KMU Magazin No. 1/2, February 2025 Green building Overview with a focus on Condominiums

Ecological, or “green”, building is associated with many challenges. An even more differentiated approach is required for condominiums. This article documents an overview.

According to Wikipedia, ecological building, which is also referred to internationally as “green building”, is the comprehensive study of the interactions between people, their built environment and ecosystems, with the aim of leaving a livable and intact environment for future generations. The topic of sustainable building is closely related to this.

According to the Coordination Conference of the Building and Real Estate Bodies of Public Building Owners (KBOB), sustainability in the construction sector encompasses a wide range of aspects such as climate protection and adaptation, the circular economy, the promotion of biodiversity and building culture as well as the consideration of life cycle costs.

Spatial planning law

Green building encompasses many aspects. One of these is the self-sufficient generation of electricity, for example by means of solar power systems on the roof of a building. In this regard, Art. 18a, para. 1 of the Federal Spatial Planning Act (Spatial Planning Act, SPA) stipulates that in building and agricultural zones, appropriately adapted solar installations on roofs do not require a building permit under Art. 22, para. 1 SPA. Such projects only have to be reported to the relevant authority. Article 32a of the Spatial Planning Ordinance (RPV) regulates the details and defines the conditions under which a solar installation on a roof is considered sufficiently adapted.

If the necessary requirements are met, a concession is granted because a building permit procedure does not have to be followed. This means that no objection can be raised against the corresponding permit-free solar installation, which in turn means that such construction projects can be implemented quickly.

Another aspect of green building is reducing the energy consumption of the corresponding buildings. This can be achieved, for example, by installing good thermal insulation to reduce heating costs. The cantons provide various funding instruments for this, such as an energy bonus in the form of an increase in the site occupancy index. If certain conditions are met, new buildings may be built larger than would be permitted in the corresponding zone.

An energy bonus is also often provided for conversions. For example, the plot ratio for conversions increases if the new-build limit value of the Swiss standard SN 520 380/1 (2016 edition) for heating requirements or a Minergie certification is achieved. The eligible building area is also often offset by a corresponding increase in the plot ratio when retrofitting thermal insulation.

What can be built is largely determined by municipal and cantonal building laws. It is therefore advisable to consult cantonal specialists. In some cases, their services are even financed by the public sector. It is therefore worthwhile to inquire in advance with the relevant municipal authorities.

Energy law

In connection with the energy efficiency of buildings, the cantonal energy laws are primarily decisive. As a general rule, they should promote the economical, efficient and sustainable use of energy. This is to be achieved in particular by

• a. increased use of domestic and renewable energies and waste heat,
• b. the construction, operation, renovation and maintenance of buildings and facilities with the lowest possible energy consumption and energy losses, and
• c. the use of state-of-the-art and economically viable technologies.

For this reason, cantonal energy laws usually specify the minimum requirements for energy use in buildings. Buildings and building services must usually be constructed, operated and maintained in such a way that as little energy as possible is lost. The winter and summer heat insulation, the technical building systems and the use of electricity in buildings must correspond to the state of the art. This also applies to building renovations above a certain threshold. This is often reached when the construction costs exceed 30 percent of the building insurance value.

This means that energy-related measures must be taken when renovating buildings that reach the relevant construction costs. These measures affect the building envelope and the building services. For example, it is stipulated that the potential for electricity generation must be exploited appropriately in buildings that require heating, ventilation, cooling or humidification, or when renovating a roof.

If a renovation or new construction is planned, it is therefore advisable to clarify the applicable requirements in good time. The involvement of appropriate specialist planners is essential from a certain volume onwards. This is not least because the systems that may be required in operation have a complexity that should not be underestimated.

The condominium

Many condominiums in Switzerland are already getting on in years and the question of renovation arises. In particular, energy-efficient and thus green renovation is an issue. New heating, better thermal insulation or even the construction of a solar energy system for the power supply are often discussed. Let us assume that the question of better thermal insulation of the exterior walls and a solar energy system on the roof arises.

Both the thermal insulation of the exterior walls and the solar panels on the roof are structural measures. The roof and the exterior walls of the building are common parts. These structural measures thus affect the common parts of the condominium property. Structural measures to the common parts may only be carried out with the consent of the condominium owners' association. But how, or rather with which quorum, must the agreement be given?

The construction measures can be subdivided into necessary, useful or beautifying and convenience-enhancing measures (Art. 647c to Art. 647e ZGB).

Necessary construction measures include maintenance, restoration and renovation work that is required to preserve the value and usability of the property. This work can be carried out with the consent of the majority of all co-owners (Art. 647c ZGB). A simple majority is therefore sufficient.

Renovation and conversion work that is intended to increase the value or improve the economic efficiency or usability of the property requires the consent of the majority of all condominium owners, representing at the same time the larger part of the property (Art. 647d para. 1 ZGB). A qualified majority is therefore required. However, it should be noted that changes that significantly and permanently impede or render uneconomical the use or enjoyment of the property by a condominium owner for its previous purpose can only be carried out with the owner's consent (Art. 647d para. 2 ZGB).

Furthermore, the law states that if the change requires a condominium owner to incur expenses that are unreasonable for him, in particular because they are disproportionate to the value of his share, it can only be carried out without his consent if the other condominium owners assume his share of the costs to the extent that it exceeds the reasonable amount (Art. 647d para. 3 ZGB).

However, building work that serves only to beautify the property, improve its appearance or make it more convenient to use may, in principle, only be carried out with the consent of all the condominium owners (Art. 647e para. 1 ZGB). However, there is an exception here. This work may also be carried out against the will of a non-consenting condominium owner with the consent of the majority of all condominium owners, who also represents the greater part of the matter, provided that the non-consenting condominium owner is not permanently impaired in his right of use and enjoyment and the other condominium owners compensate him for a merely temporary impairment and assume his share of the costs (Art. 647e para. 2 ZGB).

Green renovation

What about green building and green renovation? Here, it is important to distinguish whether and which legal requirements exist. If there are no mandatory requirements regarding energy-efficient renovation measures, for example, a solar power system does not, in our view, fundamentally constitute a necessary structural measure, even if it does not require a building permit. We believe that it should be qualified as a useful measure. Its approval therefore requires a qualified majority.

Improved insulation should not be classified as a necessary structural measure per se, but as a useful measure. Its approval therefore also requires a qualified majority.

Green renovation, even if it is promoted in spatial planning legislation, cannot be qualified as a necessary structural measure per se, since it does not constitute maintenance, restoration or renewal work that is necessary to preserve the value and usability of the property. In our opinion, green renovations are in themselves renovation and conversion works that aim to increase the value or improve the economic efficiency or usability of the property. In this respect, a great deal of persuasion is required to get a project like this approved, as a qualified majority must be achieved.

However, the situation is different if, for example, energy-related renovation measures are mandatory under the Energy Act or another law. If the Energy Act, for example, requires that a solar energy system be installed when a roof is renovated, and if the roof renovation is a necessary measure, then the legally mandatory solar energy system is also a necessary construction measure.

Conclusion

Green building entails many challenges. This is true not only in terms of the construction volume, but also with regard to the required energy efficiency of buildings. With timely expert advice, green building can not only be made more economically interesting, but such expert advice is also likely to avoid future problems in the operation and maintenance of green buildings. Green building requires careful and timely planning, even for individuals. This is even more important for communities of condominium owners, since not only the construction but also the decision-making process in the community must be planned. Here, too, the earlier and more thoroughly all owners are taken on the “green journey”, the more benefits can be achieved and the less energy is wasted on unnecessary discussions.