At the beginning of the month, a royal decree on the certification of energy efficiency (EEC) of buildings came into force, which can mean an earthquake for the holiday rental market.

On June 1, Royal Decree 390/2021was published in the BOE, which approves the basic procedure for the certification of the energy efficiency of buildings, which establishes the obligation to have the energy certificate of the house to be able to rent it to tourists.

The INE estimates that in Spain there are currently about 295,000 homes for holiday use and, according to sources from the Ministry for the Ecological Transition and the Demographic Challenge to idealista/news, since last June 2, when the regulations came into force, all owners are obliged to advertise their holiday rental home with the energy certificate and to include it in the contracts of lease, and also in the case of sale. The Autonomous Communities will be responsible for both registering the certificates, as well as supervising that the regulations are complied with and, if necessary, imposing the corresponding economic sanctions.

The regulations establish a sanctioning regime with amounts ranging from 300 to 6,000 euros,depending on the infraction committed. Specifically, there are three sections: in the case of minor infractions, the fines are between 300 and 600 euros; while in the case of infractions they are serious, the penalty will move between 601 and 1,000 euros. And if it is a very serious infraction, the fine will be between 1,001 and 6,000 euros. That is, the amounts that apply in the case of the sale or rental of a habitual residence or second homes are maintained.

What can motivate a sanction

According to Royal Legislative Decree 7/2015,these are the situations in the field of energy certification of buildings that are framed within each case:

Very serious infractions, with fines of 1,001 to 6,000 euros

• Falsifying the information in the issuance or registration of energy performance certificates.
• Act as a certifying technician without meeting the legally required requirements to be so.
• Act as an independent agent authorized to control the certification of the energy performance of buildings without having the proper authorization granted by the competent body.
• Advertise in the sale or rental of buildings or part of buildings, an energy efficiency rating that is not supported by a duly registered certificate in force.
• Similarly, the serious infringements referred to in paragraph 4 (serious infringements) shall be very serious infringements, where during the three years preceding their commission a final penalty has been imposed on the offender for the same type of infringement.

Serious infractions, with fines of 601 to 1,000 euros

• Failure to comply with the conditions established in the calculation methodology of the basic procedure for the certification of the energy performance of buildings.
• Failure to comply with the obligation to present the energy performance certificate to the competent body of the Autonomous Community in terms of energy certification of where the building is located, for registration.
• Do not incorporate the energy performance certificate of the project in the project of execution of the building.
• Display a label that does not correspond to the energy performance certificate validly issued, registered and in force.
• Sell or rent a property without the seller or lessor delivering the valid, registered and valid energy efficiency certificate to the buyer or lessee.
• Similarly, serious infringements shall be the minor infringements provided for in paragraph 5 (minor infringements), when during the year prior to their commission a firm sanction had been imposed on the offender for the same type of infringement.

Minor infractions, with fines of 300 to 600 euros

• Advertise the sale or rental of buildings or units of buildings that must have an energy performance certificate without mentioning their energy efficiency rating.
• Do not display the energy efficiency label in the cases in which it is mandatory.
• The issuance of energy performance certificates that do not include the minimum information required.
• Failure to comply with the obligations to renew or update energy performance certificates.
• Do not incorporate the energy performance certificate of the finished building in the Building Book.
• The display of energy efficiency label without the legally established minimum format and content.
• Publicize the qualification obtained in the energy efficiency certification of the project, when the energy performance certificate of the finished building is already available.
• Any actions or omissions that violate the provisions on energy efficiency certification when they are not classified as serious or very serious infractions.

Apart from all the above, the regulations add that "in cases where the benefit that the offender has obtained for the commission of the infraction was greater than the amount of the sanctions in each case indicated in the previous section, the sanction will be imposed for an amount equivalent to the benefit thus obtained. In the graduation of the sanction, the damage produced, the enrichment obtained unjustly and the concurrence of intentionality or repetition will be taken into account".

Sanctions can be immediate (even for platforms)

Royal Decree 390/2021 does not include any lack to implement the obligation. Therefore, they confess from the Ministry, "the autonomous communities could already fine". And the sanctioning regime will not only be applied to owners, but also to platforms specialized in vacation rentals.

In their case, from the portfolio led by Teresa Ribera explain that "the usual thing would be to incur a slight infraction for not advertising the energy certificate of a home, because the regulations specifically oblige them to do so".

Article 17.3 establishes that "any natural or legal person who publishes or allows the publication of information on the sale or rental of a building or part of it, whether in real estate agencies, billboards, websites, real estate portals, catalogs, press or similar, shall be obliged to include information regarding its energy efficiency rating, in accordance with the provisions of the corresponding recognized document".

The sanctions can be imposed ex officio (that is, by the officials of the Ministry of Energy or Industry or the specific energy entity that may have an autonomy) or through a complaint from a citizen (for example, a tenant who detects that the energy certificate is not in the lease or any other consumer).

However, the Ministry also states that"the ultimate objective of both the Government and the Autonomous Communities is not the sanction. The first thing is to warn, inform and that the regulations are known in order to promote the improvement of buildings in terms of their energy efficiency (know how much is consumed and how much can be saved, improve the comfort situation of the house, rent a more comfortable apartment with less cost ...)".