MINIMUM ENERGY EFFICIENCY STANDARDS

IMPORTANT NOTE

The effective ending of the Green Deal means that changes need to be made to the Regulations imposing minimum energy efficiency standards in the PRS. The Government has indicated what these changes could be and they are noted in the appropriate sections below. We would, however, stress that no final decision has been made and the Regulations themselves have not yet been amended.

Research has also identified that energy performance certificates (EPCs) understate the thermal efficiency of solid walls. Many PRS properties have solid walls. Usually they were built pre-1918 but can be later. Again the Government are proposing to recalibrate EPCs to give a truer reading. This could mean that some solid wall properties currently rated F under an EPC will no longer require any work and less work may be required in the case of a G rated property. The Government has yet to bring forward the relevant regulations to implement these changes. Landlords of F and G rated solid wall properties are therefore strongly advised to await developments. Should changes be made then a new EPC will be required. Existing EPCs cannot be adjusted. Once EPCs are recalibrated, in these cases, obtaining a new EPC may mean that you no longer need to comply with the Regulations or less work may be required.

Overview

As from the 1st April 2018 there will be a requirement for any properties rented out in the private rented sector to normally have a minimum energy performance rating of E on an Energy Performance Certificate (EPC). The regulations will come into force for new lets and renewals of tenancies with effect from 1st April 2018 and for all existing tenancies on 1st April 2020. It will be unlawful to rent a property which breaches the requirement for a minimum E rating, unless there is an applicable exemption. A civil penalty of up to £4,000 will be imposed for breaches. This guidance summarises the regulations. There are separate regulations effective from 1st April 2016 under which a tenant can apply for consent to carry out energy efficiency improvements in privately rented properties.

Scope

The Regulations apply to domestic private rented sector properties in England and Wales. This means –

  • Properties let under an assured tenancy or a shorthold.
  • A tenancy which is a regulated tenancy for the purposes of the Rent Acts.
  • Properties let
    (a) On a tenancy which is an assured agricultural occupancy
    (b) On a protected tenancy under the Rent Act 1976
    (c) On a statutory tenancy under that Act.

Need for an EPC

  • Properties within scope will include any domestic privately rented property which: has an EPC, and is either (i) required to have an EPC; or (ii) is within a larger unit which itself is required to have an EPC, either at point of sale, or point of let. No changes are made to existing regulations regarding the provision of EPCs.
  • Flats and houses are subject to the regulations. In the case of flats this means self-contained unit. Non self-contained units such as bedsits do not require an individual EPC.
  • If a property does not have an EPC then the regulations do not apply.

The EPC must be the current EPC if there is one and this must be no more than 10 years old.

Properties within scope

Properties within scope will include any domestic privately rented property which: has an EPC, and is either (i) required to have an EPC; or (ii) is within a larger unit which itself is required to have an EPC, either at point of sale, or point of let. No changes are made to existing regulations regarding the provision of EPCs.

Flats and bedsits

  • Flats and houses are subject to the regulations. In the case of flats this means self-contained unit. Non self-contained units such as bedsits do not require an individual EPC.
  • If a bedsit is within a property that does have an EPC, then the Regulations will need to be complied with before the bedsit can be rented out. Although as such bedsits do not need an EPC if the house containing the bedsit has been sold for example it will have an EPC in which case the Regulations will apply.

Buildings excluded from scope of requirements

The following domestic buildings are excluded from the scope of the requirements:

  • Buildings and monuments officially protected as part of a designated environment or because of their special architectural historical merit insofar as requirements with certain energy efficiency requirements would unacceptably alter their character or appearance. This includes listed buildings.
  • Temporary buildings with a planned timed use of 2 years or less.
  • Residential buildings which are intended to be used less than 4 months of the year.
  • Stand alone buildings with a total usable floor area of less than 50 square meters.

Listed buildings etc

The extent of the exclusion of listed buildings from the scope of the requirements is unclear. Likewise, in the case of dwellings located within conservation areas. The Regulations state that this exemption is “insofar as compliance with certain minimum energy efficiency requirements which would unacceptably alter their character or appearance”. This exemption is based on a similarly worded exemption from the need to obtain an EPC. Clearly, if a listed building or dwelling within a conservation area does not have an EPC then the Regulations do not apply because only the existence of an EPC triggers the need to comply with the minimum standards. There is a widely held view that all listed buildings are exempt from the need to obtain an EPC, even if they are sold or let out, but, again, the exact scope of this exemption is not clear. The RLA has prepared a more detailed note on this complex subject.

Improvements which can be required

Improvement work which can be required is any energy efficiency improvement work which qualified for Green Deal and the installation of gas for an off gas property so long as the mains are within 23 metres from the property. A list of eligible improvements appears below.

So long as the minimum E rating is obtained, it is left to the landlord to choose which works need to be carried out. Obviously there is nothing to stop a higher rating being achieved.

Prohibition on letting

A domestic private rented sector property is substandard if the EPC rating is F or G, unless an exemption applies. The legislation prohibits a landlord from letting out a substandard property. If there is an EPC in place which shows that the property is an F or G then it must not be let; otherwise the landlord is liable to penalties. This is subject to any available exemptions. Energy efficiency improvements must be carried out to bring the property up to an E rating at the minimum, unless one of the exemptions is applicable. In particular, if the work cannot be carried out so as to meet the Green Deal Golden Rule then there is potentially an exemption. Under the Golden Rule there should be no upfront costs (or any net cost to the landlord) because savings resulting from the works should repay their cost over the expected lifetime of the works.

If a landlord lets and continues to let the property in breach of the regulations, however, the breach does not affect the validity or legality of the tenancy itself, so the rent still continues to be payable.

Exemptions, restrictions on making improvements

Only appropriate, permissible and cost-effective improvements are required under the regulations. Landlords will be eligible for an exemption from reaching the minimum standard where they can provide evidence that one of the following applies:

  • They have undertaken those improvements that are cost-effective but remain below an E EPC rating. Cost-effective measures are those improvements that are capable of being installed within the Green Deal's Golden Rule. This ensures that landlords will not face upfront or net costs for the improvement works.
  • They are unable to install those improvements that are cost-effective without upfront costs because the funding entails Green Deal Finance, and they or their tenant fail the relevant credit checks.
  • The landlord is required by a contractual or legislative obligation to obtain a third party's consent or permission to undertake relevant improvements relating to the minimum standard, and such consent was denied, or was provided with unreasonable conditions.
  • The landlord requires consent, and the occupying tenant withholds that consent.
  • Measures required to improve the property are evidenced by a suitably qualified independent surveyor, for example from the Royal Institution of Chartered Surveyors (RICS), as expected to cause a capital devaluation of the property of more than 5%. Only those measures that are expected to cause such devaluation would be exempt from installation.
  • There will be no requirement to install wall insulation under the regulations where the landlord has obtained a written opinion, from a suitably qualified person or from the independent installer engaged to install the measure, advising that it is not an appropriate improvement due to its potential negative impact on the fabric or structure of the property (or the building of which it is part).

Registration of exemptions

All exemptions will be required to be notified to the PRS Exemptions Register which will be operated by the Government. It is planned that this will open from 1st October 2017. It will be essentially a database of exemptions and will be open to public inspection. Failure to register any exemption will render the exemption ineffective, and will amount to non-compliance with the regulations. The Enforcement Authority will be entitled to require landlords to furnish them with evidence supporting a claim for an exemption. Landlords will also be in breach of the regulations if they claim an exemption to which they are not properly entitled.

Duration of exemption

Exemptions will only endure for 5 years. They will then need to be reviewed to see if they are still effective. If not the work will have to be carried out.

Implementation

  • From 1 April 2018, the regulations will apply on the granting of:
    • A new tenancy to a new tenant, and
    • A new tenancy to an existing tenant, i.e. any extension or renewal to an existing tenant. This includes a statutory periodic tenancy which comes into existence at the end of the fixed term shorthold.
  • From 1 April 2020, the regulations will apply to all privately rented property in scope of the regulations.
  • Where a lease is granted involuntarily by a landlord, for instance due to operation of law, they may be provided with six months to comply after the tenancy is agreed. Similarly, where a non-compliant property occupied by a tenant is sold, or is transferred to a lender in the event of landlord's default (e.g. if a receiver is appointed), the new landlord will have six months to improve the property, or seek to demonstrate an exemption applies.

Note: the Regulations actually come into force on 1st October 2016. This is purely for the purpose of allowing landlords to claim exemptions early so that they had their exemption claim in place prior to implementation on 1st April 2018.

Enforcement

  • Local authorities will enforce compliance with the regulations.
  • Where a landlord considers an exemption applies allowing them to let their property below the minimum energy efficiency standard, the landlord will need to provide such evidence to a centralised register, the "PRS Exemptions Register". Landlords may be required to submit relevant evidence and details of their exemption to the Register. The Government may use this information to assist local authorities in targeting their enforcement activity.

Compliance Notices and Penalties

Where a local authority suspects that a landlord with a property in scope of the regulations is not compliant, or has not sufficiently proved an exemption, the local authority can serve a compliance notice on the landlord requesting further information it considers necessary to confirm compliance. If it is not provided, or is provided and is not sufficient to provide compliance, the local authority may proceed to issuing a penalty notice.

Penalties for a single offence may be cumulative, up to a maximum of £5,000. Further penalties may be awarded for non-compliance with the original penalty notice where a landlord continues to rent out a non-compliant property; however, penalties would be cumulative up to a maximum of £5,000. The landlord can be awarded a further penalty when one of the following events occurs:

  • The tenant changes
  • The regulatory backstop comes into effect

The penalty regime for non compliance with the regulations will be as follows:

Infringement Penalty
Providing false or misleading information to the PRS Exemptions Register £1,000 Publication of non compliance
Failure to comply with a compliance notice from a local authority £2,000 Publication of non compliance
Renting out a non-compliant property Less than 3 months non compliance
£2,000 fixed penalty
Publication of non-compliance
3 months or more of non compliance
£4,000 fixed penalty
Publication of non-compliance

NB: The penalty amounts are fixed and do not vary according to the severity of the contravention.

Reviews

Upon receiving a penalty notice from a local authority, a landlord may request a review of the local authority's decision to serve the notice. If a landlord requests a review, the local authority must consider any representations made by the landlord and all other circumstances of the case, decide on whether to confirm the penalty charge notice, and give notice of their decision to the landlord. If the local authority is not satisfied that the landlord committed the breach specified in the notice, or given the circumstances of the case it was not appropriate for a penalty charge notice to be served, they must withdraw the penalty notice. If the local authority is still satisfied that the landlord committed the breach, but the landlord still believes the penalty notice is incorrect, the landlord may proceed to the appeals process.

Appeals

Landlords may appeal any penalty notice on the basis that the penalty notice was issued in error (error of law or fact), the penalty does not comply with the Regulations, or that it was inappropriate in the circumstances for the penalty notice to have been served. The appeal would be heard at the First Tier Tribunal (General Regulatory Chamber).

Improvements which can be required

The following improvements are those which a landlord can carry out and which are eligible to qualify so as to comply with the Minimum Energy Efficiency Standards.

  • Air source heat pumps
  • Thermostat boilers
  • Thermostat room heaters
  • Cavity wall insulation
  • Solid wall insulation (internal or external)
  • Cylinder thermostats
  • Draught proofing
  • Duct insulation
  • Hot water showers/systems (efficient)
  • Hot water taps (efficient)
  • External wall insulation systems
  • Fan assisted replacement storage heaters
  • Flue gas recovery devices
  • Ground source heat pumps
  • Heating controls (for wet central heating systems and warm air systems)
  • Heating ventilation and air conditioning controls
  • High performance external doors
  • Hot water controls (including timers and temperature control)
  • Hot water cylinder insulation
  • Internal wall insulation (or external walls)
  • Lighting systems fittings and controls (including roof lights, lamps and luminaires)
  • Loft or rafter insulation (including loft hatch insulation)
  • Mechanical ventilation with heat recovery
  • Micro combined heating power
  • Micro wind generation
  • Pipework insulation
  • Photovoltaics
  • Chillers
  • Gas fired condensing boilers
  • Replacement glazing
  • Oil fired condensing boilers
  • Warm air units
  • Radian heating
  • Roof insulation
  • Warming roof insulation
  • Ceiling improvements (including duct ceiling)
  • Secondary glazing
  • Solar water heating
  • Solar blind, shutters and shading devices
  • Transpired solar collectors
  • Under floor heating
  • Under floor insulation
  • Variable speed driers for fans and pumps
  • Waste water heat recovery devices attached to showers
  • Water source heat pumps
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