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Lettings EPCs and HIPs

Further to our post yesterday on the suspension of HIPs and the amendments to the EPC regulations, the amendment has now been published on the OPSI website.

From an examination of the amendment regulations it can be seen that the main change is an insertion of a new regulation 5A into the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007. The new regulation 5A simply states that where a property is being sold and it doesnot have a valid EPC one must be commissioned before it is put on the market.

The amendement regulations make no change to regulation 5 of the original EPC regulations which require let properties to have an EPC available to show a tenant at the time that written particulars are provided or the property is shown, whichever is th earlier.

Therefore, the HIPs amendement will have absolutely no effect on the rental market.

10 Comments

  • liz feast 21st May 2010 at 11:10 am

    As the provision of EPCs does not seem to be monitored – how important is it!

    • PainSmith 21st May 2010 at 12:11 pm

      Well the landlord will be liable for prosecutiin if one has not been obtained and provided at the right time. Whether you wish to take the risk is up to you.

  • Jamie Turnbull 21st July 2010 at 2:56 pm

    It’s worth noting that the rules also say you may not be liable for breach of rule 5 provided you made a request for an energy performance certificate at least 14 days before the relevant time, and despite all reasonable efforts and enquiries by the relevant person, did not have in your possession or control a valid energy performance certificate at the relevant time.

    So this covers us in the few cases where we’re marketing a property and have commissioned an EPC but yet to receive it from the suppliers.

    • PainSmith 21st July 2010 at 11:19 pm

      Yes, but only in relation to an EPC for sales purposes. The same position does not apply to tenants.

  • Jamie Turnbull 22nd July 2010 at 2:26 pm

    I think you’re mistaken and that it clearly does apply to tenants. The section I was loosely quoting from above (Part 7 Enforcement – Section 43) then goes on to say:

    (3) In this regulation “relevant time” means the point in time by which the relevant person is required to have made an energy performance certificate available to a prospective buyer or tenant by virtue of regulation 5(2).

    It’s worth noting you also have up to 7 days to produce an EPC to the enforcement officer.

  • Jamie Turnbull 22nd July 2010 at 2:33 pm

    Sorry, I meant section 42 not 43!

    • PainSmith 22nd July 2010 at 2:53 pm

      We think we are not mistaken! You are referring to paragraph 42(a) to support your position. Paragraph 42(b) begins “in the case of a failure to make available an energy performance certificate to a prospective tenant”. This part is clearly designed to apply to tenants while 42(a) is not.

  • Jamie Turnbull 22nd July 2010 at 4:40 pm

    I agree that section 42(b) clearly states ‘tenant’,whereas 42(a) does not. However, you could argue that it also says in section (3) of the same regulation that wherever is says “relevant time” in this regulation that it is referring to buyer or tenant, therefore section 42(b) could equally apply to tenants.

    I think given the ambiguity it could be argued that if you are a Landlord and can prove to have made reasonable efforts to obtain an EPC and are basically waiting for your supplier, then the same rule would apply. Provided you do supply the EPC as soon as possible. I don’t see any reason why this rule should be any different for tenants/buyers.

    • PainSmith 22nd July 2010 at 4:43 pm

      That was not the view of the government when the legislation was enacted and is not the view of many trading standards officers. It is also not the view of this firm. We would not recommend anyone seeking to rely on this position other than as an absolute last resort to avoid prosecution.

  • Jamie Turnbull 27th July 2010 at 8:54 am

    Do you know why the government intended to treat buyer/tenant differently in this part of the regulation?

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