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 PainSmith
Solicitors Legal Updates
Energy
Performance Certificates in Let Property
SEE ALSO: Energy Performance Certificates for
rental property
SEE
ALSO: Building Energy Rating - Certificates in Ireland (BER)
and
Northern Ireland and
Scotland
SEE
ALSO: Diagnostic de Performance Energétique - DPE - France
by
Dr David Smith of Pain Smith Solicitors*
25th
September 2008
From
1 October 2008 residential let property will require an Energy
Performance Certificate (EPC). The provisions are part of
The Energy Performance of Buildings (Certificates and Inspections)(England
and Wales) Regulations 2007 SI 2007/991. This can be found
in full at www.opsi.gov.uk/si/si2007/uksi_20070991_en_1.
The
requirement is set out in regulation 5 which demands that
a prospective tenant be provided with an EPC at the earliest
opportunity and certainly prior to entering into any contract
to rent out the property.
The
regulation goes on to state that the certificate must be provided
at the earlier of the prospective tenant being provided with
written details about the building or the prospective tenant
viewing the building. If the prospective tenant consents the
certificate can be provided electronically, this presumably
includes provision via display on a website. Therefore the
key trigger point in most cases will be the provision of written
details to the tenant and it is probably worth attaching the
EPC to all written details.
EPCs
are provided by an approved Domestic Energy Assessor (DEA).
DEAs will need to undergo training and assessment by one of
a number of government-approved organisations and will then
need to pay an annual subscription to maintain their status.
Qualified surveyors do not automatically qualify as energy
inspectors but they will be able to qualify more easily.
Note
that the only requirement for let property is to provide an
EPC and that no other part of the HIPS regulations applies
to rental property. EPCs remain valid for 10 years or until
another certificate is produced for the same property.
Therefore
agents and landlords must make sure they always have the most
recent certificate on file. EPCs for sales have a shorter
lifespan of just 3 years. It is not wholly clear whether these
EPCs can be used for let property but there appears to be
no reason why a sales EPC cannot be reused for letting purposes
thereby giving it a new lease of life!
The
upshot is that from October 2008 agents will need to get EPCs
for properties that they are marketing to new tenants. As
the requirement is on marketing there should be no need to
get EPCs for current tenancies or renewals to the same tenants.
Equally, properties that have the tenancy agreement signed
prior to 1 October, even though the tenancy begins after 1
October should not require an EPC as they will be off the
market before the regulations take effect. The EPC will then
need to be renewed every ten years. Where properties enter
the market prior to 1 October the position is a little less
clear.
The
government has recently stated that they take the view that
properties on the market after 1 October 2008 will definitely
be in need of an EPC although they have stated that there
will be a degree of latitude in allowing these properties
to get a certificate as soon as reasonably possible rather
than requiring one immediately on October 1st.
Agent
should note however that the requirement to have an EPC before
the contract is signed is a strict one however.
There
is absolutely no requirement for the EPC to be at a specific
level, for the landlord to seek to improve the rating, or
for the tenant to be compensated for a poor rating. Landlords
who wish to improve their rating should concentrate primarily
on boilers and insulation making sure that they have the most
efficient condensing combination boiler available and ensuring
that all parts of the property are insulated to minimum building
regulations standards. The rating system produces a far greater
effect for installation of items than it does for their improvement,
so installing insulation where there is none will produce
a greater effect than adding more.
In
terms of the practical position there will be a large number
of EPCs required as the regulations come into force and this
will then tail off after a few months as many properties coming
onto the market will have their own EPCs already from previous
sale or rental.
Agents
will need to consider the best way to deal with the initial
spike and then how they will handle matters long-term. Most
agents will be best to contact their HIPs provider (if they
have a sales arm) or make an arrangement with an energy inspector
in their area. Larger agents, who anticipate a significant
volume of work, may be better to consider employing an energy
inspector 'in-house' on a short-term contract to cover the
initial rush and then contract the work out once this has
been dealt with.
Not
having a certificate is a criminal offence punishable by a
fine. This is enforced by local authority Trading Standards
departments. On balance, they are unlikely to take aggressive
action on those who mistakenly fall foul of the legislation
provided they come into line swiftly once they have been warned.
Agents
should put suitable clauses into their Terms of Business and
Tenancy Agreements to cover this situation. Suggested samples
are available in our Document Vault for Helpline subscribers
or to purchase.
Remember
that this only applies to residential properties available
for letting. The rules for commercial properties and properties
for sale are totally different.
©PainSmith
Solicitors 2008
*Dr
David Smith is a trainee solicitor with PainSmith Solicitors,
a niche practice specialising in residential landlord and
tenant law.
PainSmith
Solicitors Legal Advisors are provided for information only
and are not legal advice. If you do have a legal problem,
you should talk to a lawyer or adviser before making a decision
about what to do.
PainSmith
Solicitors Legal Updates are provided for information only
and are not legal advice. If you do have a legal problem,
you should talk to a lawyer or adviser before making a decision
about what to do. You may wish to use the CLS/CDS Directory
(www.justask.org.uk/public/en/directory) to locate an adviser.
The information provided here is written for people resident
in, or affected by, the laws of England and Wales only. You
should note that date given in the update and be aware that
the information given may become inaccurate due to changes
in the law or its implementation.
28
August 2008
by
Dr David Smith of Pain Smith Solicitors*
From
1 October 2008 residential let property will require an Energy
Performance Certificate(EPC). The provisions are part of The
Energy Performance of Buildings (Certificates and Inspections)(England
and Wales) Regulations 2007 SI 2007/991.
This
can be found in full at http://www.opsi.gov.uk/si/si2007/uksi_20070991_en_1
The
requirement is set out in regulation 5 which demands that
a prospective tenant be provided with an EPC at the earliest
opportunity and certainly prior to entering into any contract
to rent out the property. The regulation goes on to state
that the certificate must be provided at the earlier of the
prospective tenant being provided with written details about
the building or the prospective tenant viewing the building.
If the prospective tenant consents the certificate can be
provided electronically, this presumably includes provision
via display on a website. Therefore the key trigger point
in most cases will be the provision of written details to
the tenant and it is probably worth attaching the EPC to all
written details.
EPCs
are provided by an approved Domestic Energy Assessor (DEA).
DEAs will need to undergo training and assessment by one of
a number of government-approved organisations and will then
need to pay an annual subscription to maintain their status.
Qualified surveyors do not automatically qualify as energy
inspectors but they will be able to qualify more easily.
Note
that the only requirement for let property is to provide an
EPC and that no other part of the HIPS regulations applies
to rental property. EPCs remain valid for 10 years or until
another certificate is produced for the same property. Therefore
agents and landlords must make sure they always have the most
recent certificate on file.
The
upshot is that from October 2008 agents will need to get EPCs
for properties that they are marketing to new tenants. As
the requirement is on marketing there should be no need to
get EPCs for current tenancies or renewals to the same tenants.
The EPC will then need to be renewed every ten years. Where
properties enter the market prior to 1 October the position
is a little unclear. Experience from the introduction of HIPs
suggests that there will be no need to produce EPCs for these
properties but the regulations do not say this specifically
and so it would be safest to get an EPC for all properties
on the market after 1 October.
There
is absolutely no requirement for the EPC to be at a specific
level, for the landlord to seek to improve the rating, or
for the tenant to be compensated for a poor rating. Landlords
who wish to improve their rating should concentrate primarily
on boilers and insulation making sure that they have the most
efficient condensing combination boiler available and ensuring
that all parts of the property are insulated to minimum building
regulations standards. The rating system produces a far greater
effect for installation of items than it does for their improvement,
so installing insulation where there is none will produce
a greater effect than adding more.
In
terms of the practical position there will be a large number
of EPCs required as the regulations come into force and this
will then tail off after a few months as many properties coming
onto the market will have their own EPCs already from previous
sale or rental. Agents will need to consider the best way
to deal with the initial spike and then how they will handle
matters long-term. Most agents will be best to contact their
HIPs provider (if they have a sales arm) or make an arrangement
with an energy inspector in their area. Larger agents, who
anticipate a significant volume of work may be better to consider
employing an energy inspector 'in-house' on a short-term contract
to cover the initial rush and then contract the work out once
this has been dealt with.
Not
having a certificate is a criminal offence punishable by a
fine. This is enforced by local authority Trading Standards
departments. On balance, they are unlikely to take aggressive
action on those who mistakenly fall foul of the legislation
provided they come into line swiftly once they have been warned.
Agents
should put suitable clauses into their Terms of Business and
Tenancy Agreements to cover this situation. Suggested samples
are available in our Document Vault for Helpline subscribers
or to purchase.
©PainSmith
Solicitors 2008*
29
January 2008
by
Dr David Smith of Pain Smith Solicitors*
Energy
Performance Certificates in Let Property Many landlords and
agents will be aware that property that is for sale in England
& Wales requires an Energy Performance Certificate (EPC) to
be supplied to the purchaser as part of the Home Information
Pack (HIP). This requirement will be applied to let property
during the course of 2008, both residential and commercial
The
provisions are part of The Energy Performance of Buildings
(Certificates and Inspections)(England and Wales) Regulations
2007 SI 2007/991. This can be found in full at http://www.opsi.gov.uk/si/si2007/uksi_20070991_en_1.
The
requirement is set out in regulation 5 which demands that
a prospective tenant be provided with an EPC at the earliest
opportunity and certainly prior to entering into any contract
to rent out the property. The regulation goes on to state
that the certificate must be provided at the earlier of the
prospective tenant being provided with written details about
the building or the prospective tenant viewing the building.
If the prospective tenant consents the certificate can be
provided electronically.
Commercial
properties with a useful floor area of more than 1,000 sq
metres which are occupied by public authorities or institutions
providing public services are also required to produce a Display
Energy Certificate which must be prominently displayed in
the premises. This is unlikely to be an issue for readers
of this update. EPCs are provided by accredited energy inspectors
as they are for HIPs. Note that a domestic energy inspector
cannot provide a commercial EPC and vice versa. Energy Inspectors
will need to undergo training and assessment by one of a number
of government-approved organisations and will then need to
pay an annual subscription to maintain their status. Qualified
surveyors do not automatically qualify as energy inspectors
but they will be able to qualify more easily.
Note
that the only requirement for let property is to provide an
EPC and that no other part of the HIPS regulations applies
to rental property. EPCs remain valid for 10 years or until
another certificate is produced for the same property. Therefore
agents and landlords must make sure they always have the most
recent certificate on file.
The
regulations come into force for commercial premises with a
useable floor area in excess of 500 sq metres on 6 April 2008
and for all other premises, including residential properties,
on 1 October 2008. There have been suggestions that these
provisions may be delayed but this will most likely only be
done for the April date and there is unlikely to be any delay
over introduction of EPCs for residential lets. The upshot
is that from October 2008 agents will need to get EPCs for
properties that they are marketing to new tenants. There will
be no need to get EPCs for current tenancies or renewals to
the same tenants. The EPC will then need to be renewed every
ten years.
In
terms of the practical position there will be a large number
of EPCs required as the regulations come into force and this
will then tail off after a few months as many properties coming
onto the market will have their own EPCs already from previous
sale or rental. Agents will need to consider the best way
to deal with the initial spike and then how they will handle
matters long-term. Most agents will be best to contact their
HIPs provider (if they have a sales arm) or make an arrangement
with an energy inspector in their area. Larger agents, who
anticipate a significant volume of work may be better to consider
employing an energy inspector 'in-house' on a short-term contract
to cover the initial rush and then contract the work out once
this has been dealt with
©PainSmith
Solicitors 2008*
*Dr
David Smith is a trainee solicitor with PainSmith Solicitors,
a niche practice specialising in residential landlord and
tenant law.
PainSmith
Solicitors Legal Advisors are provided for information only
and are not legal advice. If you do have a legal problem,
you should talk to a lawyer or adviser before making a decision
about what to do.
PainSmith
Solicitors Legal Updates are provided for information only
and are not legal advice. If you do have a legal problem,
you should talk to a lawyer or adviser before making a decision
about what to do. You may wish to use the CLS/CDS Directory
(www.justask.org.uk/public/en/directory) to locate an adviser.
The information provided here is written for people resident
in, or affected by, the laws of England and Wales only. You
should note that date given in the update and be aware that
the information given may become inaccurate due to changes
in the law or its implementation.
17
March 2008
by
Natalie Lewis of Pain Smith Solicitors*
Energy
Performance Certificates Update - Commercial Properties
Many
agents and landlords will be aware there have been rumours
circulating over the past couple of weeks that the requirement
for properties to have an Energy Performance Certificate has
been delayed.
The
requirement for commercial properties to have an Energy Performance
Certificate was due to come into force on 6 April 2008, however,
this appears to have been delayed.At present it is not clear
as to when this will come into force.
The
reason for this delay is that there appears to be insufficient
numbers of trained energy assessors, particularly at the higher
levels dealing with more complex buildings.
In
regards to residential properties the requirement for properties
to have an Energy Performance Certificate is still due to
come into force on 1 October 2008. There does not appear to
be any information circulating that this will be delayed.
It is highly unlikely that this date will be pushed back at
all, because the Energy Performance Certificates that are
required for let property are the same as for properties for
sale, which are already required to have a Certificate.
There are significant numbers of Domestic Energy Assessors
qualified and more in training so the need is anticipated
to be fulfilled easily. Another reason why it is unlikely
to be delays in the introduction of residential EPC's is that
the process must be in place by January 2009 or England and
Wales will be in breach of European Directives, which these
measures are intended to bring into force.
As commercial properties are not the main concern of the readers
of this update it is unlikely that there will be any effect
on when you need to ensure the property has an Energy Protection
Certificate. Natalie Lewis is a paralegal with PainSmith Solicitors,
a niche practice specialising in residential landlord and
tenant law.
©PainSmith
Solicitors 2008*
*PainSmith
Solicitors Legal Advisors are provided for information only
and are not legal advice. If you do have a legal problem,
you should talk to a lawyer or adviser before making a decision
about what to do.
PainSmith
Solicitors Legal Updates are provided for information only
and are not legal advice. If you do have a legal problem,
you should talk to a lawyer or adviser before making a decision
about what to do. You may wish to use the CLS/CDS Directory
(www.justask.org.uk/public/en/directory) to locate an adviser.
The information provided here is written for people resident
in, or affected by, the laws of England and Wales only. You
should note that date given in the update and be a
See
also:
________________________________
*See
also Section 13 Notices and Is the deal closed? The
use of the 'Subject to Contract' formula- For
full article Click
Here
________________________________
*See
also Safety Glass and Defective Premises Act - The
Information on a Court of Appeal decision (7th February 2007)
regarding the Defective Premises Act 1972 For full article
Click
Here
________________________________
*See
also Implementation of the Regulatory Reform (Fire Safety)
England & wales) Order 2005 Click
Here
________________________________
*See
also Understanding
Business Tenancies June 2007 Click
Here
________________________________
*See
also Duty of Landlords To Mitigate Loss Click
Here
__________________________
See
also Arbitration - April 2008 - by David Smith - Pain Smith
Legal update Click here
*
Articles
courtesy of PainSmith
Solicitors are a niche practice specialising in Landlord and
Tenant Law. Based in Medstead in Hampshire, they are ideally
situated to provide an efficient service to clients nationwide
as well as those based in Central London and the Home Counties.
See
also:
Statutory
code of Practise on racial equality in housing
ARLA’s
Response to the Law Commission Report - August 2008 and
The
Law CommissionHousing: Encouraging Responsible Letting
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