The Energy Performance Certificate (APE): the nature and content of this document, and the related regulations on real estate sales.
During a real estate sale, it is essential that the selling party, for the purpose of signing the deed (read our article on the notarial deed), provides the notary with a complete series of documents relating to the property, including the APE:
WHAT IS THE ENERGY PERFORMANCE CERTIFICATE
It is a document issued by qualified and independent experts which certifies the energy performance of a building through the use of specific indicators – a 10-letter scale ranging from A to G which attributes the so-called energy class and provides recommendations for improvement of energy effeciency.
The “energy performance of a building” is the annual amount of primary energy actually consumed or expected to be needed to meet, with a standard use of the building, the various energy needs of the building, heat and air conditioning, preparation of hot water for sanitary purposes, ventilation and, for the tertiary sector, lighting, any life and escalator systems.
The Energy Performance Certificate or APE is mandatory in order to access tax incentives for the energy efficiency of buildings, in the form of ecobonus or superbonus.
The APE is drawn up by an “accredited subject”, with specific skills in the energy efficiency of buildings, called an energy certifier: usually a technician qualified for the design of buildings and systems, in whose possession significant civil and criminal liability exists by law.
PURPOSE OF THE APE
The purpose of the APE is essentially assessing the economic convenience of buying and leasing a property in relation to energy consumption (thus also performing a market orientation function towards better performing buildings), as well as advising on possible and effective energy requalification interventions.
THE LEGISLATIVE FRAMEWORK
Pursuant to Legislative Decree 192/2005:
The certificate is valid for a maximum of ten years from its release and is updated with each renovation or redevelopment intervention that modifies the energy class of the building or real estate unit.
Law 90/2013 indicates the cases in which the production of the APE is mandatory, namely:
– Sale: transfers for consideration (ex. deed, home exchange)
– Donation: free transfers
– Rental of buildings or individual real estate units
– Announcements for the sale or rental of real estate units (to determine the energy performance index, i.e. the total energy consumed annually by the air-conditioned building for each square meter of surface)
– New construction buildings upon completion
– Major renovations, when the work insists on more than 25% of the envelope area (walls and roofs) of the entire building
– Public buildings and open to the public
– For all new or renewed contracts for the management of heating or air conditioning systems in public buildings
Article 6 paragraph 2 of Legislative Decree 192/2005, as amended by law 90 of 2013, establishes that:
in the case of sale, transfer of buildings free of charge or new lease of buildings or real estate units, where the building or unit does not already have them, the owner is required to produce the energy performance certificate.
Furthermore, the APE must be attached to the real estate sales contract which must contain a specific clause where the buyer declares to have received from the seller the documentation including the certificate. According to the law, failure to submit a claim, while not entailing the nullity of the contract, gives rise to an administrative penalty, which the parties are required to pay jointly.
There is therefore a real obligation to endow, attach and deliver, valid for all transfer deeds for consideration.
Legislative Decree 63/2013 introduced a new discipline to be applied during sales negotiations, sanctioning the obligation to provide the APE also when signing the preliminary sale agreement.
In the event that the owner decides to put their property up for sale, they must make the APE available to the potential buyer from the beginning of the negotiation, and then deliver it to him at the end of the negotiation, at the latest when the preliminary contract is signed.
There is no legal obligation to attach the APE to the preliminary agreement, given that the regulation applies only to deeds that produce property transfer effects (and therefore not to preliminary sales agreements, which only produce “mandatory” effects).
Finally, Legislative Decree 48/2020 which, by amending Legislative Decree 192/2005, implements EU Directive 844/2018 on the energy performance of buildings, has introduced important innovations aimed at reducing the consumption necessary to meet energy needs associated with the normal use of the buildings.
New features include:
calculation methods, professional requirements, penalties (for lease contracts without APE), mandatory inspection (the certificate will include a specific note where the mandatory inspection date must be inserted, which will be accompanied by a special report signed by the owner), register of APE’s.