Liability of energy consultants – Behind the term “energy consultant” there is no legally recognised profession like the “building energy consultant” (HWK). As a result, quality standards are often disregarded. Fraudsters abound in the energy consultant sector. Repairing the resulting damage can cost households hundreds of euros.
Building owners should ask energy consultants whether or not they have professional liability insurance.
There are several government-funded renovation initiatives that require expert guidance. Grants and low-interest loans are only available to those who seek advice from an expert before starting a building project and commission the expert to accept the finished product.
But what happens if this expert is wrong? Then the builders usually have a bad hand. In the worst case, the public prosecutor’s office will investigate them for possible subsidy fraud and demand repayment of the money received.
Why are energy consultants hired?
Advisory services are essential for the success of today’s publicly funded building and conversion projects. The more complex the measures become, the more advice is needed.
In order to receive federal funding for construction or renovation measures, building owners must have their consultants included in the federal government’s energy efficiency expert list. Of course, this also has financial implications, for example because of the time-consuming documentation.
These costs must be borne by the property owners. And so some building owners try to cut costs wherever they can. Also by foregoing expensive services such as consulting and government subsidies. Comparable cheaper consulting services by energy consultants therefore seem rather attractive.
Energy consultant liability – who bears the risk for mistakes?
The energy consultant’s culpability in the context of energy planning, energy forecasting and the preparation of energy performance certificates depends on whether or not he is paid for the accuracy of his forecasts.
The liability classification of the underlying contractual obligation and the specific legal circumstances of the place where the energy consultant provides his advice are important factors to consider.
In the absence of an explicit contractual agreement, the energy consultant is liable to the building owner. And this is the case when the consultant accompanies the implementation of the energy measures he advises.
Many energy consultant firms operate on the market without sufficient liability insurance, so that clients are exposed to risk in the event of incorrect advice. Energy consultant liability: The building owner can sue the consultants for damages if something goes wrong. However, it is anything but certain to receive any compensation.
Even in the case of freelance architects and consulting engineers, the compulsory liability insurance does not always cover incorrect advice. This type of liability insurance, which also covers advice, is often only taken out by state-approved consultants. Below are some recommendations that our lawyers give to builders and renovators.
As soon as you start working with your advisors, you should inquire about and obtain proof of appropriate liability insurance. Building owners should also bear this in mind. In particular, they will need to sign a document confirming that all funding has been properly spent. If this is not the case, problems can arise.
The public prosecutor’s office investigates possible subsidy fraud if there is evidence that the building owners knew about the poor advice or execution and kept the money anyway. Because this is a criminal offence, not a trivial offence.
Limitations of liability for energy consultants
To avoid legal trouble when it comes to liability from an energy consultant or advisor, the right precautions must be taken. The calculation can be based on various uncertainty factors. These in turn depend on external influences.
That is why it is important that the energy consultant makes it clear that the calculation model on which his advice is based is only an estimate. It is not, however, a calculable future performance of the energy measures used, such as a solar system.
To stay with this example: The sunshine hours used as a benchmark are influenced by weather conditions, for example. Not only the soiling of the system’s surface must be taken into account, but also possible shading by nearby buildings or vegetation. The possibility of technically induced power outages must also be taken into account.
In addition, deviations from the predictions can occur due to yield losses caused by operational disturbances or poor management. The energy consulting company preparing the yield forecast should document the aforementioned possibilities of error. It may also include such conditions in its general terms and conditions.
Wrong advice & misprognoses – what about the liability of energy consultants?
The price of bad energy advice for the customer can be that expensive repairs become necessary. Heating costs can also rise as a result and even state subsidies have to be paid back in some cases. After an unsuccessful energy renovation, a house can also become uninhabitable.
The actual yield of energy refurbishment measures is sometimes lower than the figures calculated in the forecast. This is possible if the figures used in the calculation are wrong. In this case, the question arises as to whether or not those affected can pursue legal remedies, especially claims for damages.
A supreme court ruling on the question of the responsibility of solar specialists in yield forecasts for photovoltaic systems, for example, has not yet been issued. For consulting errors in the context of yield forecasts for other investment objects, on the other hand, one can be guided by the case law of the Federal Supreme Court.
Accordingly, the client can terminate the primary project contract and the associated contractual relationship. Energy consultant liability: A claim for damages for lost profit can also arise from the consultancy contract. It should be noted that the claims may only become time-barred after 10 years.
Limitation of actions Energy consultant’s liability
In the case of a service contract, the client usually has three years to make a claim for damages under the contract. The limitation period runs from 31 December of the year in which the client first became aware of the circumstances giving rise to the claim.
Regardless of when the injured party first becomes aware of the damage, however, the limitation period should begin no later than 10 years after the claim for damages arises.
In contrast, a limitation period of two years often applies to claims arising from warranties under contracts for work and services, and five years to claims arising from warranties for construction planning services, starting from the acceptance of the planning services.
This also includes claims for damages under the contract for work and services. Shorter limitation periods are therefore an advantage for the energy consultant in a contract for work and services.
The advantage of a service contract, on the other hand, is that the energy consultant is only liable for consulting errors in the event of poor performance and only if he is at fault.
Obligation to pay damages to third parties
If the agreement between the energy consultant and the client on the preparation of the energy performance certificate qualifies as a contract with protective effect in favour of third parties, the energy consultant may be liable under the contract to the buyer or tenant of the building who is not a contractual partner of the energy consultant.
This would be the case if:
- the third party comes into contact with the issued Energy Performance Certificate in the same way as the Client,
- the client has a valid reason to take the interests of the third party into account,
- the energy advisor can readily recognise the proximity of the third party to the service provider and creditor, and
- the third party is in need of protection.
Pursuant to §§ 311 (3), 241 (2) BGB, the issuer of an energy performance certificate may be liable to the third party if the issuer claims reliance up to a certain amount and significantly impairs the performance of the contract between the client and the third party.
In principle, so-called financial reports also fall under this third-party liability, but whether an energy certificate carries the same weight is disputed.
German Energy Agency certifies energy consultants
If an energy consultant issues an energy certificate in accordance with the Energy Saving Ordinance (EnEV) and the certificate is issued incorrectly, the energy consultant can be held liable for damages not only by his client, the builder, seller or landlord of a building, but also by a third party, the buyer or tenant of the building.
For example, due to incorrect calculation or incorrect use of the data basis, Concerned homeowners can – in order to prevent this – search for suitable experts in advance via a database of the German Energy Agency (DENA). Only those providers who have attended a special training course for energy consultants are considered.
Compensation for breach of contract
Since the energy certificate is likely to be subject to the law on contracts for work and services according to the delimitation described above, and the energy consultant is responsible for the correctness of the certificate, the energy consultant could be liable for damages to his client according to the regulations on liability for defects in work and services according to § 634 No. 4 BGB.
If, for example, a building is sold with an incorrect energy certificate and the buyer withdraws from the purchase contract, or if unnecessary modernisation measures and bad investments are made as a result, the seller may be liable for damages.
Even if the energy certificate was issued incorrectly, the customer may have a claim for supplementary performance according to § 634 No. 1 BGB.
Energy consultant liability: if a third party is harmed
However, the client or a third party must have suffered damage. This is typically the case if the issuer and the buyer have agreed on the content of the energy certificate, as would be the case in a real estate purchase contract.
However, it should be mentioned that there may be a tacit agreement on the condition even if there is no explicit agreement, provided that the energy performance certificate is regarded as a decision-making aid before the end of the contract.
Damages would be excluded if there was no agreement on condition. However, the arguments described above can still be used to affirm damage.
There must first be a defect
In order for the client or a third party to be able to claim damages, there must be fault on the part of the issuer of the energy performance certificate. This can be the case if the issuer of the energy performance certificate does not take sufficient precautions and, contrary to § 17 para. 5 sentence 5 EnEV, includes the owner’s data in his calculations although he has reason to doubt their truthfulness.
If the issuer incorrectly bases the calculation results on §§ 18 and 19 EnEV, he may also have acted negligently.
An exception: yield forecasts
Consultant liability takes on a special form in the case of inaccurate yield forecasts. Liability under a consultancy contract may apply in such cases, even if a consultancy contract has not been expressly concluded, but this is evident from the conduct of the parties and the circumstances, such as in the case of a project contract.
Companies that specialise in solar installations and provide yield forecasts in the early stages of a photovoltaic project are particularly susceptible to this constellation.
Even if the focus of the contract is on the installation of a photovoltaic system, a tacit consulting contract may arise if, for example, the solar specialist company advises with a cost and yield forecast in order to accelerate the conclusion of the project contract.
Liability of energy consultants: Lawyers help in case of damage
Did you hire an energy consultant but did not get what you expected? Or have you lost money because of bad advice? Our Herfurtner law firm will examine the specifics of your case and give you an honest assessment of your alternatives and the likelihood of receiving financial compensation.
Please contact us and tell us about your experience. Enquire with us and we will check whether there is liability on the part of the energy advisor in your situation.