Running out of energy

Energy Performance Certificates (EPCs) for rented properties were introduced from October 2008. With a life span of 10 years this means that they are beginning to run out. There were some produced from August 2007 where a house was sold but this will be less common.

The first and most important thing to understand is that, unlike a gas safety record, there is no need to get a new EPC simply because the current one expires. The law defines when an EPC is needed, and one is needed when a property is put on the market for sale or letting. With an existing letting, as the property is not being marketed, no EPC is needed.

This even applies if you are arranging a renewal to the existing tenant. The logic behind this is that the EPC gives a standard assessment of the energy consumption of the property whereas the tenant who is living there knows exactly what the energy costs are, they are paying the bills!

Therefore the first time a renewal EPC will typically be needed will be when the tenant gives notice and the property is to be advertised for sale or a new rental.

This rule about the EPC running out also affects the Minimum Energy Efficiency Standard (MEES) which is based on the requirement to ensure properties reach at least band E or an exemption is registered. If the property is not legally required to have an EPC (even if one was produced over ten years ago), then MEES will not apply until the property is required to have an EPC.

As the software for producing EPCs has been changed over the last ten years, some properties, particularly those with solid walls, may find that if the property was band F, a new EPC may then take them into band E anyway.

Changes to Possession Rules

The Civil Procedure Rules are the rules that govern how the courts work.

An issue came to light back in the case of Bristol City Council v Hassan where a tenant breached a suspended possession order and the court held this meant they had legally lost their tenancy even if the landlord did not enforce the judgement and left the tenant in occupation. This situation is referred to as a “Tolerated Trespasser”. Significantly the normal landlord tenant relationship has ended and in Mr Hassan’s case he had lost his right to buy the council house.

There was another case, Knowsley Housing Trust v White [2008] EWHL 70 where the same question was posed for Housing Act 1988 tenancies, including the assured shorthold tenancy.

Following this White case, the Housing Act 1988 was amended by the Housing and Regeneration Act 2008 to say that the tenancy would not end till any court order was enforced by a bailiff.

This increased attention to suspended orders also raised the point in the Civil Procedure Rules that required a landlord to apply to the court in order to be able to apply for the bailiff on a suspended order. This was based on the wording of part 83.2(3)(e) where the relevant parts said :

“(3) A relevant writ or warrant must not be issued without the permission of the court where—(e)under the judgment or order,any person is entitled to a remedysubject to the fulfilment of anycondition, and it is alleged that thecondition has been fulfilled.”

The changes brought in from the 1 October 2018 now adds the following:

“(other than where non-compliance with the terms of suspension of enforcement of the judgment or order is the failure to pay money)”.

The means that a judgement for rent arrears, suspended on the basis of payment of the arrears, does not need a court hearing if the tenant breaches the condition of the suspension, ie fails to pay the amount of the rent and arrears stated in the judgement. You still have to apply for the bailiff if the tenant does not move out of their own choice, but you don’t need the court’s permission.

If, however, the suspension is based on anti-social behaviour or any reason other than rent, the landlord will not be able to apply for a bailiff without first applying for a court hearing.

The logic is that the rent arrears can be evidenced from paperwork but anti-social behaviours is a more subjective judgement.