David Callcott Blog

Friday 9th March 2012

EPC Regulations – what you need to know from April 6

A number of changes are soon to come into force surrounding the residential and commercial Energy Performance Certificate (EPC) regulations.

Here, David Callcott from Quest, which is the technology provider to the RICS, BRE and Sterling accreditation schemes, provides an insight into the implications for estate agents and conveyancers.

 

Domestic EPCs:

First and foremost, from April 6, 2012, an EPC must be procured on all properties before they are marketed for either sale or rent. The first page of the EPC report is to be attached to the written particulars (either physically for paper particulars or via an electronic link to the most current EPC on the official register for electronic listings), and must be added within a seven-day period (reduced from the original 28-day period).

There is, however, an additional 21 days to procure the EPC if it is not available after seven days, but if after that time the Certificate is still not available, the property must be withdrawn from the market or a fixed penalty notice can be issued.

Failure to comply can result in a fine being imposed by Trading Standards Officers (TSO), who are tasked with enforcing the regulations and will have the power to issue an immediate on-the-spot penalty notice from April 6 onwards.

In terms of the new-look design for EPCs, we are aware that this has been approved and meets the agreed RdSAP 9.91 methodology to support Green Deal. We currently await official publication of this by CLG, in addition to confirmation regarding when final guidance will be issued to estate agents. 

Although there has been industry speculation regarding potential delays to the start of the new legislation, we have not been informed of any delays by CLG and are continuing to focus on April 6 as the start date of the new rules coming into force.

 

Commercial EPCs:

Turning our attention to the non-domestic EPC regulations, it is fair to say there has been a great deal of confusion over the new EPBD Regulations coming into force for commercial properties.

There is a popular misconception that a commercial property agent will be classified as a ‘Relevant Person’ and therefore be held jointly responsible with the seller for the production of an EPC when a property is being marketed. We have, however, sought guidance from Simon Barnes, Chairman of Sterling Accreditation, and for the avoidance of doubt we can confirm that this assumption is incorrect. But this does not mean that commercial agents are free of all obligations with regard to EPCs.

Agents and conveyancers do need to be aware of the changes, which are as follows:

Firstly, an EPC must be produced before a building is marketed; the original 28-day period within which an EPC is to be secured using reasonable efforts has been reduced to 7 days. It is therefore important to be able to produce the report if requested to do so by TSOs, as it will be within their powers to request this documentation from those acting on behalf of the relevant person.

The Regulations very clearly place the responsibility on someone acting on behalf of the relevant person to be satisfied that an EPC has been commissioned before marketing. In effect, a commercial property agent acting on behalf of the seller or landlord will need to ensure that an EPC for a building has been commissioned before marketing, within the designated timescales. 

In addition, all conveyancers have a duty of care to ensure that relevant persons abide by current legislation by checking, advising and not allowing a sale to proceed without ensuring that a valid EPC has been given, free of charge, to the person who ultimately becomes the buyer or tenant.

And, as with residential properties, the front page of the EPC report must be attached to the written property particulars. 

Finally, another change worth noting is that all air-conditioning reports must now be lodged on the Central Register.

Full details of the new commercial Regulations are available to view via the QuestCommercial portal at: www.questcommercial.co.uk

 

Does this affect existing properties that I am marketing?

The changes to both the residential and commercial EPC regulations only apply to properties where marketing for sale or rent begins on or after 6 April 2012. Those that are already for let or sale must adhere to the pre-existing regulations unless the property is removed from the market and re-listed after this date, in which case the new regulations will then apply.

For properties being marketed prior to 6 April, the EPC in the original format can be attached to the written property details when the Regulations come into force.

David Callcott is managing director of Quest

www.questuk.com

(2) Comments

Added by roy on 2012-03-16 08:54:39

So TS officer walk's into a commercial property agents post 6th April, they ask to see an EPC for a property on the market. It has no EPC,. about 75% of current stock? The agent can not produce one, so 75% of your clients will get a fine as they have a legal responsibility to have one in 28 Days ?
How will that go down with your client's
Added by @linniR on 2012-03-09 09:45:52

This answer to a parliamentary question, provided by Minister Andrew Stunell, gives some more clarity on Trading Standards powers in respect of estate and letting agents.

Hansard source (Citation: HC Deb, 22 February 2012, c835W)

Question from David Nuttall (Bury North, Conservative)

To ask the Secretary of State for Communities and Local Government what steps his Department is taking to ensure compliance with the provisions of the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment) Regulations 2011.

Answer from Andrew Stunell (Parliamentary Under Secretary of State, Communities and Local Government; Hazel Grove, Liberal Democrat)

Enforcement of the Energy Performance of Buildings (Certificates and Inspections) (England and Wales)Regulations is the responsibility of Local Weights and Measures Authorities.

To make the regulations easier to enforce the Department has extended the current requirements to commission an Energy Performance Certificate before marketing, that apply to residential buildings, to all residential and non residential buildings when sold or rented out.

The amendments will also require the Energy Performance Certificate to be attached to the written particulars of the building when sold or rented out. The duty to commission an Energy Performance Certificate before marketing has been extended to the sale and rent of residential and non residential buildings to make the regulations more consistent and coherent and to make it easier for Trading Standards Officers to detect non-compliance.

An authorised officer of an enforcement authority, e.g. Trading Standards Officers, can issue penalty notices for non-compliance. Trading Standards Officers currently have the power to require the ‘relevant person’ (i.e. the seller or landlord) to produce copies of the Energy Performance Certificate for inspection and to take copies if necessary.

The amended regulations have extended the power to require the production of documents to include persons acting on behalf of the seller or landlord—e.g. estate agents and letting agents. This means, for example, that Trading Standards Officers will be authorised to require estate agents to produce evidence showing that an Energy Performance Certificate has been commissioned where they are marketing a building without one.

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