IMPORTANT: FROM 9 JANUARY 2013 SEE THIS ARTICLE. THE ARTICLE BELOW NO LONGER APPLIES AFTER THAT DATE.
From 6 April 2012, changes are being made to the regulations which govern energy performance certificates.
The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment) Regulations 2011 and The Energy Performance of Buildings (Certificates and Inspections)(England and Wales)(Amendment) Regulations 2012 amend the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 (no link because they are quite out of date on legislation.gov.uk)
There is currently disparity between properties for sale, rent residential and commercial regarding timescales for ordering and obtaining an EPC.
The amendments particularly affect landlords and letting agents. In summary, the changes that will apply are:-
- An EPC will need to be ordered before the property is marketed
- Letting agents will need to be “satisfied” that an EPC has been ordered before agreeing to market the property
- Once ordered, all reasonable efforts must be used to obtain the EPC within 7 days
- The front page of the EPC will need to be attached to written particulars
From 6 April 2012, an EPC must be commissioned before a rental property is marketed. Currently, this is only a requirement on residential dwellings that are being sold. The requirement to commission before marketing will also apply to commercial buildings both being rented or sold. In addition, a complimentary duty will apply to letting agents requiring them to be satisfied that an EPC has indeed been commissioned before they agree to market a property. Trading standards officers will have extra powers of inspection in relation to agents to check on what evidence of commissioning they obtained before marketing the property.
An energy performance certificate is commissioned when a request is made which is properly addressed to an energy assessor who is accredited to produce energy performance certificates for the category of building in question, and which contains all such information required and is accompanied by payment (or an undertaking to make such payment) [Regulation 5A Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007].
Currently for rented, once an EPC has been ordered, there is no timescale as to when it must be obtained although it must be made available at certain times. However, for residential properties being sold, an EPC must be obtained within 28 days from commissioning. This 28 day timescale was inherited from home information packs when they were suspended in 2010 but this length of time is felt now to be too lengthy and unnecessary.
Therefore, from 6 April, all reasonable efforts must be used to obtain the EPC within 7 days of its commission. Because the 7 day rule will apply to all properties, residential, commercial, for sale, or rent, there is an additional allowance of up to 21 days to obtain the EPC. This extra time though is only available if all reasonable efforts have been used during the 7 days. It is likely that the extra 21 days will only be used for complex commercial buildings that require extra time to complete for example.
Currently for residential sales only, the asset chart (graph) of the EPC has to be put in any written particulars or, as an alternative the whole EPC may be attached to the particulars.
From April, it will no longer be suitable to insert the asset chart into particulars and instead for both rented and sales, the front page of the EPC must be attached to the written particulars. This requirement will apply to commercial buildings as well as residential.
From 6 April 2012, written particulars means any written description of the property which includes at least two of the following—
- a photograph of the building or any room in the building,
- a floor plan of the building,
- the size of the rooms in the building,
- the measured area of the building, or,
- in relation to a building being rented out, the proposed rent.
A reference to giving particulars includes a reference to giving or making available particulars electronically so includes sending particulars by email.
There is debate as to whether “written particulars” includes for example an advertisement in a newspaper? After all, a newspaper advert (for example) may contain a photograph and the amount of rent. So, does this mean therefore that the front page of the EPC must be attached or shown in the newspaper? The same problem also arises in window displays or perhaps a brochure containing lists of properties.
According to the DCLG guidance, because window cards are ‘advertising material’ which are not given to a specific individual who may be interested in renting the building, the front page of the EPC will not need to be attached.
Again, according to the DCLG, the front page of the EPC need not be attached where a newspaper advert is concerned:
“The requirement to attach a copy of the front page of the EPC to written particulars is where an agent provides written particulars to a person (i.e. a specific individual) who may be interested in … renting the building. This implies that a copy of the front page of the EPC does not need to be attached to ‘advertising material’, i.e. a newspaper or window card.
Where information about a building is made available on a website and meets the definition of written particulars then a copy of the first page of the EPC must be attached to those details according to DCLG.
The EPC Register Operator has provided a technical solution which will enable property agents to retrieve the EPC from the Register and to attach it to on-line written particulars. This service has been provided at the request of property agents. More detailed information for property agents is available on request at: EPC.Enquiry@communities.gsi.gov.uk
Following successful completion of a registration process, property agents will be able to request a URL link for an EPC lodged on the central Register when they have provided the Register Operator with details of the Report Reference Number for the building in question. The URL can then be passed to those organisations responsible for preparing internet or on-line property details orto prospective buyers or tenants if written particulars are provided electronically.
Brochures / Auction catalogs
If the details in the auction catalog meet the definition of written particulars, then an EPC will need to be included with the details of those properties. However, There is no requirement for the EPC to be on the same page. It must, however, be clear which written particulars the EPC refers to and that the EPC is legible.
In response to concerns about brochures generally, the DCLG have further commented
In terms of a multi-unit brochure, we are mindful of the guidance given in relation to auction catalogues, where we have stated that EPCs should be included in the catalogue. We are of the view that an auction catalogue would provide the detailed information which would be used by a person to determine whether to bid for a particular property, whereas with a non-auction brochure they could go back to a property agent to express information in a particular unit. However, if a multi-unit brochure provides detailed information, which meets the definition of written particulars and which people will use to determine whether or not they may wish to purchase a particular unit, then we say that in our view an EPC should be included.
It seems an auction catalog and general lettings brochure is being considered as different things by the DCLG. Presumably, the thought is that an auction catalog is the primary source of information to the prospective buyer and there may not be further written particulars available. In addition, the auction catalog may be more detailed than other catalogs. This explains why the DCLG suggest that the front page of each EPC would need to be within an auction catalog.
Compare this to a rental brochure for example which may be more comparable to a list of properties with not too much information contained within the brochure and crucially because the prospective tenant will likely contact the agent for further details of individual properties, it is perhaps at that later stage that the EPC needs to be attached.
Whether or not an EPC needs to be within the brochure therefore seems to depend on the detail and purpose of the particular brochure / catalog in question. For the time being it would seem sensible therefore that all brochure / catalog type documents which meet the definition of written particulars should contain the front page of the EPC in relation to each property in the brochure until there is some clear distinction available.
List of properties
In the same response, the DCLG provide comment on a list of properties which might contain a photograph and the rental amount (and therefore falls under the definition of written particulars)
Regarding the issue on whether EPCs would be required to be included with a single-sheet marketing list, it would be possible to argue that an expression of interest in a particular unit could count as a trigger point in such situations. The definition of ‘building’ in Reg 2(1) refers to part of a building designed or altered to be used separately, and it could [be] interpreted that the expression of interest in a building is when someone asks for information about one or more of the units on the marketing list. The information on the marketing list is, however, so brief that people would need to go back to the property agent for detailed information on a unit before purchase, and it sounds as though it could provide a more pragmatic solution for property agents to supply an EPC at this stage. It could seem onerous for them to have to attach a bundle of EPCs with a single sheet list of properties.
To summarise the notes and guidance above, it seems that if there is either a website which has a list of available properties or a paper list of properties is supplied to prospective tenants, that list or website page most likely won’t need the front page of the EPC attaching.
However, when a person enquires specifically about one of those properties, they will click the link on the website page or ask the agent for more information. It is at this stage that written particulars are provided and therefore the front page of the EPC must be attached.
No address on written particulars
Where the written particulars do not contain an address in relation to commercial buildings (for example if there is a fear of squatting) the front page of the EPC which must be attached, may have its address omitted. There is a clarification provision though which confirms this is absolutely the only occasion that the address may be removed so when making available an EPC at a viewing or with a request for written information, the address must then be shown. This provision only applies to commercial buildings so residential buildings must always have the address shown.
New look EPC
From April 2012, the layout of the EPC will be changed. In the new version, the graphs currently on the front of an EPC will be replaced with a simple, clear message, focusing on the costs of heating a home and how much can be saved by introducing energy efficiency measures.
In addition, the revised front page of the EPC will include a list of the top three recommendations on home energy efficiency improvements, ranging from cheap measures, for example buying a hot water cylinder jacket for £25, to more substantial investments, such as installing a boiler from around £1,500.
Finally, in order to ensure that there is a close link between EPCs and the upcoming Green Deal, the EPC will be used to signpost consumers to those energy efficiency improvements which qualify for Green Deal support. This will hopefully act as an additional prompt for people to take advantage of the Green Deal.
The penalty amount provisions are amended to reflect the changes discussed above but the amounts remain the same as the original regulations namely £200.00 for dwellings or 12.5% of the rateable value with a minimum £500.00 and maximum £5,000 for commercial [r.43]. The penalty will apply for failing to comply with a number of the regulations including failing to commission an EPC before marketing, failing to provide at a viewing or request for information etc.
Air condition units
Currently it is a requirement that air conditions units be inspected and a report produced at least every five years. The report contains recommendations in particular on more efficient means of cooling etc. The registering of the report is currently voluntary. However, from April, an air conditioning report must be registered in the same way an EPC must be on the central England and Wales database.
Order an EPC
Members of the Guild can order an EPC here