show the BER Cert upon request at the time of rental.

From my experience and that of friends none of us have ever seen a BER Cert. It suggests to me that a good portion of landlords haven't spent the €200 odd it costs to get one.

I can see a situation developing in January whereby landlords who don't have one just make up the rating off their own bat, taking a midpoint like C2 and advertising it with their property. Prospective tenants would be wise to take a screenshot of the ad of a property they rent in case of a dispute further down the line. It could be a handy piece of leverage in a case where a landlord tries to withhold a deposit with no valid reason.

Zamboni

I've never asked and it's never been volunteered.
I checked it online recently and I am surprised at how low the rating was. Doesn't really correspond with my energy bills.
I do think that it is a reasonable requirement to make mandatory.

Rasmus

RATM wrote: »

It was in last Sunday's Business Post, I think it is behind a paywall so I can't link to it.

I also asked for one but never got it from my landlord, just got fobbed off and left it. Interestingly a lease is most likely not (legally) valid if the landlord has failed to show the BER Cert upon request at the time of rental.

From my experience and that of friends none of us have ever seen a BER Cert. It suggests to me that a good portion of landlords haven't spent the €200 odd it costs to get one.

I can see a situation developing in January whereby landlords who don't have one just make up the rating off their own bat, taking a midpoint like C2 and advertising it with their property. Prospective tenants would be wise to take a screenshot of the ad of a property they rent in case of a dispute further down the line. It could be a handy piece of leverage in a case where a landlord tries to withhold a deposit with no valid reason.

I am not sure you would come across many LLs falsely advertising a BER rating if they have to show it to tenants according to a new rule. I haven't seen the article so without knowing exactly what it says it is hard to judge.
Aside, if a LL withholds a deposit without valid reason, a tenant doesn't need leverage!

Rasmus

Zamboni wrote: »

I've never asked and it's never been volunteered.
I checked it online recently and I am surprised at how low the rating was. Doesn't really correspond with my energy bills.
I do think that it is a reasonable requirement to make mandatory.

Where can you check it online?

RATM

Rasmus wrote: »

I am not sure you would come across many LLs falsely advertising a BER rating if they have to show it to tenants according to a new rule. I haven't seen the article so without knowing exactly what it says it is hard to judge!

Well that seems to be the problem- despite the current rule of landlords being required to show it to a prospective tenant it appears that there is a proportion of landlords who are fudging when asked to do so or else not volunteering it at all. It is more likely a landlord who knows the insultation and single glazed windrows are so poor that their BER rating would be rock bottom.

So if they don't have one they're already breaking the law, with the intention of telling their tenants that it is X rating but that "they don't have the Ber Cert on them". If they're willing to do that then they'd likely advertise a false rating too. After all who would even bother ringing up about a property advertised for rent with a BER Rating of G ? I suspect this is open to fraud as those with ratings like G (which say their property is a freezing cold, little or no insulation, etc) are incentivised to advertise it at a higher rating. Its not like it is going to be a majority of landlords or anything but given mine and other posters experience of not seeing BER Certs upon signing leases then I think it is safe to say that the system is open to abuse.

RATM

Rasmus wrote: »

Where can you check it online?

You need either the BER number or the ESB meter number to check it
https://ndber.seai.ie/pass/ber/search.aspx

Rasmus

RATM wrote: »

Well that seems to be the problem- despite the current rule of landlords being required to show it to a prospective tenant it appears that there is a proportion of landlords who are fudging when asked to do so or else not volunteering it at all. It is more likely a landlord who knows the insultation and single glazed windrows are so poor that their BER rating would be rock bottom.

So if they don't have one they're already breaking the law, with the intention of telling their tenants that it is X rating but that "they don't have the Ber Cert on them". .

I think that is a big assumption. Just because there is no cert does not mean the house will be freezing. Further still, there is nothing to say that in the absence of a cert, the LL will lie about the rating.
The new legislation is sound though. I don't know if it will make LLs better insulate properties, but it may take down some rents.

TheDriver

AFAIK there is no actual BER cert but rather they can print it on a piece of card and make the rating look fancy. What is required is a BER number which SEAI have registered and shows your rating and who did the survey.

xper

RATM wrote: »

... Interestingly a lease is most likely not (legally) valid if the landlord has failed to show the BER Cert upon request at the time of rental. ....

This is not as clear and simple a fact as you (and many others) have stated. I've just posted on this matter on another thread, see here. There's also a link there to the legislation that is bringing in this new requirement to have the BER rating on the ad. (It actually comes into force on January 9th, not the 1st).

RATM

xper wrote: »

This is not as clear and simple a fact as you (and many others) have stated. I've just posted on this matter on another thread, see here. There's also a link there to the legislation that is bringing in this new requirement to have the BER rating on the ad. (It actually comes into force on January 9th, not the 1st).

Well as you say over on that thread you are not a lawyer. And neither am I. But my understanding of why a lease is null and void if the landlord has not presented the BER Cert at the time of rental is because under contract law he has a duty before signing a legal contract to ensure that his actions in doing so are legal themselves.

This is the same defence that Sean Quinn will be using against Anglo- he is not denying the contract for loans took place, he is claiming that the contract is an illegal document because Anglo broke the law to facilitate the loan, i.e they lent money to prop up their own share price- a very illegal practice. So as bizarre as it is there is a very good chance that Quinn will be getting off the hook for that €2.2bn loan because the fraud committed in honouring the contract made the contract in itself null and void.

I'm told by a friend in the legal game that the exact same defense could be used by someone who wasn't presented with a BER Cert. When you enter into any contract you have an obligation to do so in good faith with the other party, in entering it you must not knowingly be breaking the law by doing so. In the case of a landlord who doesn't supply a Ber Rating, either voluntarily or when asked to, is breaking the law, therefore the contract entered into is null and void.

You can see why the principle stands in contract law. If one party has broken the law then there has to be a way out of the contract for the other person. If it didn't exist it would lead to absurdities- imagine a council signing a 20 year contract with a private rubbish collector to look after an entire towns rubbish. Then in year 2 of the 20 year contract the media break a huge story about how the company is illegally dumping the rubbish in landfills and polluting rivers, which is met with huge public anger. There is no way the council are going to honour the remaining 18 years because the rubbish company broke the law in the fulfilling of their contractual obligations. Or imagine a company being supplied electronics by another company under contract then discovering the supplied goods are stolen- are they obliged to fulfill their end of the contract and thus carry on buying stolen goods because the contract says they must purchase X amount ? No, of course not !

In the case of BER's and leases it would be especially pertinent if no cert was given and then a few weeks later the tenant complained about a freezing cold unit and wanted to break the lease as a result. They would not only be claiming that the contract was illegal but also that they didn't have all available information before they signed the lease, as the defendant with held information which they were legally bound to volunteer. They would be telling the judge that if the landlord had of supplied the Ber rating then they might have never moved in due to such a low rating, bad insulation, damp, etc, etc. I would doubt a landlord with a 12 month lease would get much sympathy from the bench if their actions of not supplying a BER were a factor in the dispute arising in the first place.

In any case we haven't had a test case as yet. Will be interesting when we do, my money's on the tenant.

Krieg

Whats to stop landlords falsely advertising a very good BER cert?

xper

RATM wrote: »

... my understanding of why a lease is null and void if the landlord has not presented the BER Cert at the time of rental is because under contract law he has a duty before signing a legal contract to ensure that his actions in doing so are legal themselves.
<snip>
In any case we haven't had a test case as yet. Will be interesting when we do, my money's on the tenant.

You're interpretation may well be right but as you point out, someone has to go before a judge or tribunal or whatever and argue this out before anyone is sure. That's why I am very uncomfortable with one liners being posted asserting with total or strong conviction that BER-less leases can be ignored. It is often in response to queries from tenants that clearly have a poor grasp of the wider laws and regs around renting and I don't think its fair to have them charging off to their landlords armed with one sentence from a discussion board. EDIT: I would suspect that the legal precedent, if and when it comes, will involve a case regarding a house sale rather than a rental lease, the higher stakes will more likely push it into a court.

Krieg wrote: »

Whats to stop landlords falsely advertising a very good BER cert?

Well, the landlord still has to produce the actual cert to the prospective tenant prior to the lease signing so at that point, the rating should at least match and the cert number can be verified online (I stand to be corrected on this last point, I haven't actually been presented with a BER cert to date).
The problem then is one of enforcement. Can you report discrepancies easily and will they be followed up? There seems to have been little or no enforcement of the existing requirement to present a cert (without being asked) but the fact that they are changing the legal requirement might be influenced in part by having found that difficult to police(?). At least from January onwards, the enforcing party can trawl through Daft/MyHomes and pick out offending adverts if they are so inclined.

It might also be interesting to see if advertising outlets (Daft/MyHomes/newspapers) will carry ads submitted without BER ratings. The Law Society makes a point to its members in its guidelines that the legislation refers to 'agents' as being liable to prosecution as well as sellers/landlords but does not define the term 'agent'. It therefore advises its members to assume they would be liable and to act and advise their clients accordingly. The lawyers for Daft/MyHome may advise a similar arse-covering exercise. That said, I cannot really see them deleting the thousands or BER-less ads already on the sites.

RATM

xper wrote: »

You're interpretation may well be right but as you point out, someone has to go before a judge or tribunal or whatever and argue this out before anyone is sure. That's why I am very uncomfortable with one liners being posted asserting with total or strong conviction that BER-less leases can be ignored. It is often in response to queries from tenants that clearly have a poor grasp of the wider laws and regs around renting and I don't think its fair to have them charging off to their landlords armed with one sentence from a discussion board. EDIT: I would suspect that the legal precedent, if and when it comes, will involve a case regarding a house sale rather than a rental lease, the higher stakes will more likely push it into a court.

Well I am only going on the advice given by the Law Society and the opinion of a friend who is a solicitor and my sister who is both a barrister and a solicitor. But as you've said there has no case as yet so we can't be certain. However my friend did say it is the type of case that he would jump to take on a no win no fee as he said 1) He'd be confident of winning it and 2) It would enshrine the principle in law and bring him more work

But he did also say that it is unlikely that we'll be seeing a case in respect of rentals anytime soon. This is simply because a landlords solicitor would advise him to stay well away from going the distance in court as the odds are stacked against him. A landlord who knowingly broke the law in signing a contract is going to get short shrift in front of any judge. He also explained that with cases like this the decision is frequently left to case law and legal precedents- i.e. the judge will look for similar cases and follow their outcomes as guidance. In the case of a contact being entered into by breaking the law well there are hundreds of cases to fall back upon and the overriding outcome of them is that if the law was broken in forming the contract then the other party has the right to walk away from that contract without any cost to themselves. That's why my friend is confident he could easily win such a case and according to him thats why an opposing solicitor would be daft to advise their client to go to court to battle it out- instead they will settle as they know they're on a hiding to nothing.

It is the exact same in this country with clamping on private property - it is totally illegal and the clamping companies know it. If you take them to court they will settle and refund the fine before it gets anywhere near the hearing date. The reason why is they know a test case will finally spell out in black and white that their whole industry is illegal and they'd have to shut down in the morning, the last thing they want is a judge delivering a verdict saying that their modus operandi is outlawed.

At the end of the day a landlord is legally obliged to produce a BER Cert before a lease is signed. That much is clear in law as is the principle of not carrying out illegal activity when signing a contract. In my mind it is a slam dunk and one a landlord would be well advised to never challenge as it is they that created the situation by not showing a BER cert in the first place.

Anyway my entire point was that, anecdotally at least, a proportion of landlords are not producing BER Certs. It has happened me and two other posters in this thread. Friends of mine who have been offered a BER Cert are very much in the minority. Maybe we are all unlucky or maybe landlords are avoiding their legal obligations. If they are then they could be setting themselves up for a very big fall because the law is very clear in how to deal with illegal contracts.

EricPraline

Confirmed here by SEAI. I'd be curious to see how Daft and Myhome handle this:

http://www.seai.ie/Your_Building/BER/Advertising_of_BER/

• A person offering a property for sale or rent on or after 9th January 2013, or their agent, shall ensure that the energy performance indicator of the current BER certificate for the building is stated in any advertisements, where such advertisements are taken relating to the sale or letting of that building.
  
• Prospective buyers and renters will be shown the BER rating (Alphanumeric value) along with other prescribed content (dependent on the particular medium) in a prominent location in each specific advertisement

RATM

EricPraline wrote: »

Confirmed here by SEAI. I'd be curious to see how Daft and Myhome handle this:

http://www.seai.ie/Your_Building/BER/Advertising_of_BER/

I'd imagine that from January 9th (or before hand) Daft & Myhome will have a drop down menu on their ad placing pages specifically for BER rating and that it cannot remain blank in order to advertise a property.

For previous advertisers they can easily send them an email asking them to add a BER rating or their ad will go offline on Jan 9th until such time as one is added. Or if they are only advertising the property for 2 weeks, some of which falls on Jan 9th by only a few day they might just leave it and give a grace period.

I'd imagine all media outlets, both print and online, will adopt this on Jan 9th. My reasoning for that is the word 'agent' used in the legislation. I don't think this refers to only estate agents, it refers to the legal word 'agent' i.e. someone who does something on your behalf. What it means is you can't avoid your legal obligations by outsourcing the work to someone else. I'd take the word agent in this instance to mean an estate agent, newspaper, property website, etc- basically any company whose services you use to advertise the property.

So even if you did find a newspaper or website who was willing to advertise your property without a BER Rating attached then you are still breaking the law. The excuse of 'it was the newspaper/website who advertisted it, not me' doesn't wash because you are responsible for the actions of your agents who are helping you sell or rent the property.

Idbatterim

wouldnt it be great if every rental had 4 or 5 years to bring it up to a minimum standard? i.e say minimum C3. Maybe just exempting period properties, where they would have to provide modern high efficiency boilers with heating controls?

pwurple

Am I the only person who thinks the BER are a bit of a con-job? The concept is great, but the implementation, oh dear. They count the light bulbs for goodness sake. You get a higher rating by taking out the light bulbs before they inspect.

You would expect it to be nice and scientific, with heat meters, or any kind of measuring device. but instead they ask you the year the place was built, which assumes a base rating, and then add on the other bits like light bulb count. We all know there are HUGE variences in how places were built and insulated every year. The test is subjective, it depends on the BER person.

You can haggle with them, getting an extra property rated for free etc... They do re-test deals. BER people all charge different rates. To qualify, as far as I can tell the course is just on how to operate the BER piece of software, and print the cert. It is the usual irish half-arsed solution.

Wish it had been done properly, so we would have something of value.

Marcusm

RATM wrote: »

Well I am only going on the advice given by the Law Society and the opinion of a friend who is a solicitor and my sister who is both a barrister and a solicitor. But as you've said there has no case as yet so we can't be certain. However my friend did say it is the type of case that he would jump to take on a no win no fee as he said 1) He'd be confident of winning it and 2) It would enshrine the principle in law and bring him more work

You might want to ask your sister how she managed to be both a solicitor and barrister at the same time as it's generally precluded! It's easy to move ver and back between the two but not generally possible to be both at the same time.

As regards the Law Society view, I believe the view expressed was that if a BER cert was not provided in advance of signing the lease then its subsequent provision did not provide a remedy - ie the landlord, prima facie, had contravened the BER regulations and could be prosecuted by the relevant building control authority (i.e. local authority, council etc). I do not believe that the Law Society expressed an opinion as to the enforceability of the lease in such circumstances. This is understandable as int he absence of a legislative provision deeming the transactions to be void in such circumstances, such an assertion would be a blunt tool. This is little different from leases of properties which do not meet building control or fire safety standards; such transactions are always not void per se.

EricPraline

pwurple wrote: »

To qualify, as far as I can tell the course is just on how to operate the BER piece of software, and print the cert. It is the usual irish half-arsed solution.

To be fair, speaking to assessors recently, I can vouch that this isn't true. The exams are quite detailed, requiring the assessors to understand the calculations that are used to produce the ratings, with considerable emphasis on how ratings could be improved. SEAI were pretty lax at the start, leading to a flood of dodgy assessors. But the annual exams now are far more comprehensive and audits are commonplace to eliminate any kind of subjectivity. So this is pushing the casual, lazy assessors out of the market, on to the next cushy job (regular valuations/estimates for the property tax?).

StillWaters

Idbatterim wrote: »

wouldnt it be great if every rental had 4 or 5 years to bring it up to a minimum standard? i.e say minimum C3. Maybe just exempting period properties, where they would have to provide modern high efficiency boilers with heating controls?

No. It would be prohibitively expensive, and rents would have to rise, and the Market just can't bear that.

There was talk of introducing this for RA properties but was dropped for this reason.

BostonB

Idbatterim wrote: »

wouldnt it be great if every rental had 4 or 5 years to bring it up to a minimum standard? i.e say minimum C3. Maybe just exempting period properties, where they would have to provide modern high efficiency boilers with heating controls?

I think that would remove a lot of rental properties off the market, reducing capacity, then the ones that were left would increase their rents to pay for the work required.

The BER expects that building standards were adhered to. Unfortunately...

http://www.constructireland.ie/News/Government/Unpublished-SEAI-report-showed-systemic-building-control-failure.html

Publishing the Ber will give Renters a better idea of how good/bad a building is. I wonder how closely the BER rating matches the reality though.

L1011

A BER was issued for the property I bought without the inspector actually checking something as simple as the attic insulation. I suspect that the figures on it are completely gibberish. The explanatory report claimed the two cheapest fixes were to insulate the attic (it is... but they didn't check) and put in energy efficient lightbulbs (there were barely any lightbulbs in the place, it was empty at the time).

So, there's still dodgy assessors around and the overall system still relies on guesswork.

murphaph

Idbatterim wrote: »

wouldnt it be great if every rental had 4 or 5 years to bring it up to a minimum standard? i.e say minimum C3. Maybe just exempting period properties, where they would have to provide modern high efficiency boilers with heating controls?

Hmmm. most people who own their own homes don't meet C3 so I don't know why rentals should be forced up to this theoretical minimum standard. The market should decide. People will eventually realise that a BER rating does not always correspond to heating costs or comfort levels. And that's before you even get into the BER debate - remember there are no tests done. The BER calculation is entirely theoretical. A house with super insulation which isn't airtight will leak energy around the insulation and may be more costly to heat than a lower rated property.

murphaph

StillWaters wrote: »

No. It would be prohibitively expensive, and rents would have to rise, and the Market just can't bear that.

There was talk of introducing this for RA properties but was dropped for this reason.

But RAS properties with some LAs do require minimums. Fingal don't publish it AFAIK but you need a minimum D2 to get a property into the RAS with them.

Icepick

Do they not do this

to create the cert?

BostonB

No thats thermal scan.

Macha

Icepick wrote: »

Do they not do this

to create the cert?

No, they use software based on a certain amount of assumptions about u-values. The software is called Dwellings Energy Assessment Procedure (DEAP).

Icepick

So for example 10-year-old double-glazed windows give the same amount of points regardless of their quality, wear, ..etc?