Two recent decisions have reinforced the importance of landlords understanding and complying with the minimum energy efficiency standards under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (MEES Regulations).
The MEES Regulations aim to improve energy efficiency in the private rented sector and reduce carbon emissions. Since 1 April 2020, it has been unlawful to let or continue to let properties with an Energy Performance Certificate (EPC) rating below E, unless a valid exemption is registered.
Barke v Fenland DC
This case involved a residential property let with an EPC rating of 'F', which breached the MEES Regulations. After the tenancy commenced, the landlord obtained a reassessment of the EPC which upgraded the rating so argued that there was no breach.
The landlord also claimed an exemption, but the exemption had not been properly registered on the PRS Exemptions Register, and the supporting evidence was not provided.
The Tribunal clarified some key legal principles:
- The EPC rating in force at the time of letting is determinative of compliance. Any subsequent reassessment or correction of the EPC rating does not retroactively validate a tenancy that was granted in breach of the MEES Regulations
- Exemptions must be properly registered and supported by full documentation. Failure to comply renders the exemption invalid, regardless of the landlord’s intentions
- Legal responsibility for compliance lies with the landlord, not with managing agents. Delegating responsibility does not absolve the landlord of liability
Gilbert v Hyndburn BC
The decision in Gilbert v Hyndburn Borough Council provides clarification on the application of the MEES Regulations to tenancies that began before they came into force but continued beyond 1 April 2020.
In this case, the landlord continued to let a residential property under a tenancy agreement that had begun prior to the introduction of the MEES Regulations. The property had an EPC rating below the required minimum of 'E'. The landlord argued that the tenant had refused to provide its consent for access to the property for the purpose of carrying out an EPC assessment, and that this refusal should exempt them from compliance requirements.
The tribunal rejected this as a defence. While lack of tenant consent can justify an exemption under the MEES Regulations, the exemption must be properly documented and registered. Specifically, the landlord must demonstrate that a formal attempt was made to obtain consent to carry out the necessary work and that the exemption was registered on the PRS Exemptions Register. The tribunal found that the landlord had failed to meet the evidential and procedural requirements necessary to rely on tenant consent as a valid exemption. The tenant's refusal to grant access does not automatically exempt a landlord from compliance. Instead, it must be formally assessed, documented, and registered as an exemption. Without this procedural compliance, the exemption is ineffective.
Where access issues arise, landlord's should document all attempts to gain entry and carry out assessments, and where appropriate, register an exemption with full supporting evidence. The Tribunal’s decision makes clear that informal reliance on tenant behaviour is insufficient. Compliance must be proactive and procedurally correct.
The tribunal reaffirmed that MEES applies to all privately rented properties from 1 April 2020, including those let under tenancies that began before that date.
These decisions serve as a reminder to landlords about the risks of non-compliance with the MEES Regulations and reinforces that landlords must take active steps to ensure properties meet required energy efficiency standards at the time of letting. Reliance on retrospective improvements or informal exemption claims will not suffice. Whilst these cases relate to the letting of residential properties, it seems likely that the principles will apply equally to commercial lettings.
