The introduction of the Building Energy Efficiency Disclosure
Act 2010 (Cth) (the Act) created a scheme
promoting the disclosure of information about the energy efficiency
of commercial office buildings.
Such disclosure is to be in the form of a Building Energy
Efficiency Certificate (BEEC) which sets out,
an energy efficiency rating; and
a lighting energy efficiency assessment,
of the Building or area of the Building, and broadly speaking,
is required where an owner or lessor offers commercial office
premises with a Net Lettable Area of 2,000sqm or more for sale,
lease or sub-lease.
Unsolicited Offer Regime
It was recognised that procuring a BEEC involves both time and
cost. As a result, by way of the Building Energy Efficiency
Disclosure Amendment Act 2015 (Cth) (the Amending
Act), a regime to assist Building owners in
circumstances where it receives an 'unsolicited offer'
was established (the Regime).
The Regime captures the following scenario:
An owner, without any steps on their behalf,
is approached by another party with an offer to purchase,
lease or sub-lease;
As a result of the this approach, they progress negotiations
with a view to formalising an arrangement.
In order to avoid the obligation to obtain and provide a BEEC, a
Building owner or lessor can apply for an exemption pursuant
to section 17(3)(c) of the Act. The Amending Act sets out the
criteria under which an exemption from the
mandatory disclosure obligations may be granted. In addition,
the Australian Government has since released specific
guidelines (accessible here) to resolve some
uncertainty aroused by the Amending Act. We summarise the key
aspects on what is required for an exemption:
The prospective purchaser/lessee/sub-lessee (as the case may
be) is required to waive their rights to receive a BEEC;
The exemption is limited to only those parties (i.e. it is not
Within the preceding 3 months,
another exemption must not have been granted, and negotiations with another party
cannot have occurred.
The exemption is valid for 12 months, although a further 12
month extension may be sought.
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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