From 1 November 2011 transitional provisions of the Building
Energy Efficiency Disclosure Act 2010 (Cth) (BEED
Act) give way to full obligations. The provisions require
a corporation that owns a building considered to be 'disclosure
affected' under the BEED Act to have and register a current
Building Energy Efficiency Certificate (BEEC)
where the building is being marketed for sale or lease. Lessees of
disclosure affected buildings or parts of buildings will also have
requirements in relation to subletting.
At this stage the circumstances in which a building or part of a
building will be considered 'disclosure affected' are
restricted by size and use. The building or part of a building must
have a net lettable area of at least 2000m2 and over 75% of the
space must be used (or capable of being used) as a commercial
office. Whilst there has been some discussion about extending the
scope of the BEED Act to hotels, retail centres, educational
institutions and hospitals, the Department of Climate Change and
Energy Efficiency (Department) has confirmed that
a decision on this issue will be deferred until at least 2014. An
exemption may be granted for a disclosure affected building used by
police or for security options, is new, or has undergone major
During the transitional period until 31 October 2011 it was only
necessary for corporations to provide NABERS environmental ratings
for base or whole buildings to potential purchasers and lessees
under the BEED Act. However, from 1 November 2011 both NABERS
rating information as well as a tenancy lighting assessment will be
required before the Department will issue a BEEC. BEECs and their
constituent components remain valid for up to one year. BEECs may
only be applied for by a Commercial Building Disclosure Accredited
Assessor and may take as long as 12 weeks to be issued.
The Department will strictly enforce compliance with the
requirements of the BEED Act. In this regard, not only should
clients who own or lease disclosure affected buildings ensure that
they understand the requirements of the BEED Act and how a BEEC can
be obtained, they must also consider how the requirements of the
BEED Act may affect sale or lease transactions relating to their
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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