Law governing Energy Performance Certificates set to change in April

Law governing Energy Performance Certificates set to change in April

The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment) Regulations 2011 will come into force on 6 April 2012.  It makes several changes to the existing legislation, and failure to comply with these can lead to fines of up to £5000.  Set out below are the main changes.
The first change to the regulations concerns the commissioning of an EPC.
Under the current rules after the suspension of HIPs in 2010, the duty to ensure that an EPC is commissioned before the property is put on the market only covers residential properties.  Where an EPC has been commissioned but is not yet available, the seller has 28 days to use ‘all reasonable efforts’ to obtain it.  This 28 days starts from the day the property is put on the market.  
From 6th April the following changes will be made:
1. A property seller must commission an EPC before placing the property on the market, unless a valid EPC is already available.  This requirement covers all property, whether residential or commercial.  
2. The seller has seven days to obtain the EPC using ‘all reasonable efforts’
3. If an EPC has not been obtained in this time, the owner has a further 21 days to secure it.  This is an absolute deadline and failure to obtain an EPC after this time will lead to penalty charges.  There is no defence of using reasonable efforts after this time is up.  
The aim of this amendment is to stop EPCs being produced late in the conveyancing process.
The second change is to the information to be contained in the property particulars.
The current law states that for residential sales the seller must include either the asset rating or the EPC with the written particulars of sale.  
From April, it will be a requirement to attach the first page of the EPC to the particulars of sale.  This will apply to all properties, extending from residential sales to include commercial sales and lettings.  Where the address is omitted from the particulars, it may also be removed from the EPC.  
It is not enough for the EPC to be provided as a loose insert to the particulars.  It must be physically attached.    
The third change is to air conditioning reports.
EPCs have to be lodged in a central government register, maintained by Landmark.   Under the existing regulations air conditioning systems over 12kW are inspected and a report is obtained.  This report can be lodged on the central register, but it is not mandatory.  
The amendment to the rules will mean that from April it will be an obligation to lodge air conditioning reports on the central register.  
Changes to Liability to those working in the property market.
The new law will affect those who work in the property market.  Previously those acting on behalf of the seller must have been satisfied that an EPC has been commissioned.  They have also been under a duty to use reasonable efforts to obtain the EPC within 28 days.  
The new law is more onerous.  Those who act for a seller must need to check that an EPC has been commissioned before marketing any property.  They may need to produce a request for the EPC to show to enforcement officers.  
The new time limit of seven days also applies to those acting for sellers.  If the EPC is not obtained by this time, there is a 21 day period in which it must be secured.  
The law refers to ‘a person acting on behalf of’ the seller or landlord.  It could be argued that this would mean that more than estate agents and surveyors are covered by the regulations.  
The new regulations will continue to be enforced by the local weights and measures authority, along with local authority trading standards departments.  
Fines for non-compliance are up to £200 for residential properties.  For commercial properties fines start at £500 and rise up to £5000 depending on the rateable value.  
The amendments to the legislation relating to EPCs are quite small, and should be easily assimilated into practice.  However, not being aware of the rules could lead to costly fines.  

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