Starting from 1 January 2023, offices buildings will be subject to the obligation to have at least an energy label C. The Dutch government introduces this obligation for the purpose of the climate objectives to be achieved, and particularly for the realization of an “energy-neutral built environment” in 2050. Depending on the current energy label, this obligation will naturally have consequences for the owners of office buildings in the first place, but it will also (have to) give lessees food for thought. After all, enforcement looms if the conditions are not met, with the closure of the office building as an ultimate consequence. The new obligation gives rise to several questions; for example, whether non-compliance with the label requirement constitutes a (latent) defect already now (or only if the law is actually enforced), and how the responsibilities and costs of the sustainability measures are divided between the lessor and the lessee. Another interesting question is whether, although the new obligation applies explicitly to office buildings, other users within a multi-tenant building (such as the well-known retail strip or the hotel with a rooftop bar on the upper floor) might also be confronted with this obligation in some way. Below, after a description of the conditions of the new obligation, we will go into this question in more detail.
New obligation in Buildings Decree 2012
The obligation for office buildings to have at least an energy label C starting from 1 January 2023 is set out in the Buildings Decree (Bouwbesluit). Under the Buildings Decree, an ‘office building’ is defined as a building or any part thereof with only one or more office functions or ancillary functions thereof. The guiding principle for determining the function of a (part of a) building is the actual use.
The obligation applies to office buildings whose surface area with an office function is bigger in any case than 100 m2. In addition, the usable area of office function must at least cover 50% or more of the total surface area of the building. The decree contains a number of other exceptions, e.g. for national monuments and buildings destined to be demolished.
The competent authority (in most cases this will be the municipality) may resort to enforcement in the event that the obligation is not complied with. They may do so by issuing a warning, but also by imposing an order subject to a penalty for non-compliance. As of 1 January 2023, the Buildings Decree prohibits the ‘occupation or use’ of an office building without a valid energy label C or higher. Apart from their responsibility under the lease, this means that both the lessor and the lessee can be called to account by the competent authority.
Prior to 1 January 2023, the sustainability measures necessary to elevate the office building to an energy label C must have been taken, and the registration of these measures must also have been completed. Depending on the current energy label and the scope of the sustainability measures required, there is no harm in starting preparations on time, especially given the current greater scarcity of building contractors and materials.
Multifunctional building
You may wonder whether, and to what extent, the new obligation also applies to a multifunctional building that includes office space as well as functions like a hotel, a restaurant or retail space. What matters here is the above-mentioned condition of the usable area of office function having to cover at least 50% or more of the total surface area of the building. If a building is multifunctional, the obligation only becomes relevant if the office space fulfils a proportionately significant function in it.
But what if the ‘office building’ indeed covers more than 50% of the total building and the obligation applies; does the obligation to have an energy label C then apply to the entire building, including other users, like the hotel? To put it differently: does the hotel run the risk of being ‘caught up in’ the closure of the office building?
According to the Buildings Decree 2012, the ban on use applies to ‘office buildings’. As explained above, an ‘office building’ is defined as a building or any part thereof with only one or more office functions or ancillary functions thereof. In this case, the energy label C obligation will therefore not apply to the functions of hotel or retail space as part of the same building. This will only be different if this function can be designated as an ‘ancillary function’ and serves the office function, for example as a company restaurant does in an office building. However, this will not be the case for a hotel. In other words: the potential closure of the office part will not mean that the hotel will also be closed.
This does not alter the fact that it may indeed be relevant for the hotel as part of a multi-tenant building whether one of its co-users is subject to the energy label C obligation. The importance hereof lies not only in the sustainability measures to be implemented for the office part (and possible consequences thereof for the entire building), but also given potential enforcement with regard to the office part, and possible vacancy in the building as a result.
Conclusion
The compulsory energy label C for office buildings gives rise to many questions. In our opinion, for the time being the hotel company as a user within a multi-tenant building need not worry about whether the new energy label C obligation for office buildings applies to it also. Of course, this does not alter the impact on the hotel (or its exploitation) of possible measures for sustainability and any vacancy in the building. Furthermore, given the climate objectives for 2050, similar legislation is expected to be introduced for hotels and shops. In short, there is every reason to keep a close eye on this topic in the time to come.
Please contact Loes ter Meer if you have any questions.
