Tenant complaint regarding EPC rating of a property

The tenant’s complaint form stated that the EPC gave the property an EPC rating of F, which she says was out of date and the property was actually G at the point it was let.

The tenant stated that an Environmental Health officer surveyed the property and found it to present a severe risk of cold, as there was no heating. She has also complained that she was not given a copy of the EPC or EICR until several months after the start of the tenancy, when she requested copies.

In resolution, the tenant requested an apology and compensation. In response to the issues the tenant raised in her TPO Complaints Form, the letting agent said that they were aware that the property had an EPC rating of F, but believed at the time that it was exempt from energy efficiency requirements on account of being Grade II listed, and that it had been registered accordingly. However, they acknowledged that their understanding of these matters at the time was incorrect.

With regard to the provision of the EPC and EICR, the letting agent said that whilst they were instructed to market the property to let and find a tenant, the landlord took direct responsibility for the move-in process and issuing documents at the start of the tenancy.

Therefore, the letting agent said it was the landlord who was responsible for matters such as issuing copies of the EPC and EICR at the start of the tenancy, and later when the tenant asked. They said that the tenant confirmed that she had had sight of these documents when she signed the tenancy agreement.

Investigation

The Domestic Minimum Energy Efficiency Standard (MEES) Regulations set a minimum energy efficiency level for domestic private rented properties.

From 1 April 2018, private landlords were prohibited from entering into new tenancies to let domestic properties with an EPC rating assessment of F or G, unless an exemption applied, and was registered. Local Authorities can issue penalty notices and fines to landlords who let properties in breach of these regulations.

The legislation sets out specific exemptions which may apply when a property has an energy efficiency rating of F or G. If a property meets the criteria for an exemption, it is possible to legally let it once the exemption has been registered on the National Private Rented Sector (NPRS) Exemptions Register.

 

The above is reflected in the TPO Codes (4f and 6a), which set out agent’s obligations when letting residential property.

The Ombudsman would therefore have expected the letting agent to have established whether the property had a valid EPC, or whether one had been commissioned, before marketing the property to let.

The Ombudsman checked the EPC register and have found that the most recent EPC certificate for the property was issued on 19 August 2019, and was valid for ten years until 18 August 2029.

The letting agent advised that this was the certificate they had sight of when marketing the property to let. It was therefore clear that there was an EPC for the property at the time of the letting. However, at the assessment in August 2019, the property was given an energy efficiency rating of F. As this was lower than the minimum permissible rating for the letting of a property under the MEES Regulations, the Ombudsman would have expected the letting agent to have checked whether the property had been registered as exempt from energy efficiency requirements before proceeding to market it to let.

The Ombudsman did not consider that it was enough for the letting agent to take the word of the landlord that the property was compliant with EPC legislation given its EPC rating and would have expected them to have verified this information for themselves, in-line with their obligations under the TPO Code.

After checking the NPRS exemption register for information about the property, the Ombudsman noted that property was registered for an exemption in October 2022. However, there was no indication that the property was registered as exempt at the point that it was marketed to let in 2021. The letting agent acknowledged that the property was not in fact registered for an exemption in 2021, and admitted that their belief, at the time, that it was exempt, was incorrect.

The Ombudsman was not satisfied that the letting agent carried out sufficient checks, as had these steps been taken they would have discovered that the property was not exempt. She noted that the appropriate course of action would have been for the letting agent to have declined to market the property until an EPC with an energy efficiency rating of E or higher had been obtained, or the property had been registered as exempt.

The Ombudsman was critical of the letting agent for failing to verify that the property was registered as exempt from energy efficiency requirements, and for marketing it contrary to legislation. This aspect of the complaint was supported.

These actions placed the landlord at risk of receiving a penalty notice from the local authority.

Regarding the tenant, the agent had an obligation to bring all relevant material information relating to the property to the attention of the tenant, which the Ombudsman was satisfied that the agent did, including the fact that the property only had an EPC rating of F and had electric heating. Therefore, therefore the tenant was aware that the property was inefficient to heat before making any transactional decision.

In relation to the information that must be provided to a tenant before they move in, the Code says:

13c You must ensure that tenants are provided with relevant and appropriate documentation, statutory or otherwise, prior to their occupation of the property or commencement of the tenancy, whichever is the sooner.

However, these  obligations cover the situation where the agent is responsible for the entire tenancy including set-up and move-in process. The letting agent in this case explained that the landlord wished to carry out the move-in process himself, which was corroborated by the evidence provided.  Therefore, this aspect of the complaint was not supported.

Outcome

 

The Ombudsman supported one aspect of the complaint but, as the tenant was fully aware of the EPC rating and that the property was energy inefficient from the outset, she did not consider that the circumstances merited an award of compensation.