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EPC Regulations already enacted

Submitted by: MikeC (Admin) on 31-Aug-08 02:11:42 PM

Further to a post made a few days ago (Home Information Pack Exemptions to End October 1st 2008), which suggested that Govt was expected to announce an end to the pre-commencement-date HIP exemption for continuously marketed homes, well, it's already in force!

It's been in force for a number of months - since April 6th 2008 in fact - at least for Energy Performance Certificates anyway.

Interpretation of amendments to EPC regulation

This is my interpretation only (I've pasted the actual amendments below), which is hopefully easier to understand, if I'm right!

This amendment adds transitional arrangements to the EPC regs which covers both the sale and rent of buildings.

You don't need an EPC if:
  • the building has been marketed since before last year's commencement dates, continuously (continuous marketing);
  • it came off the market because of an offer, but was later put back on within 28 days because the offer was withdrawn or rejected.
You do need an EPC when:
  • contracts are entered into;
  • October 1st 2008 and beyond, but;

For buildings both continuously marketed and those re-entering the market within 28 days of an offer being withdrawn or rejected, that later sell, on, say, November 1st 2008, an EPC needs to be commissioned when contracts are entered into (and provided to the buyer/tenant before exchange, free of charge).

But there's a curious wording within paragraph 9 (in bold below) which seems to imply that Energy Performance Certificates actually became a duty on all applicable buildings at the contract stage from April 6th too (it's one of those pivotal clauses which rely on the meaning of other paragraphs, which in turn rely on others!).

If my interpretation is right, this effectively means that sellers who have exchanged contracts since April 6th, may have actually unknowingly sold their homes illegally. And these days, ignorance is no defence; even when, just last week, staff manning the EPBD helpline didn't seem to know either, according to DEAs who rang for clarification.

Have a read of the amendments below anyway - I've highlighted some of those pivotal clauses so you can quickly scan for them when trying to tie it all together - a visual aid.

Have I missed something? I've read it several times last night but I was tired.

Read it from the top first - it will make more sense if you do.

"Transitional arrangements – property on market at commencement"

Made: 6th March 2008

Laid before Parliament: 13th March 2008

Coming into force: 6th April 2008


(1) Subject to paragraphs (7) to (9), regulation 5 does not impose any duty in relation to a building to which this regulation applies.

(2) This regulation applies to a building where—

(a) the building is not one in respect of which a duty under section 155(1) or 159(2) of the Housing Act 2004(8) applies to any person;

(b) the building is put on the market by or on behalf of a relevant person before the commencement date;

(c) action taken at any time before the commencement date by or on behalf of the relevant person, made public the fact that the building was on the market;

(d) such action was taken with the intention of selling or letting the building before the commencement date;

(e) such action was sustained to a reasonable extent after it was put on the market and until the commencement date; and

(f) on the commencement date, the building remains on the market.

(3) A building is put on the market when the fact that the building is or may be available for sale or rent is, with the intention of marketing the building on the property market in England and Wales, first made public in England and Wales by or on behalf of the relevant person.

(4) A fact is made public when it is advertised or otherwise communicated (in whatever form and by whatever means) to the public or to a section of the public.

(5) Where paragraph (1) applies, when contracts are entered into for the sale or rental of the building, the relevant person must, if it has not already been done—

(a) make a request which complies with regulation 42(2) for an energy performance certificate as soon as reasonably practicable;

(b) make all reasonable efforts to obtain an energy performance certificate as soon as reasonably practicable; and

(c) when an energy performance certificate is obtained, ensure that it is given free of charge to the person who has bought or rented the building.

(6) Where paragraph (5) applies, all the provisions of these Regulations, except regulations 5(2) and 5(5) shall have effect in relation to the duty imposed by paragraph (5) as if it were a duty under regulation 5(2) or 5(5).

(7) Subject to paragraphs (8) and (9), this regulation, other than this paragraph, ceases to apply to a building—

(a) when it is taken off the market, or

(b) on 1st October 2008,

whichever occurs first.

(8) Notwithstanding paragraph (7)(a), this regulation does apply to a building in cases where, after the building has been taken off the market, it is put back on the market on or after the commencement date—

(a) after the seller or prospective landlord had accepted an offer to buy or rent the building; and

(b) within 28 days of that offer being withdrawn or its acceptance repudiated.

(9) Notwithstanding paragraph (7)(b), where a contract has been entered into for the sale or rent of a building to which this regulation applies before 1st October 2008, paragraph (5) will continue to apply in relation to that transaction.

(10) In this regulation, “commencement date” means the date set out in column 2 of the table in Schedule 1 for the coming into force of regulation 5 in relation to the building.”.

(6) In paragraph 13(9) of the table in Schedule 1, for “7(2)”, substitute “7”.

[Emphasis mine]


Amendments: The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment) Regulations 2008 No. 647.

Amendment notes: Explanatory notes.

Original Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 No. 991 - which has yet to be updated.

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