Who is affected?
You are likely to be affected by the Commercial Building Disclosure (CBD) Program if you are:
- a building owner who is selling or leasing office space with a net lettable area of 2000 square metres (1000 square metres from 1 July 2017) or more
- a tenant who is subleasing part of your tenancy with a net lettable area of 2000 square metres (1000 square metres from 1 July 2017) or more
- a real estate agent who is advertising office space with a net lettable area of 2000 square metres (1000 square metres from 1 July 2017) or more
- a CBD accredited assessor who must comply with the conditions of accreditation, conduct of assessments and use of information gathered from building owners and tenants.
Also affected are potential buyers or lessees of office space of 2000 square metres (1000 square metres from 1 July 2017) or more—because having consistent and meaningful information about the building’s performance makes it easier for you to buy or rent more energy efficient office space.
Whether or not you are affected depends on:
- what type of entity owns or leases the office space
- the nature of the office space
- the nature of the proposed transaction for the office space (for example, proposed sales and leases).
Application to constitutional corporations
The Building Energy Efficiency Disclosure Act 2010 (the Act) applies to 'constitutional corporations' that own or lease a disclosure affected building, or disclosure affected area of a building. The Act defines a constitutional corporation as a corporation to which paragraph 51 (xx) of the Constitution applies, namely ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’.
If you are unsure whether you or your client is a constitutional corporation, you should seek legal advice.
What about owners and tenants who are not constitutional corporations?
The obligations under the Act do not generally apply to building owners and tenants who are not constitutional corporations (called non-corporate entities). This includes, for example, a ‘natural person’ (individual), a government department, or members of a partnership who own a building that they wish to sell or lease.
Non-constitutional corporations do not have to comply with section 11 of the Act (no sale, lease or sublease without a BEEC) or section 15 of the Act (advertisements to include energy efficiency ratings).
However, under section 12 of the Act (rights of prospective buyer, lessee or sublessee) an entity which is not a constitutional corporation may be required to disclose a valid, current BEEC. Under section 12, if a constitutional corporation is looking to purchase, lease or sublease a disclosure affected building, or disclosure affected area of a building, it has the right to require the owner or lessee to provide them with a copy of a current, registered BEEC.
Furthermore, under section 18 of the Act (Information gathering) an entity which is not a constitutional corporation may be required to provide access or information to a CBD accredited assessor who has been engaged to assess a building, or an area of a building, for the purposes of applying for a BEEC.
Similarly, under section 49 of the Act (Secretary may obtain information or documents) an entity which is not a constitutional corporation may be required to provide information or documents to the Secretary of the Department of the Environment and Energy (or their delegate) if the Secretary reasonably believes that the entity has information or documents relating to whether a civil penalty provision has been complied with.
For more information, see How do I comply?
Where to from here?
Find out more