A lease clause is not consent

Every landlord I work with now wants to know how much energy its tenants use. The reasons are good ones, and I want to begin with them before arguing that the commonest way of getting the data is a mistake.

Why landlords want the data

Investors and lenders increasingly ask landlords to report the actual energy consumption and emissions of the buildings they own, not just the consumption of the common areas the landlord supplies. Energy labels describe calculated performance; a landlord trying to judge whether a renovation plan is working needs measured figures for whole buildings. And a landlord preparing for the minimum performance standards that the recast EU directive on the energy performance of buildings will bring for the worst-performing non-residential stock wants evidence of which buildings perform worst in practice, not only on paper.

The difficulty is that much of this data does not belong to the landlord in any practical sense. In a multi-let office, many tenants hold their own electricity connections and supply contracts. Their consumption is recorded by meters whose data the network operator holds, and in the Netherlands, as in many European countries, that data is released to a third party only with the authorisation of whoever holds the connection. Even where the landlord owns the sub-meters, a tenant's consumption says a good deal about its business: when its staff work, roughly how many people it employs, whether it is running down an office before leaving. Where the tenant is a sole trader or a very small firm, the data may also relate to an identifiable person, and the General Data Protection Regulation applies.

Faced with patchy coverage, landlords have turned to the lease. A growing number of new commercial leases in the Netherlands and Belgium contain clauses in which the tenant agrees to provide its energy consumption, or to authorise the landlord to obtain it, for the life of the lease. Some of those clauses are carefully drafted and limited to reporting and improvement. Many are broad. I have read clauses granting the landlord access to all consumption data from all meters serving the premises for any purpose connected with managing the building, with no end date and no way for the tenant to narrow them.

I understand why. A landlord telling a pension fund that 34 per cent of its floor area lacks measured data will be asked why. A clause is cheaper than a conversation with each tenant, and once signed it appears to settle the matter.

What a clause gets wrong

In our experience it settles very little. In 2024 we compared two groups of buildings on our platform. In the first, landlords relied on lease clauses to obtain tenants' consumption; in the second, tenants had granted access through the consent process in our occupier product. Coverage of tenant consumption, measured as the share of tenant floor area with complete monthly data, was 52 per cent in the first group and 78 per cent in the second.

The reasons were mundane. A clause obliges the tenant, but it does not make anyone at the tenant act. The facilities manager who must authorise the network operator, or arrange access to a sub-meter, often does not know the clause exists. When the landlord's sustainability team chases the data a year later, it is asking a stranger to comply with a document someone else signed, and the request lands as an imposition. Tenants who feel watched also withhold the cooperation that produces savings: they stop reporting faults, they decline schedule changes and they send nobody to the meeting where the landlord proposes them.

There is a legal fragility too, which I would not ignore. A clause written before anyone knows how the data will be used sits uneasily with the principle that personal data should be collected for specified purposes and kept no longer than necessary. For most corporate tenants the data is not personal, but landlords rarely know in advance which tenants are small enough for it to be. I am not a lawyer, and our customers take their own advice. I do know that a product which assumes the clause is enough will eventually hold data it should not.

How we built consent into the product

We decided in 2023 that our platform would ingest no tenant's consumption without a consent the tenant had seen and could change. The decision cost us something. Two landlords asked us to load several years of tenant meter data obtained under lease clauses, and we declined until the tenants confirmed; one of them moved a portfolio of forty buildings to a competitor.

The consent itself is short. A tenant's facilities manager sees which meters are concerned, what the data will be used for, who will see it and how long we will keep it. Purposes are separate choices: reporting the building's total consumption, comparing the tenant's floors with similar ones, and detecting faults in the tenant's space. The tenant can grant all three, some or none, and withdraw any of them at any time, after which we stop collecting and delete the history, except for aggregated building totals the landlord has already reported. In practice 83 per cent of tenants who are asked grant all three purposes, and withdrawals are rare.

What made the difference was giving something back. Tenants who share their data see their own consumption against similar floors, and they see faults in their space that would otherwise appear only in the landlord's reports. The request becomes an exchange rather than an obligation, and the facilities manager has a reason to keep the data flowing when a meter is replaced or a contract changes.

None of this makes lease clauses useless. A clause that records an agreement to share data, for named purposes, through a process the tenant controls, is a sound foundation, and several of our customers now use one. What I argue against is the clause that tries to replace the process. A landlord who wants complete, current and lawful tenant data should spend less effort on the wording of the lease and more on the moment when a tenant's facilities manager is asked, clearly, to say yes.