Advice for solicitors

As a solicitor you need to be aware of your clients’ obligations and rights whether they are the buyer, seller, landlord or tenant and ensure that you give them advice that is relevant, accurate and practical.

Unfortunately, the regulations make that a bit more difficult than it necessarily needs to be, but as in all things related to commercial property transactions, knowing what your client has to do and when, is the key.

• Sellers and landlords need to make sure that they are able to provide an EPC on request free of charge to a prospective buyer or prospective tenant. This can be as early in the process as someone asking for details of the property being offered. The EPC therefore needs to be near the top of the list of documentation when you are checking if your client is “prepared for sale”.

• If your client already has an EPC then you are good to go.

• If your client does not have an EPC then it should be prepared before the property is marketed since if an EPC is requested and your client fails to make one available within 9 days then he is liable to receive a penalty charge notice from the enforcing authority (the local authority) for the sum of £1000.

• There are transitional arrangements in place until 31 March 2009 which take account of the fact that there is a lack of knowledge about EPCs and possibly more crucially a shortage of trained assessors. This allows a period of 7 days after the expiry of the original 9 days and also gives the owner 9 days to supply the EPC after its receipt. This seems to have been drafted without any consideration of how long it will take an assessor to produce a certificate and in effect allows owners and landlords free rein up to 1st April 2009.

It’s worth pointing out a few quirks of the regulations at this stage.

• The question of whether assignations and sublettings are transactions which are likely to require an EPC is not clear. Most assessors will say yes, whilst many solicitors are saying no. The government are reported to have responded to an e mail enquiry by stating that in framing the regulations “the intention would not have been to include sub-leases or assignations”, but there is currently (January 2009) no official guidance on this point.

• There is nothing in the regulations that requires the display of an EPC other than in the case of public buildings greater than 1000m2. However the Scottish Government has issued a direction to local authorities which requires that an EPC is affixed to the building. There is no restriction on where the EPC is to be affixed and only public buildings greater than 1000m2 need to have the certificate visible.

• A register of EPCs must be kept but there is no guidance as to who keeps it and how it is kept. In practical terms, the companies providing the software to calculate the energy use in the building are currently controlling this by making each EPC uniquely referenced and stored online.

EPCs are prepared by assessors who are members of organisations that have agreed a protocol with Scottish Building Standards including the RICS, CIBSE and BRE.

Buildings are measured and assessed in zones according to the use of each area and this data, along with details of the construction and services are fed into a computer programme which calculates the amount of CO2 produced per m2. This corresponds to ratings from A to G which are shown on the certificate.

The process also generates a short form report on measures that can be taken to improve the energy performance of the building, along with details of the payback period involved.

Details of how you can obtain a quotation for an EPC area available by following this link.