New regulations affecting buildings' energy performance are due to come into force next month.
The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment) Regulations 2011 go live on 6 April 2012.
While changes to the existing legislation might appear relatively minor, the 2011 Regulations will have a significant impact on the Energy Performance Certificate (EPC) requirements at the marketing stage of a property.
Sellers, landlords, and agents of commercial property in particular, will need to be alert to the immediate changes to avoid fines of up to £5,000 for failure to comply with the new rules.
What is changing?
The 2011 Regulations will amend the existing legislation – The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 – in three ways:
- from 6 April 2012, EPCs will be required on marketing for non-domestic and rental properties as well as residential properties
- written property particulars will have to include a copy of the first page of the EPC – it will no longer be permitted to include only the asset rating
- air conditioning reports will require registration on the central EPC register
EPC requirements at the marketing stage
Following the suspension of Home Information Packs in May 2010, the duty to ensure an EPC was available or had been commissioned was retained for residential property sales, but there was no similar obligation for non-domestic sales and rentals.
Under the existing regulations, a residential property seller must ensure that an EPC is either available or has been commissioned before the property is put on the market (Regulation 5A (2) of the 2007 Regulations).
There is also a complementary duty on the person acting on behalf of the seller to be satisfied that an EPC exists or has been commissioned, before they start marketing the property on the seller’s behalf (Regulation 5A (3)).
Where marketing starts and an EPC is not available, both parties have a duty to use ‘all reasonable efforts’ to secure an EPC within 28 days, starting on the day the property is first put on the market (Regulation 5A (4)).
The 2011 Regulations amend the existing legislation by removing the reference to ‘residential property’, and extending the requirement to have commissioned an EPC at the marketing stage to commercial properties and all rental transactions.
The period during which all reasonable efforts must be made to secure an EPC will also be reduced, from 28 days to seven. If an EPC is not obtained within seven days, the seller and person acting on the seller’s behalf have a further 21 days to secure an EPC, after which the defence of using all reasonable efforts is no longer available (Regulation 5A (4A)).