LEGAL STUDY on efficient energy clauses in Eco-building sales
« Etude juridique sur les clauses d’efficacité énergétique en matière de VEFA (Vente en l’Etat Futur d’Achèvement) »
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ABSTRACT:
Author : Law firm ITHAQUE - AVOCATS, in relation to the Local Agence on Energy of Grand Lyon (Agence Locale de l’Energie -69)
October 2008
Context
To obtain levels of performances in sync with the objectives "CONCERTO", it is imperative to make sure besides the quality of the application, the effective management of the technical installations (boiler room, installations solar energy, ventilation). Within the framework of the program, it is suggested achieving a reflection on the conditions of implementation of a global management of the installations with an objective of energy performance and to make propositions to improve the step begun by the building firm Within the framework of its mission confided by the consortium, ALE wishes to lean on the legal competence of a capable PROVIDER of:
1. To bring a legal support to achieve this step
2. To Draft a part of service contracts integrating criteria of energy performance
Inventory
Within the framework of its mission, ITHAQUE, a lawyer’s firm had to:
1. To Participate 3 meetings of exchange with the owners (among whom two who will take place in PARIS),
2. to Establish propositions to maximize the consideration of the energy performance in the editorial staff of contracts
3. to Draft a part of service contracts integrating criteria of energy performance (legal shutter)
The lawyer so analyzed the susceptible written details " to shelter " the clauses of energy and problematic efficiency put by each of them : The sale’s documents, the contract of booking, the bill of sale, the statutes of the property owners’ syndicate which is going to manage buildings and co-owners.
The lawyer also looked at documents in link with the functioning of the co-ownership and its modalities of organization: the regulation, the conditions of contract of the property owners’syndicate.
Proposals and solutions
To respect the aforesaid objectives it is advisable to conceive a legal system susceptible to impose on the long term: Consumption of given energy
1. Device in aid of the co-owners:
The lawyer suggests drafting a charter who will be integrated into the contractual documents of sale. Indeed, the insertion of the charter in the regulation of co-ownership makes it "useful" mainly by the co-owners. It allows besides the building firm to engage the responsibility of such or such buyers in case of appeal to his place. The lawyer suggests finally inserting the objectives of consumption of energy into the paragraph "destination of the building" a new destination which could be that of building of effective house in energy.
2. Device in aid of the boss of the work (building firm)
CONCERTO program foresees fines in case of non compliance with the objective; it could be useful for the building firm to be able to transfer them on the tactless buyers. So, as far as the final payment of the European subsidy is made after the multiple controls foreseen by this last one until 5 years after the realization of the project, it can involve a first coercive means to make respect the performances to which committed the building firm.
On the other hand, after the payment of subsidies, no mechanism of restoration is foreseen in case the performances would not turn out corresponding to the objectives fixed by the European Community.
Building firm concerned by the operation should not thus make the expenses of the future evolution of buildings decided by the buyers; it is besides superfluous to foresee some mechanism of transfer towards.
