Postponement of Implementation of the Final Phase of the AB 1103 Energy Disclosure Requirements for Nonresidential Buildings of 5,000 to 10,000 Square Feet
California Public Resources Code § 25402.10 (commonly referred to as " Assembly Bill 1103"or "AB 1103") states as follows:
(a) On and after January 1, 2009, electric and gas utilities shall maintain records of the energy consumption data of all nonresidential buildings to which they provide service. This data shall be maintained, in a format compatible for uploading to the United States Environmental Protection Agency's ENERGY STAR Portfolio Manager, for at least the most recent 12 months.
(b) On and after January 1, 2009, upon the written authorization or secure electronic authorization of a nonresidential building owner or operator, an electric or gas utility shall upload all of the energy consumption data for the account specified for a building to the United States Environmental Protection Agency's ENERGY STAR Portfolio Manager in a manner that preserves the confidentiality of the customer.
(c) In carrying out this section, an electric or gas utility may use any method for providing the specified data in order to maximize efficiency and minimize overall program cost, and is encouraged to work with the United States Environmental Protection Agency and customers in developing reasonable reporting options.
(d) (1) Based on a schedule developed by the commission pursuant to paragraph (2) an owner or operator of a nonresidential building shall disclose the United States Environmental Protection Agency's ENERGY STAR Portfolio Manager benchmarking data and ratings for the most recent 12-month period to a prospective buyer, lessee of the entire building, or lender that would finance the entire building. If the data is delivered to a prospective buyer, lessee, or lender, a property owner, operator, or his or her agent is not required to provide additional information, and the information shall be deemed to be adequate to inform the prospective buyer, lessee, or lender regarding the United States Environmental Protection Agency's ENERGY STAR Portfolio Manager benchmarking data and ratings for the most recent 12-month period for the building that is being sold, leased, financed, or refinanced.
(2) The commission shall establish a schedule by which an owner or operator is required to meet the requirements of this subdivision.
(e) Notwithstanding subdivision (d), this section does not increase or decrease the duties, if any, of a property owner, operator, or his or her broker or agent under this chapter or alter the duty of a seller, agent, or broker to disclose the existence of a material fact affecting the real property.
AB 1103 requires owners or operators of nonresidential buildings to disclose the U.S. Environmental Protection Agency's ("EPA") Energy Star Portfolio Manager benchmarking data and ratings for the most recent 12-month period to:
(1) a prospective buyer, no later than 24 hours prior to the execution of a purchase and sale agreement;
(2) a prospective tenant of an entire building, no later than 24 hours before execution of the lease;1 and
(3) a prospective lender providing financing secured by the entire building, with the submittal of the loan application.
The term "nonresidential building" is defined in California Public Resources Code § 25130 as any building that is heated or cooled in its interior, and is of an occupancy type other than Type H (generally, hotels, apartment houses, convents, and monasteries), Type I (generally, dwellings and lodging houses), or Type J (generally, private garages, carports, sheds, agricultural buildings, fences over 6 feet high, tanks, and towers), as defined in the Uniform Building Code, 1973 edition, as adopted by the International Conference of Building Officials. In order to obtain the information necessary to comply with the disclosure requirements, owners and operators of nonresidential buildings subject to the energy disclosure requirements must open or update an account on the EPA's Energy Star Program Portfolio Manager website (www.energystar.gov) no later than 30 days prior to the disclosure deadline. Once the account is opened or updated, owners and operators of nonresidential buildings must use the California Energy Commission's compliance website (www.energy.ca.gov) to complete and submit the compliance report.
AB 1103 became effective in phases. As of July 1, 2013, AB 1103 applied to nonresidential buildings with total gross floor area of more than 50,000 square feet. As of January 1, 2014, AB 1103 applied to nonresidential buildings with total gross floor area between 10,000 and 50,000 square feet.
With regard to nonresidential buildings with total gross floor area between 5,000 and 10,000 square feet, AB 1103 was to apply beginning on July 1, 2014. However, on September 2, 2014, the California Office of Administrative Law approved the California Energy Commission's emergency regulatory action to amend existing regulations to have AB 1103 apply to nonresidential buildings with total gross floor area between 5,000 and 10,000 square feet as of July 1, 2016. p
Footnote
1. With respect to leases, disclosure is not required for multi-tenant buildings per California Code of Regulations, Title 20, §1684.
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