Energy Performance Certificates in Scotland
Tuesday, October 14, 2008
Energy Performance Certificates in Scotland
Regulations and Guidance
The Energy Performance of Buildings (Scotland) Regulations 2008 ("the Regulations") were issued on 16 September 2008, in further implementation of European Directive 2002/91/EC on the energy performance of buildings. The Regulations deal with EPCs on sale/letting in Scotland. Click here for further information.
The Scottish Building Standards ("SBSA") have issued this corresponding guidance.
EPCs on sale/letting and exemptions
In Scotland, all commercial buildings (except buildings which are exempt as noted below) will require an EPC on sale/letting with effect from 4 January 2009.
Exempt buildings are temporary buildings with a planned time of use of two years or less, workshops and non-residential agricultural buildings with low energy demand and stand-alone buildings with a total useful floor area of less than 50 square metres which are not dwellings.
Who should provide the EPC?
The seller (if the building is to be sold) and the prospective landlord (if the building is to be let) must make a copy of the EPC available free of charge to a prospective buyer or prospective tenant. Note that the SBSA guidance indicates that this covers new tenancies, not existing tenants renewing a lease.
When should the EPC be provided?
A person becomes a prospective buyer or prospective tenant on the earliest of the dates when that person:-
- requests any information about the building from the owner for the purpose of deciding whether to buy or lease the building;
- makes a request to view the building for the purpose of deciding whether to buy or lease the building;or
- makes an offer, whether oral or written, to buy or lease the building.
Display of energy performance certificates in public buildings
The Regulations also provide that the owner, or where the owner is not the occupier, the occupier, of a public building with a floor area of more than 10,000 square metres, which is occupied by a public authority or by an institution providing services and which can be visited by the public, must display an energy performance certificate in a prominent place clearly visible to visiting members of the public.
EPCs on Construction
All new commercial buildings (except exempt buildings) require an EPC upon construction. All applications for a building warrant for a new building (since 1 May 2007) have had to submit an EPC with the completion certificate.
Here, the list of exempt buildings is similar but not identical to that on sale/letting. They are buildings which do not use fuel or power for controlling the temperature of the internal environment, non-domestic buildings and buildings that are ancillary to a dwelling that are stand-alone having an area less than 50 square metres, limited life buildings which have an intended life of less than 2 years and, notably, conversions, alterations and extensions to buildings other than alterations and extensions to stand-alone buildings having an area less than 50 square metres that would increase the area to 50 square metres or more, or alterations to buildings involving the fit-out of the building shell which is the subject of a continuing requirement.
EPCs in England
More comprehensive guidance, as provided by the Department of Communities and Local Government or the City of London Solicitors, is available in England. For example, in England guidance provides that the assignment of an existing lease is considered to be a sale and will require an EPC, with the assignor being responsible for providing the EPC to the assignee. Whilst not specifically detailed in the guidance provided in Scotland, parties should be prepared for a similar (if not the same) interpretation of the European Directive in practice. Note that the dates for introduction of EPCs on sale/letting in England are different.
There, commercial buildings (except exempt buildings) over 10,000 square metres have required EPCs on sale/letting since 6 April 2008 and commercial buildings (except exempt buildings) over 2,500 square metres on sale/letting since 1 July 2008. From 1 October 2008, all remaining commercial buildings (except exempt buildings) will require an EPC whenever they are constructed, sold or let. This is also subject to transitional provisions. The transitional provisions relax the time at which an EPC must be provided for properties put on the market before the relevant commencement date (i.e. 6 April, 1 July or 1 October 2008), as long as that property remains on the market on the relevant commencement date. In such cases, provided that certain conditions are met, an EPC will not be required on the relevant commencement dates set out above. Instead, when contracts are entered into for the sale or letting of the building, the seller or landlord must:
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commission an EPC as soon as reasonably practicable
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make all reasonable efforts to obtain an EPC as soon as reasonably practicable;
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when an EPC is obtained, give this to the buyer or tenant free of charge.
The transitional provisions will apply until 4 January 2009 for commercial buildings, or until the property is taken off the market (whichever is earlier). The obligation to commission and provide an EPC after exchange of contracts will continue to apply after 4 January 2009 if the contract was made before that date.
For Further Information
To find out more, please contact Robin Corbett, Head of Property, on 0141 228 8000 or email rcorbett@biggartbaillie.co.uk.
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The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.