BER Compliance Declaration (Ireland)

A BER Compliance Declaration in Ireland makes a formal application or declaration to the relevant authority and sets out the particulars it requires to decide or record the matter, and takes its legal force from the Residential Tenancies Act 2004.

The Building Energy Rating system was introduced in Ireland to implement the EU's Energy Performance of Buildings Directive, which requires all EU member states to confirm that energy performance certificates are available for buildings that are constructed, sold, or rented out. The SEAI (Sustainable Energy Authority of Ireland) — established under the Sustainable Energy Act 2002 — is the statutory body responsible for administering the BER scheme in Ireland, maintaining the register of accredited BER assessors, and developing and maintaining the DEAP (Dwelling Energy Assessment Procedure) and NEAP (Non-Domestic Energy Assessment Procedure) software tools used to calculate BER ratings.

Under S.I. No. 243 of 2012, a BER certificate is required before a building (other than an exempt building) is sold, let, or — for new buildings — first occupied. The regulations impose obligations on vendors, landlords, and property agents to confirm that valid BER certificates are in place, that the rating is included in property advertisements, and that the certificate and Advisory Report are provided to purchasers and tenants. The certificate must be produced by a registered BER assessor and is valid for 10 years from the date of assessment unless significant works are carried out.

The Building Control Act 1990 established the legal framework for building control in Ireland, giving local authorities powers to inspect and enforce compliance with building regulations. The Building Control (Amendment) Regulations 2014 (S.I. No. 9 of 2014 and S.I. No. 365 of 2015) introduced enhanced requirements for the inspection and certification of new buildings — including requirements for a design certificate, an inspection plan, and a certificate of compliance on completion — and increased accountability for designers, builders, and assigned certifiers. For buildings subject to these enhanced requirements, the BER compliance declaration forms part of the overall compliance documentation.

From a housing policy perspective, the Irish government has committed to improving the energy efficiency of the national housing stock as part of its Climate Action Plan obligations under the Climate Action and Low Carbon Development (Amendment) Act 2021. The government has set targets to retrofit 500,000 homes to a BER B2 rating or better by 2030, and the National Home Retrofit scheme and associated SEAI grant programmes are the principal mechanisms for achieving this target. Minimum BER standards for rental properties are being phased in as part of this policy, requiring landlords to upgrade low-rated rental properties or risk losing the ability to let them.

The BER certificate is expressed on a scale from A1 (most energy-efficient) to G (least efficient), with intermediate bands A2, A3, B1, B2, B3, C1, C2, C3, D1, D2, E1, E2, F, and G. New homes built to the Nearly Zero Energy Building (NZEB) standard, which has been mandatory for new residential buildings in Ireland since 1 November 2019, must achieve a Maximum Energy Performance Coefficient (EPC) of 0.3, a Maximum Carbon Performance Coefficient (CPC) of 0.35, and a Renewable Energy Ratio of 20%, resulting in a typical BER rating of A2 or better. The NZEB standard represents a 25% improvement over the 2011 Building Regulations and makes new Irish homes 70% more energy efficient and 70% lower in CO2 emissions than 2005 performance levels. The NZEB requirements are set out in Part L (Conservation of Fuel and Energy — Dwellings) of the Building Regulations 2019 (Technical Guidance Document L).

For conveyancing purposes in Ireland, the BER certificate is treated as one of the standard title documents that the vendor's solicitor must provide to the purchaser's solicitor. The Law Society of Ireland's Conveyancing Committee has published guidance confirming that a valid BER certificate should be included in the vendor's documentation pack. Solicitors routinely raise a standard requisition asking for confirmation of the BER certificate number, the BER rating, and the Advisory Report reference. A BER compliance declaration prepared by the vendor's solicitor or the vendor directly provides a clear, consolidated confirmation of compliance for inclusion in the title documentation and assists in expediting the conveyancing process.

An Irish BER Compliance Declaration is needed in a range of circumstances where a property owner, vendor, landlord, or developer must confirm compliance with the BER regulations under S.I. No. 243 of 2012 and associated legislation.

You need a BER Compliance Declaration when you are: selling a residential or commercial property in Ireland and must confirm to the purchaser's solicitor that a valid BER certificate has been obtained and that the BER rating has been included in all property advertisements; letting a residential property in Ireland and must confirm to the tenant and the RTB that the property meets its energy performance obligations, including any applicable minimum BER standard; a developer or builder completing a new residential or commercial building and must provide the building owner with evidence of BER compliance under the Building Control (Amendment) Regulations 2014; a property management company or landlord applying for a grant from the SEAI under the Better Energy Homes scheme or the National Home Retrofit scheme and must confirm the current BER rating and the rating achieved after retrofitting; or a local authority or housing body confirming that social housing units meet the minimum BER standards required under the Social Housing (Standards for Rented Houses) Regulations.

From the vendor's perspective, a BER compliance declaration is a key title document. In a property sale transaction, the purchaser's solicitor will raise a requisition on title asking the vendor to confirm that a valid BER certificate has been obtained and to provide the BER certificate number, the assessor's MPRN, and the BER rating. If the vendor cannot provide a valid BER certificate, the purchaser is not obliged to complete the purchase — non-compliance with the BER regulations is a potential ground for refusing to close.

For landlords, the phased introduction of minimum BER standards for rental properties makes the BER compliance declaration an increasingly important document. Landlords of properties below the minimum standard should obtain a BER assessment early to understand what works are required to achieve the minimum rating, to apply for SEAI retrofit grants, and to demonstrate to the RTB and prospective tenants that they are taking steps to comply.

For mortgage lenders, the BER rating of the mortgaged property is increasingly relevant to the mortgage valuation and the lender's willingness to lend — green mortgages (with preferential interest rates for high-rated properties) are available from several Irish lenders, and the BER compliance declaration may be required as part of the mortgage application. A BER compliance declaration from the solicitor or vendor confirms the position and expedites the mortgage approval process.

Under the Residential Tenancies Act 2004 as amended by the Residential Tenancies (Amendment) Act 2019, the Residential Tenancies Board (RTB) registers all tenancies and adjudicates disputes. Section 12 of the Residential Tenancies Act 2004 sets landlord obligations. The Land and Conveyancing Law Reform Act 2009, Section 51, governs property transfers. The Property Registration Authority (PRA) maintains the Land Registry under the Registration of Title Act 1964.

A thorough Irish BER Compliance Declaration should contain the following key provisions and information to satisfy the requirements of S.I. No. 243 of 2012, the Building Control Act 1990, and the administrative practice of the SEAI, solicitors, and lending institutions.

The declarant identification clause identifies the declarant — whether the property owner, vendor, landlord, developer, or their solicitor — by full name, address (including Eircode), and capacity. For a solicitor making the declaration on behalf of a client, the solicitor's name, firm, and Law Society number must be stated, together with the client's name and PPS number.

The property identification clause identifies the property by full address (including Eircode), folio number (for registered land), and the class of building (dwelling, commercial premises, mixed-use). For new buildings, the planning reference number, Commencement Notice reference, and completion date should be stated.

The BER certificate details clause provides full details of the BER certificate — including the certificate reference number (assigned by the SEAI register), the BER rating (on the A1 to G scale), the energy performance indicator (in kWh/m²/year), the CO2 emissions indicator (in kgCO2/m²/year), the date of assessment, the date of issue, and the expiry date (10 years from the date of issue). The assessor's name and SEAI registration number must also be stated.

The Advisory Report clause confirms that a BER Advisory Report has been produced by the registered assessor, setting out the recommended energy improvements for the property, and confirms that the Advisory Report has been (or will be) provided to the purchaser or tenant.

The advertisement compliance clause (for sale and letting transactions) confirms that the BER rating has been included in all property advertisements for the sale or letting of the property, in compliance with Regulation 8 of S.I. No. 243 of 2012.

The minimum standard compliance clause (for rental properties) confirms whether the property meets the applicable minimum BER standard for rental properties (currently B2 for new tenancies in scope, subject to phased implementation). Where the property does not meet the minimum standard, the clause should describe any works planned or carried out to achieve the standard, the estimated BER rating after works, and the SEAI grant application reference number (if applicable).

The building control compliance clause (for new buildings) confirms that the building was designed and constructed in compliance with the Building Regulations 2019 — in particular Part L (Conservation of Fuel and Energy) of the Building Regulations — and that a certificate of compliance on completion has been lodged with the Building Control Authority under the Building Control (Amendment) Regulations 2014.

The accuracy and statutory declaration clause confirms that the information contained in the declaration is true and accurate, that the declarant has not withheld any material information, and — where the declaration is sworn as a statutory declaration — that the declarant understands the consequences of making a false statutory declaration under the Statutory Declarations Act 1938.

The signature and date clause must record the full name, address (including Eircode), and signature of the declarant, together with the date of the declaration. Where the declaration is made by a solicitor on behalf of a client, the solicitor's Law Society practising certificate number should be included. For transactions involving mortgage finance, the lender's solicitor may require the declaration to be sworn before a commissioner for oaths. Retaining a copy of the BER certificate, Advisory Report, and signed compliance declaration in the transaction file is essential for post-completion compliance and for any future sale or letting of the property. The forms-legal.com BER Compliance Declaration (Ireland) template covers the mandatory elements under Residential Tenancies Act 2004.