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Energy Efficiency Regulations

Since 1 April 2016, Part 2 of the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 have been in force, meaning that Landlords may no longer unreasonably refuse consent to a tenant’s request to make energy-efficient improvements to their residential properties.

A “relevant energy efficiency improvement” maybe those that are listed in Schedule 1 to the Green Deal (Qualifying Energy Improvements) Order 2012 or measures that mean a property that is not currently connected to a mains gas supply but is within 23 metres from a main or transporter will become connected. The improvement must be entirely financed at no cost to the Landlord, so for example funding by a local authority, government or even the tenant themselves.
The Regulations states that a Landlord cannot unreasonably refuse consent, but there are certain exemptions to this statement, including but not limited to the following:

  • If in the 6 months prior to the Tenant’s request another tenant has made a similar request in relation to the same property and the Landlord complied with such a request, a Landlord may reasonably refuse consent.
  • If the notice has been served in order to terminate the tenancy, a Landlord may reasonably refuse consent.
  • If in the 6 months prior to the Tenant’s request the Landlord has proposed a similar improvement, to which the Tenant failed to respond, the Landlord may reasonably refuse consent.
  • If the improvement requested by the Tenant requires third party consent, and the same is refused, or granted subject to conditions with which the Landlord cannot comply, the Landlord may reasonably refuse consent.

The Process
Firstly the Tenant is to make a request for the energy efficiency improvement to be carried out. They must make this request, provide evidence of funding and also enclose a survey or other report that shows the improvements have actually been recommended.
The Landlord must then respond within one month of the request with an initial response, by either consenting to the works, refusing the works (with evidence that the refusal is reasonable), requesting further information in relation to the works, stating that third party consent is required, or showing intention of a counter-proposal.
If consented by the Landlord in the initial response, they should serve a notice with their full response providing the Tenant with the relevant dates it wishes to carry out the works. The Tenant is then required to consent and should they not do so, the Tenant no longer has the right to carry out the specified improvements. If the Landlord does not consent to the works within their initial response, they will then have to serve a full response within three months or serve a counter proposal within four months.
Where there is a Superior Landlord and their consent is required, the Landlord must serve the Superior Landlord with a copy of the Tenant’s request and their initial response within one month. If they are proposing to make a counter-proposal they must also serve a copy of this on the Superior Landlord. A Superior Landlord must then provide a response to the Landlord confirming whether or not they consent to the works.
Penalties
Should the Landlord refuse consent or fail to make the improvements by the relevant date, the Tenant may take the matter to the First-tier Tribunal. They will then determine whether or not the Landlord has failed to comply with the Regulations and they can essentially provide the Tenant with the requisite consent, allowing the improvements to take place.
Conclusion
The Regulations essentially provides Tenants with a potential right to carry out alterations that could affect the structure of a Landlord’s property, irrelevant as to what is detailed within the tenancy agreement. This means that the Landlord’s capacity to limit the works that a Tenant may undertake at a property could be restricted. Therefore it is advised that Landlord’s make themselves familiar with the new Regulations and ensure they are aware of the correct procedures required should a Tenant put in a request.
It is aimed that the Regulations now in force work hand in hand with those due to come in on 1 April 2018. The rule to come into effect from 2018 is that meaning that new leases in relation to residential properties cannot be granted over a property with an EPC rating of less than ‘E’. Therefore Landlords need to ensure their properties meet this minimum rating by April 2018 if they wish to grant any new leases. Under the rules already in place, the Regulations are allowing Tenant’s to take the lead on this in the hope that by 2018 there will be fewer properties below the obligatory rating.
For further information please contact Tom Warrender.