As we predicted in our article in October, following the closure of the consultation period in September 2014, the Department of Energy & Climate Change has now laid its Private Sector Minimum Energy Efficiency Standard (MEPS) Regulations before Parliament.
Commercial property lawyer and energy performance specialist at Keystone Law, John Stephens, said: “We have always expected that the Government would announce this as the next step to try and meet their obligations in reducing greenhouse emissions related to the occupation of property. The real estate sector has been gearing itself up to take on board these new requirements; however, they could have a significant impact for those who are unprepared.”
MEPS will come into force by on 1 April 2018. This means that a landlord of property that falls below the defined minimum energy efficiency rating (Band E) will be prohibited from letting that property unless he first carries out improvements to bring it above the threshold standard. The draft Regulations set the threshold, as expected, at Band E.
Having deliberated on the reposes to the consultation, the DECC has made a number of policy decisions. In outline these are as follows:
The Regulations will apply to landlords on the grant of leasehold interests of non-domestic property in England and Wales. There is a parallel scheme for domestic property. Properties let for a term of 6 months will automatically be excluded (provided that the grant of the interest does not mean that the tenant will have occupied the property for over 12 months). All non-domestic properties are caught except for those that do not require an EPC.
Improvements that can be exempted
The Department of Energy and Climate Exchange expresses the intention that only permissible, appropriate and cost-effective improvements should be required. Consequently, landlords can obtain exceptions on a letting-by-letting basis if:
When this will start
Enforcement and Penalties
This is clearly going to be of concern to landlords and to tenants and there is a danger that adversarial negotiation will be become more prevalent if parties pursue their interests according to a narrow understanding of where their best interests lie.
Landlords should now be progressing plans to get their portfolios into shape to meet these new Regulations.
Points to address include the service charge, the alterations provisions, the reinstatement provisions, the rent review clause and the provisions for landlord’s access to the property.
Where the property is likely to have a rating below the minimum standard, the landlord should be looking to have the ability to carry out energy-efficiency improvement works during the course of the current lease. Without this the landlord faces having a void between the end of the lease and the creation of a new letting.
Some landlords may be able to take a commercial advantage over their competitors by recognising that providing energy-efficient properties to let to tents will decrease the property’s cost in use to the tenant, make the property more attractive to prospective tenants and give the landlord a reputational benefit. Whether that happy prospect materialises, it is clear what the direction of travel is in relation to policy on energy emissions from buildings.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.