Matt Walker
Partner
Article
9
New Prime Minister Rishi Sunak confirmed in his opening speech on 25 October 2022 that he promises to deliver on key manifesto commitments, including protecting our environment. The desire to take action against the climate crisis is ever growing and is at the forefront of our collective concerns. Environmental consciousness used to be a choice but that is not the case anymore.
As the Government push forward with their agenda to reduce carbon emissions, landlords of non-domestic (commercial) properties must prepare for the unavoidable tightening of measures from April 2023. Our update will explain what to expect and how to prepare with only five months to go.
An EPC is an energy performance certificate, issued by an assessor, which details the energy efficiency of the property to which it relates and is valid for 10 years from registration on the EPC Register. An EPC is required following the construction of new buildings, where certain alterations are undertaken or where an existing building is to be sold or rented out (including assignment of an existing lease).
The Minimum Energy Efficient Standard (MEES) Regulations ("MEES Regulations") prohibit granting a lease of a commercial property with an EPC rating of F or G as this is classed as sub-standard, unless improvements works are carried out or an exemption applies.
From 1 April 2023, the prohibition will apply to all existing leases of commercial properties meaning that landlords cannot continue to let properties with an EPC rating of F or G.
Commercial properties let for more than 99 years or less than six months fall outside of the remit of MEES Regulations. The MEES Regulations will only apply if a property already has an EPC or the requirement to obtain one is triggered (for example by carrying out works or selling the property). It is not realistic or advisable to not obtain an EPC to avoid complying with MEES Regulations given there are multiple triggers as mentioned previously and extra triggers are being considered by Government.
The prohibitions on letting sub-standard properties are not absolute. There are certain exceptions which, if applicable, allow a landlord to let or continue to let a sub-standard commercial property. If an exemption applies, this must be registered on the Private Rented Sector (PRS) Register and will generally be valid for five years but note that it cannot be transferred. Examples of exemptions:
Breaching the MEES Regulations can result in two key penalties applying: a financial and/or publication penalty. For a breach of letting restrictions for three months or more, a landlord could face a fine up to £150,000. If a landlord provides false or misleading information, or fails to comply with a compliance notice, a fine of £5,000 can be applied. If a breach occurs, details may also be entered onto the publicly accessible part of the PRS Exemptions Register. This carries the risk of adverse publicity for a landlord and may make a prospective buyer or tenant more cautious.
The Government have projected their future goals for EPCs following April 2023 and landlords need to be aware that further measures are likely to be imposed in the years to come. The biggest proposal being that the minimum EPC rating will increase to C by 2027 and to B by 2030. If implemented, this means that from 2023, landlords will have four years to increase to a C rating and from 2027, landlords will have three years to reach a B rating (or make sure an appropriate exemption is registered).
Further Government reforms currently being considered to watch out for include:
It is expected that eventually the majority of commercial properties will require EPCs as the Government push ahead with their agenda to net zero, meaning MEES Regulations will also need to be complied with. The minimum standard increasing to C, then B, may seem some time away but landlords may wish to get ahead of the regulatory change as improvement works may be time consuming and costly.
With April 2023 fast approaching, landlords should not hesitate to take action and:
Environmental alternations should not be seen as a purely legal and regulatory exercise; improving a building's carbon footprint will likely result in better property valuations and strengthen a building owner's reputation. Given the environment is a hot topic and set to stay, tenants may be more inclined to lease buildings that are going above and beyond to minimise their carbon footprint. Landlords are encouraged to begin creating strategies on how to approach April 2023 and beyond to make sure the roll out is smooth across their property portfolios.
For more information, please contact Matt Walker, Clare Swinnerton or Haseena Hussain.
NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.