Feature
This creates something of a problem. The first page of the EPC includes the address of the property. It is not permissible to redact or alter the EPC in any way. In commercial property deals it is possible to approach a new government body which has statutory authority to redact addresses. However, it can only do this in relation to commercial property deals and so residential EPCs cannot be altered in any way. This is of some concern to agents. Making the address available on marketing literature will potentially flag up a vacant property to squatters. It will also encourage an increase of ‘scraping’ by less scrupulous agents who will extract the address information and use it to approach landlords and vendors with alternative deals. There is only a partial solution to this issue;
agents cannot redact the EPC, however, they should look at their terms of business. Notwithstanding the decision in Foxtons v Pelkey-Bicknell it is possible to write a terms of business in such a way that an agent can seek damages where they are a sole agent and the landlord or vendor deprives them of the opportunity to sell or rent the property by accepting an offer elsewhere.
EARLIER COMMISSIONING The original regulations stated that for sales purposes an EPC had to be commissioned before marketing commenced and that all reasonable efforts had to be used to produce it within 28 days of the start of marketing. This time limit has now been shortened to just seven days. If an agent is not able to produce the EPC in that time then there is a further 21 days to produce the document but it will be necessary to show that reasonable efforts were made in the seven day window.
REDUCING CONFUSION The original EPC regulations required that an EPC be made available ‘at the earliest opportunity’ and at the first stage of providing written information about the property or conducting a viewing. Unfortunately the same part of the regulations also states that an EPC must be made available ‘in any event’ before a contract for rental or sale is entered into. Unfortunately, many estate agents read this provision as saying that they did not have to produce an EPC until a sale was definitely going ahead. This error has been cleared up by deleting the ‘in any event’ provision from the regulations.
EARLIER AVAILABILITY Originally an Asset Graph had to be provided for sale property with any written particulars. As detailed above this provision is widened to require the first page of the EPC to be provided with these and the obligation has been extended to apply equally to lettings. However the real change comes in the alteration to the definition of written particulars. Written particulars are now deemed to be written information about a property which includes two items from a list.
30 l June 2012 l TheNegotiator
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“Making the address available could flag up empty properties to squatters.”
The list is four items long for a sale property and five for a rental property. For sales the list is: l A photo of the building or any room in it;
l A floor plan; l Room sizes; l Overall size of the property.
For rental property the extra list item is the
proposed rental price of the property. This change creates a serious problem,
particularly for the rental market as it means that any written information about a rental property which includes a photo and the rent sought will be deemed to be written particulars and the first page of the EPC will need to be made available with it. This could make newspaper advertising and window cards an intolerable economic burden for many agents due to the need to fit in an A4 size EPC page alongside each advert. However, the guidance produced by the
DCLG alongside the amended regulations gives a different picture. This guidance states that the requirement to given an EPC in this way is not intended to apply to newspaper advertising. While this is clearly wrong on a strict reading of the regulations it is likely that most local authority officers will follow this guidance. Therefore it is unlikely that an agent who is
failing to provide EPCs in its newspaper advertising will have significant problems. The guidance also states that a hyperlink or QR Code to an EPC will not be acceptable but this seems to contradict the regulations which state that an EPC must only be made available. This phrase is being interpreted in a very restrictive way by the DCLG but is not likely to receive a similar interpretation in the courts. Agents should also remember that the
offence is committed by the landlord or vendor and not by their agent. Agents should therefore look carefully at their terms of business and seek to put the onus on their clients to decide whether they wish to place EPCs in newspaper adverts or in window displays.
NEW EPC REGISTER
Finally, there will also be a new register of EPCs. This is primarily designed to allow approved bodies to carry out studies on efficiency of properties and possibly to pave the way for future measures, such as the proposal to make it an offence to let property with an EPC asset rating at the bottom end of the scale. For now, individual property owners will be able to opt-out of this register – but this is not an opt-out of any of the obligations set out above!
CONCLUSIONS The actual impact on the ground of these changes is hard to quantify. It is unlikely that local authority officers will suddenly begin to enforce zealously the changed regulations. Even where they do it is likely to be by way of fixed penalty notices rather than prosecution. Arguably, these changes are something of
a tacit admission of failure. The EPC was partly intended to create a ‘market’ for energy efficiency in the residential sector by providing information about the relative efficiency of properties. This has largely failed to materialise. The new design of EPC and the requirement to make more of it available at an earlier stage is clearly an attempt to give it greater visibility and stimulate the current flagging interest of tenants and purchasers. However, in a time of increasing supply shortage, especially in the South-East it is doubtful if this will be successful. l
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