With just two weeks to go, the Government has finally produced its Q & A guidance on the changes to Energy Performance Certificates – complete with one glaring anomaly.
CLG are now under pressure to clear this up and have indicated that they may release further guidance in certain areas.
What agents now have gives seven days from commencement of marketing for an EPC to be obtained, followed by 21-day period of ‘grace’ should it have proved impossible to obtain one.
However, the guidance contradicts itself, by then saying that the EPC must be made available to prospective buyers and tenants when they request information, or when a viewing takes place.
The guidance underlines that the EPC must not be provided later than either of those two events.
If CLG stick to this, it means that agents might not be able to conduct viewings on the first day of marketing – or even within the first week, or at a push, the first 28 days, whilst awaitingan EPC.
Nick Salmon said that the requirement to produce an EPC on a viewing ‘sets every alarm bell ringing’
He said: “Does it means that if I take a property on the market and the EPC is ordered, that I cannot do viewings on the property unless the EPC is actually at hand?
“Have they just killed off first-day marketing again.”
The requirement to have an EPC ready for viewings is repeated on both pages 3 and 4 of the guidance.
On page 4, it says:
Q. When should the EPC be made available under the new regulations?
A. The EPC should be made available as early as possible and in particular, when a prospective buyer or tenant requests information in writing or views the property in question. In addition, the seller or landlord must ensure that an EPC has been given to the person who ultimately becomes the buyer or tenant.
Salmon said: “We need an urgent answer to this. Unless CLG make it clear that viewings can be made while the EPC is ordered but awaited, we are back in the dark days of their mega-stupidity with HIPs.”
The guidance, which cites an industry survey which found that 36% of estate agents believed EPCs were only needed at the point of sale as one of the reasons for introducing the changes, answers a number of outstanding issues, although it does suggest that agents needing further clarification take their own legal advice.
It makes it clear that the ultimate responsibility to make an EPC available to potential buyers and tenants rests with sellers and landlords. However, under a new duty, an agent must be satisfied that an EPC has been commissioned before marketing can start. Trading Standards officers can ask for evidence of this.
The seller, landlord or their agent must use ‘all reasonable efforts’ to obtain the EPC within seven days of the start of marketing. A further 21 days is allowed if necessary. “The effect of this is to provide an absolute duty to obtain an EPC within 28 days of the property going on the market,” says the guidance.
If the property remains on the market after 28 days without an EPC, Trading Standards officers may serve a £200 penalty notice ‘even if there is a legitimate reason for the delay’.
The guidance also defines ‘written particulars’ and what the ‘giving’ of written particulars is.
“The giving of written particulars includes making them available electronically, such as in an email or as information on a website.” In other words, agents will have to retrieve the EPC from the central Register and attach it to online written particulars.
However, newspaper adverts and estate agents’ window cards appear to be let off the hook. This, too, needs further clarification as the guidance actually specifies ‘lets’.
Q. Do newspaper adverts or window cards for property lets meet the definition of written particulars?
A. No. The requirement to attach a copy of the front page of the EPC to written particulars is where an agent provides written particulars to a person (i.e. a specific individual) who may be interested in buying or renting the building.
This implies that a copy of the front page of the EPC does not need to be attached to ‘advertising material’, i.e. a newspaper or window card.
The guidance also clarifies what ‘attached’ means: the first page of the EPC can be incorporated into the property details, or attached.
CLG has stuck to its guns about not allowing addresses to be redacted from residential EPCs, although redactions are allowed from commercial EPCs.
It says addresses cannot be removed from domestic EPCs, and in an apparent swipe at NFoPP and RICS, which wanted redactions, the guidance says: “Following discussions with property agents’ representatives it was agreed there was no requirement to extend this service to domestic sales and rentals.”
One issue which is not specifically addressed in the Q & A concerns lists of available rental properties which are sent or emailed to applicants.
However, as the guidance suggests that properties listed would meet the criteria of ‘written particulars’, a list could hypothically list 15 rental properties on an A4 sheet of paper, and then have individual EPCs attached.
The changes kick in on April 6. CLG has provided EAT with no link to the guidance, but any agent who has not seen the Q & A guidance can email EPC.Enquiry@communities.gsi.gov.uk