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Proposed change to EPC regulations adds massive loophole

I have to ask; do DCLG really not understand their own regulations?

Within the proposed changes there is a supposed clarification of the regulations.

“This technical amendment to Regulation 5 is intended to remove the erroneous belief that the provision of the EPC can be delayed until shortly before the parties enter into a contract for sale or rent. This will be achieved by deleting the words “before entering into a contract to sell or rent the building or, if sooner” in Regulation 5(2)(b) of the EPB Regulations.”

The regulations only ever allowed you to wait until entering into the contract if neither of the other triggers happened first i.e. either a viewing arranged or written particulars provided. All DCLG ever had to do was point that out, but despite having this raised out at several meetings I attended they never did. Their solution now is to remove the failsafe catch-all clause. The result is that if somebody buys or rents a property they already know, or buys a business which comes with buildings, the property transaction can now quite legitimately happen without the need for EPCs as neither of the other triggers will occur. That is putting an extremely large hole in the bucket.

For anyone not familiar with that part of the regulations, they state the EPC is required...


(a) at the earliest opportunity; and

(b) in any event before entering into a contract to sell or rent out the building or, if sooner, no later than whichever is the earlier of—

 (i) in the case of a person who requests information about the building, the time at which the relevant person first makes available any information in writing about the building to the person; or

 (ii) in the case of a person who makes a request to view the building, the time at which the person views the building.

The part that DCLG appear not to understand is the convoluted phrase in the above section "if sooner, no later than whichever is the earlier of-".

What it actually means is you cannot legally provide written particulars to a prospective buyer/tenant or let them see the building without providing an EPC. That has always been in the regulations and has always been enforceable if DCLG had the will (or understood the meaning?).

The "in any event before entering into a contract " can only ever apply if the building has been sold/let without being viewed and no particulars have been supplied (may happen if you already know the building or if you buy a business that owns/rents a building). Unfortunately the proposed amendment to Regulation 5 creates an additional loophole so these transactions will fall outside the requirement for an EPC. Watch out for the sudden increase in transactions to people who (allegedly) already knew the building. Solicitors who have got used to insisting on an EPC before they complete will now have to decide whether one is applicable or not. Talk about confusing the process and making the job harder for Trading Standards!

On a similar theme what is the change in period to secure an EPC all about?

“The current 28 day period within which an EPC is to be secured using ‘reasonable efforts’ will be reduced to 7 days; if after that 7 day period the EPC has not been secured the relevant person will have a further 21 days in which to do so”.

So it’s still 28 days then!

There are definitely changes required to the regulations, but please lets have some that make sense, increase clarity and improve the process.

Oct 2011

Ian Sturt DipHI, DipNDEA(L4), Dip DEC

HI Devon Energy Assessment

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