EPC questions and answers
What legislation governs the requirement of an energy performance certificate?
Can I get official government guidance for landlords for free?
Yes, official guidance is available here
When does providing an energy performance certificate by a landlord come into force?
1st October 2008 for residential dwellings.
6th April 2008 for commercial properties with a useful floor area over 500m2.
The above are for both England and Wales.
Who must supply an EPC (who is the relevant person)?
“relevant person” means - in relation to a building which is to be rented out, the prospective landlord. [r2(1)]
This means even if you are not the owner of the freehold for example in a block of flats owned by a different freeholder and you are the leaseholder, you would still be liable.
Must I provide an EPC to existing tenants?
No
If I renew a tenancy to an existing tenant must I supply an EPC?
No
Who must I supply an EPC to?
You must supply an EPC to any "prospective tenant". A person becomes a prospective tenant when he-
(a) requests any information about the building from the relevant person or his agent for the purpose of deciding whether to rent the building;
(b) makes a request to view the building for the purpose of deciding whether to rent the building; or
(c) makes an offer, whether oral or written, to rent the building.
[r3]
When must I supply the EPC to the prospective tenant?
Whichever is the sooner of the following:-
- at the earliest opportunity
- in the case of a person who requests information about the building, the time at which the relevant person first makes available any information in writing about the building to the person
- in the case of a person who makes a request to view the building, the time at which the person views the building.
- in any event before entering into a contract to rent out the building
[r5(2)]
If I provide written particulars, must I place the certificate on the particulars?
Yes, the person giving the particulars must ensure that— the particulars include the asset rating of the building (as detailed in regulation 11) or a copy of an energy performance certificate for the building is attached to the particulars.
“written particulars” means any written description of the property which includes at least two of the following—
(a) a photograph of the building or any room in the building;
(b) a floor plan of the building; or
(c) a description of the size of the rooms in the building,
and a reference to giving particulars includes a reference to giving or making available particulars electronically.
[r6]
Are there situations when I do not have to provide an EPC?
Yes, above does not apply if the relevant person believes on reasonable grounds that the prospective tenant—
(a) is unlikely to have sufficient means to rent the building;
(b) is not genuinely interested in renting a building of a general description which applies to the building; or
(c) is not a person to whom the relevant person is likely to be prepared to rent out the building.
Nothing above authorises the doing of anything which constitutes an unlawful act of discrimination.
The relevant person must ensure that a valid energy performance certificate has been given free of charge to the person who ultimately becomes the tenant.
[r5(3)]
In addition to above, a building that may be demolished is exempt from requiring an EPC.
May I charge the prospective tenant for the EPC?
No, it must be made available free of charge. [r5(2)]
Must I also supply a "recommendation report"?
Yes, Where a relevant person is under a duty under regulation 5(2), ... to make available or give an energy performance certificate to any person, the certificate must be accompanied by a recommendation report.
A recommendation report is a report containing recommendations for the improvement of the energy performance of the building issued by the energy assessor who issued the energy performance certificate.
[r10]
May I supply a photocopy of the EPC?
Yes [r12]
May I supply the EPC electronically?
Yes, but only if the intended recipient consents to receiving the certificate electronically. [r13]
How often must I have an assessment of my property carried out for an EPC?
Every 10 years [r11(3)(a)]
If I have a house with bedsits, must I obtain an EPC for each bedsitting room?
This will depend on the type of tenancy you grant.
Joint and several
If you grant a joint and several tenancy where all the tenants are on one agreement, then this no different to letting a normal house to a single family in legal terms. Therefore, one EPC will be required for the whole house.
Individual let rooms
If you let each room individually on separate tenancies, then according to the DCLG guidance, an EPC is not required: "An EPC is only required for a dwelling that is self-contained, meaning that it does not share essential facilities such as a bathroom/shower room, wc or kitchen with any other dwelling, and that it has its own entrance, either from outside or through common parts, that is not through another unit." [Page 10 Energy performance certificates for dwellings in the social and private rented sectors]
The Guild of Residential Landlords is not entirely correct that this advice is correct (please see below important note), however after clarifying this advice with the DCLG, they replied by email with the following:
"Dear Mr Thompson
Thank you for your enquiry to the EPBD helpline, the response to your enquiry is as follows.
In regards to the bedsits, please refer to page 16 of the guidance document 'Energy performance certificates for dwellings in the social and private rented sectors: A guide for landlords'. This section includes information on houses in multiple occupancy. http://www.communities.gov.uk/
In a situation where a landlord has several tenants in bedsits in a house that has shared facilities each on their own contract an EPC would not be required.
Please note that we cannot offer legal advice, nor can any interpretation of the law that we suggest be regarded as authoritative.
If you are still unclear on what the law requires you to do, after reading the guidance that is available from CLG, we would suggest that you seek you own legal advice.
Should you require further information please call the helpline direct to discuss your enquiry further on 0845 365 2468.
EPBD Helpline tel: 0845 365 2468 email: help@epbduk.info"
Important note to above "individual let rooms".
As suggested above, we are not entirely sure this advice is correct, although there would appear to be no reason why a landlord shouldn't follow the DCLG advice. Our reasons for not being certain about the DCLG advice is shown below.
Regulation 5 provides: "5.—(1) ..., this regulation applies where a building is to be sold or rented out.
(2) The relevant person shall make available free of charge a valid energy performance certificate to any prospective buyer or tenant—
..."
This shows that an ECP needs to be provided in respect of a building, not a dwelling as stated in the DCLG guidance.
Building is defined in the regulations as " “building” means a roofed construction having walls, for which energy is used to condition the indoor climate, and a reference to a building includes a reference to a part of building which has been designed or altered to be used separately;"
Although the definition of building includes being designed or altered to be used separately, it does not have to be exclusively a separate dwelling. Therefore, a building is both any building which uses energy which has walls and a roof and this also includes a separate dwelling. This latter statement (it is submitted) is simply confirming that a certificate is required on building that has been converted into separate self contained flats. However, it does not exclude bedsit type accommodation.
Therefore it is submitted, that even in a case of individual let rooms, because energy is being used in a building having walls and a roof, then even bedsits meet the definition of a building, even though they are not separate dwellings.
In addition to above, Regulation 11(7)(a) seems to be covering a scenario where an EPC has been provided by an assessor for a building on a common certification of the whole building for blocks with a common heating system. This implies that it is possible to require an EPC in a building using a common heating system.
This is not to say that an individual room requires an EPC. It is submitted that the house would require an EPC and a copy given to each prospective tenant.
The other side of the argument is that it seems unfair if a landlord is paying for the gas and electricity, what difference does it make to the tenant? However, the point of an EPC is to determine the energy used and how much carbon is emitted. Cost is not relevant to the EPC.
What should a landlord do about the discrepancy above?
A landlord who fails to provide an EPC on bedsit type accommodation will have a defence to a penalty. If a landlord has asked a supplier for an EPC and they have failed to provide the EPC, then the landlord commits no offence. (It is also not an offence for an assessor to refuse to supply an EPC) Therefore, assuming assessors are following the DCLG guidance, a landlord can ask the question and as long as they don't provide an EPC the landlord is covered. Please see below the heading I have been unable to obtain an EPC. Are there any defences to a penalty notice?
If I have a house that has been converted into self-contained flats, do I need an EPC for each flat?
Yes
What must an EPC contain?
An energy performance certificate must-
(a) express the asset rating of the building in a way approved by the Secretary of State under regulation 17A of the Building Regulations 2000;
(b) include a reference value such as a current legal standard or benchmark;
(c) be issued by an energy assessor who is accredited to produce energy performance certificates for that category of building; and
(d) include the following information—
(i) the reference number under which the certificate has been registered in accordance with regulation 31;
(ii) the address of the building;
(iii) an estimate of the total useful floor area of the building;
(iv) the name of the energy assessor who issued it;
(v) the name and address of the energy assessor’s employer, or, if he is self-employed, the name under which he trades and his address;
(vi) the date on which it was issued; and
(vii) the name of the approved accreditation scheme of which the energy assessor is a member.
[r11(1)]
Can I produce my own EPC?
Only an energy assessor may supply a landlord with a valid EPC. An energy assessor must be a member of an accreditation scheme approved by the Secretary of State. [r25]
How much does an EPC cost?
This depends on market conditions. Prices seem to be from £45.00 to £75.00
What are the penalties for failing to supply an EPC?
A penalty charge notice may be issued containing a charge of £200.00. [r43(1)(a)(i)]. This is not a daily charge, however there appears no reason why an enforcement officer could not issue a penalty charge notice each day until an EPC has been obtained.
Who are the enforcing authority?
Every local weights and measures authority is an enforcement authority for the purposes of this Part.
Is there a time limit when I can no longer be issued with a penalty notice?
Yes, an enforcement officer may not require a copy of a valid EPC after 6 months from the date you should have made an EPC available. [r39(3)].
If an enforcement officer requests a copy of a certificate, how long do I have to provide the copy?
Within the period of seven days beginning with the day after that on which it is imposed. [r39(4)]
A person is not required to comply with such a requirement if he has a reasonable excuse for not complying with the requirement. [r39(5)]
Is it an offence to obstruct an enforcement officer?
Yes, it is a criminal offence to obstruct an enforcement officer and you would be liable to a fine up to level 5 on the standard scale. [r48].
I have been unable to obtain an EPC. Are there any defences to a penalty notice?
Yes:
(1) A relevant person shall not be liable to a penalty charge notice for a breach of the duty imposed by regulation 5 (failure to provide a valid EPC) where he can demonstrate that-
(a) he 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, he did not have in his possession or control a valid energy performance certificate at the relevant time; or
(b) in the case of a failure to make available an energy performance certificate to a prospective tenant-
(i) the prospective tenant was seeking to rent out the building due to an emergency which required the tenant's urgent relocation;
(ii) at the relevant time the relevant person did not have in his possession or control a valid energy performance certificate;
(iii) there was insufficient time in which the relevant person could reasonably have been expected to obtain a certificate before renting out the building to the prospective tenant; and
(iv) the relevant person has given a valid energy performance certificate to the tenant as soon as reasonably practicable after renting out the building.
(2) In paragraph (1)(a) the reference to a request is to a request properly addressed to a person who usually provides or is likely to provide an energy performance certificate for the category of building in question and which includes such payment or an undertaking to make such payment as is usually necessary to obtain an energy performance certificate.
(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).
[r42]
Is there any requirement on a tenant to allow access to an energy assessor?
Yes ...
It shall be the duty of every person with an interest in, or in occupation of, the building to—
(a) allow such access to any energy assessor appointed by the [relevant] person ... as is reasonably necessary to inspect the building for the purposes of—
(i) preparing an energy performance certificate and recommendation report;
(ii) preparing a display energy certificate or advisory report; or
(iii) inspecting an air-conditioning system; and
(b) cooperate with the responsible person so far as is reasonably necessary to enable him to comply with the duty ...
[r50(2)]
What does an EPC look like?
Is it possible for an EPC to be required for a garage for example?
No, it is not required for a garage or similar building because there is no energy used to condition the indoor climate.
“building” means a roofed construction having walls, for which energy is used to condition the indoor climate, and a reference to a building includes a reference to a part of building which has been designed or altered to be used separately;
