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Here, we will examine the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015.
From 1 April 2018, the building must have a minimum energy rating of "E" for renting any new tenancy, renewal, or extension.
The rating is found on the building's Energy Performance Certificate.
From 1 April 2020, the minimum level "E" applies to all tenancies -- including existing ones. As a side note, non-domestic properties must have a minimum "E" rating from 1 April 2018 for all new tenancies, rentals and extensions. From 1 April 2023, all non-domestic lettings (including existing ones) must have an "E" rating or better. We won't be discussing non-domestic property further in this article.
New guidance has been published called The Domestic Private Rented Property Minimum Standard (there is also non-domestic guidance on the linked page).
The easiest way to comply is to ensure the energy rating is at an "E" or better!
By far, the most impact is having a modern condensing boiler. Otherwise, loft insulation can be installed, and LED bulbs have a small beneficial effect.
Remember that the assessor will evaluate only what can be seen without destructive investigation.
Therefore, if the walls have been insulated and then skimmed over (perhaps by using thermal laminate boarding or roofing batten and filled with insulation), this won't be counted unless the assessor can physically see the insulation.
The energy performance certificate will show a list of recommendations and their impact.
These are "relevant energy efficiency improvements" (see later under exemptions).
The minimum energy requirements only apply to the following types of tenancy:
Broadly speaking, since 2008, an EPC has been required to be given to a prospective tenant on let property.
If the property were let before an EPC was a legal requirement, the minimum energy rating wouldn't apply from 2020.
… the Regulations only apply to those domestic properties which are legally required to have an Energy Performance Certificate (EPC) … [source: para 6]
With the letting of individual rooms, the guidance relating to when an EPC is required states:
An EPC is not required for an individual room when rented out, as it is not a building or a building unit designed or altered for separate use. The whole building will require an EPC if sold or rented out.
However, this is not our advice!
Since October 2015, a landlord in England cannot serve a section 21 notice without giving the tenant an EPC. A similar rule has been applied in Wales since the Renting Homes (Wales) Act 2016.
It is therefore submitted that it's better to have one done for the whole building and give each room a copy when a new tenancy is granted. That way, there is no arguing over possession with the court.
Furthermore, the new accelerated possession claim form asks if the tenant has been given an EPC -- it doesn't have an option in the form for "an EPC is not required". An explanation would need to be added if no EPC is given.
Furthermore, the minimum energy guidance stated in paragraph 9:
Please note that there is no obligation to obtain an EPC on a letting of an individual non self-contained unit within a property, such as a bedsit or a room in a house in multiple occupation (HMO). However the property in which the unit is situated may already have its own EPC covering that property as a whole; this could be because the property had been bought within the past ten years, or because it had previously been rented out on a whole-property basis. If a property as a whole has a valid EPC and that EPC shows an energy efficiency rating of F or G, then the owner/landlord will not, from April 2018, be able to issue new tenancies for non-self-contained units within the property until steps are taken to comply with the Regulations.
As a result, it is best to ensure the building has a rating of "E" or better and a copy given to each tenant.
The guidance clarifies that an EPC is usually required on a listed building.
However, it may well be the case that if the building doesn't achieve the minimum rating, an exemption may apply if consent cannot be obtained to carry out the improvements -- see later.
There are several exemptions for properties that remain below the minimum standard (rated F or G). But, in all cases, the property must then be registered on the National PRS Exemptions Register, which will typically last for five years, after which an attempt must again be made to bring the property up to the minimum rating.
This public database allows enforcement authorities easy access to check whether a rented property has been placed on the register.
If all the recommendations shown on the EPC have been completed and the property still doesn't achieve the minimum "E" rating (i.e. it is rated F or G), the property will be exempt and, as such, must be registered.
From 1 April 2019, if the landlord cannot make any recommendations to bring the property up to the minimum rating after spending up to £3,500 (the "cost cap"), either wholly financed by the landlord or partly funded by finance arrangements (see below) and the landlord, the property can be registered as exempt.
Funding for the improvements can be obtained from various sources:
Funding can be achieved by combining any of the above.
Wall insulation is not considered a relevant energy efficiency measure if all the following apply:
The expert advice must be from one of the following:
If the landlord cannot obtain consent (where consent is required to be acquired) from a third party, the property may be registered as exempt. Examples of third parties include:
For the exemption to apply, "reasonable efforts" must be made to obtain consent, and evidence must be provided for the exemption register.
From 1 April 2019, if the tenant refuses to consent to carry out improvement works and the property is on the exemption register, the exemption ends when the tenancy ends.
The property may be registered as exempt if:
The landlord has obtained a report from an independent surveyor who is on the Royal Institution of Chartered Surveyors (RICS) register of valuers advising that the installation of specific energy efficiency measures would reduce the market value of the property, or the building it forms part of, by more than five per cent.
From 1 April 2020 (when all rented properties must meet the minimum rating), a temporary exemption of six months will apply when a person becomes the landlord on purchasing an interest in a property and, on the date of the purchase, it was let on an existing tenancy. Some other exceptional cases are available but unlikely to apply to readers of this article. Please see the guidance for more information.
A local authority will enforce the regulations and have several powers.
A local authority may decide to issue a compliance notice, which can be given within 12 months of a suspected breach. A compliance notice may request the following information:
They may also require some or all information to be placed on the exemption register.
If the local authority decides to issue a financial penalty, they have discretion regarding the amount within a framework.
The maximum penalties are as follows:
(a) Where the landlord has let a sub-standard property in breach of the Regulations for fewer than three months, the Local Authority may impose a financial penalty of up to £2,000 and a publication penalty.
(b) Where the landlord has let a sub-standard property in breach of the regulations for three months or more, the Local Authority may impose a financial penalty of up to £4,000 and a publication penalty.
(c) Where the landlord has registered false or misleading information on the PRS Exemptions Register, the Local Authority may impose a financial penalty of up to £1,000 and a publication penalty.
(d) Where the landlord has failed to comply with a compliance notice, the Local Authority may impose a monetary penalty of up to £2,000 and a publication penalty.
An appeal is available to the First-tier Tribunal (General Regulatory Chamber) within 28 calendar days of the local authority's decision.