Walsall Council wrongly Interpreting-Changing Housing law and fining Landlords

Walsall Council wrongly Interpreting-Changing Housing law and fining Landlords

14:57 PM, 26th February 2021, About 5 months ago 14

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A landlord mate has sent me the below issues with Walsall Council and has asked for anyone’s help/experiences:

Have any of you had any trouble with the pilot EPC/MEES scheme that Walsall Council has undertaken.  In brief, they are issuing landlords with Compliance Notices with £5000 fines if you don’t comply.  This pilot scheme is set to be rolled out countrywide and will affect all landlords.

The issue I have with them centres around the EPC regulations that require all properties marketed for sale or let after 1st October 2008 needing an EPC.  This fact is not in dispute with me, but only properties marketed or let after 1st October 2008 need an EPC, any with tenancies in place before that date that have had no change of tenancy agreement or modifications have never legally required an EPC because they fall before and thus outside of the regulations.

See this current Government tool that is used to determine if a landlord falls under the regulations or not.  This document was last updated on 4th May 2020 and is the most current version of this Government document.

https://www.gov.uk/guidance/domestic-private-rented-property-minimum-energy-efficiency-standard-landlord-guidance#find-out-if-your-property-is-covered-by-the-regulations

The NRLA are very clear that properties let before 01/10/08 fall outside the regulations, but Walsall council keeps saying an EPC is needed but without actually pointing to any legislation that substantiates their claim.  Dealing with them feels like trying to knit with jelly!



Comments

by Jessie Jones

16:05 PM, 27th February 2021, About 5 months ago

You could always dispute the fine and request a hearing at a First Tier Tribunal, but the hassle . . . . . .
Alternatively, the cost of getting an EPC is around £50.
Councils are a law unto themselves and will happily spend many many 1000's of tax payers money to fight a case, even when they are in the wrong.

by TheSwan

17:43 PM, 27th February 2021, About 5 months ago

Without an EPC the house falls outside of the regulations that are coming to increase the EPC level to a C and potentially beyond. But once an EPC is obtained it will come in line with those regulations and that would likely cost thousands in upgrades to keep the house in line which is difficult with houses that are 100 years old so it's not just about the £50 EPC unfortunately. Those upgrades are also not appropriate for very low capital value houses either.

by Bob S

23:47 PM, 27th February 2021, About 5 months ago

A similar situation that I’m aware of in a different location has an AST starting prior to 1.10.08, being renewed a couple of times before 1.10.08 and eventually becoming periodic prior to 1.10.08. It is a contractual periodic so the start of the current tenancy was on the first occupation prior to 1.10.08 (Mick - it might be worth your mate checking which form of periodic it is as a statutory means it’s a new tenancy at the end of the fixed period but on a rolling basis and the dates might not work in his favour). In the case I refer to the agent didn’t do their research and tried to deinstruct the LL as they hadn’t got a ‘valid’ EPC.
The LL eventually got an opinion in their favour from trading standards as the EPC policing body (but through the council) that the property was outside of MEES and therefore did not warrant an EPC.
It’s a challenging conundrum to be find for failing the test to be inside legislation that would fine you if you were!
The question for trading standards should be ‘is there provision in the MEES for fining a LL for being outside of MEES’? And if there isn’t, then how could they defend the council for arbitrarily doing so?

by Mark Brown

10:59 AM, 1st March 2021, About 5 months ago

If the Council keep sending demands then sue them for harassment.

by TheSwan

13:37 PM, 1st March 2021, About 5 months ago

I'd be interested in how the other landlord got the opinion in their favour that they fell outside the of the MEES. I didn't know that trading standards were the ones to make decisions surrounding MEES and the EPC requirements.

My tenancy contract gives the rent per month and then says "the period mentioned here will form the basis of any subsequent periodic tenancy." It gives the initial payment then says "and there after by equal monthly payments" and then it gives the amount and the day of the month that the amount is due. I spoke to the NRLA and they have reviewed my tenancy agreement and say mine is contractual.

by Bob S

15:39 PM, 1st March 2021, About 5 months ago

Reply to the comment left by TheSwan at 01/03/2021 - 13:37
I’m certain that it’ll take someone with greater legal experience to answer in detail and with more surety but my understanding of the other situation is that the EPB Regulations that came in as the UKs reaction to the EU Directive of same, gave rise to the Home Information Pack for larger homes on 1.7.2007. On 1.10.2008 this was applied to rental properties with a forward look rather than retrospectively, ie., on sale or rent. The MEES Regulations were subsequently introduced to rightly apply a focus towards improving the housing stock energy efficiency although interpreted as targeting LLs to apply the thumb screws. The following link will hopefully help with some of the history.

https://en.m.wikipedia.org/wiki/Energy_Performance_Certificate_(United_Kingdom)

The EPB Regulations as below section 38 identifies that weights and measures (normally operating through trading standards) have the responsibility of enforcing the EPB Regulations.

https://www.legislation.gov.uk/uksi/2007/991/contents/made

So, my understanding of the other case is that the AST started before 1.10.08 and after subsequent renewals on the same terms became a periodic on the same terms all before 1.10.08. As it was not stated in the AST to become a statutory periodic and conversely a memorandum of agreement was signed by both parties prior to the end of the fixed tenancy it therefore became a contractual periodic and therefore has not become a new tenancy warranting marketing or a new AST. As the AST pre existed the 1.10.08 date it does not fall within the EPB Regulations and therefore apparently does not fall under MEES as there is nothing to apply the thumb screws to.

I’m sure there are some who will identify the minimal cost of an EPC but sadly I’ve watched the other LLs look older and greyer as the tenant refuses access to all and sundry and that includes dealing with the subject of EICRs.

It’s easy for many LAs and web commentators including agents to talk about ‘all buildings’ needing EPCs or indeed listed building ‘not’, but the devil is in the detail and thorough research is needed to understand the position that the courts would take.

If nothing else comes out of this I’d say check what form of periodic you have as it affects council tax, deposits, notice periods, application of new regulations, rent reviews....

And ....

Does either EPB Regs or MEES Regs allow LAs provision to apply their own interpretation to the way penalties are allocated or under LA regulations can the LAs do the same anyway?

Or it may simply be poorly crafted words by some underling that becomes the point of legal debate at the LLs cost.

by TheSwan

16:38 PM, 1st March 2021, About 5 months ago

I guess the devil is in the interpretation. Gotta love the lax wording of government documents that allow councils to interpret legislation badly oppressing landlords to accept what they say due to lack of time or energy or funds. But I never liked bullies......

by Mick Roberts

7:12 AM, 2nd March 2021, About 5 months ago

Reply to the comment left by Bob S at 27/02/2021 - 23:47
Yes they on the case thanks to your lots help.

I start losing it as soon as the words Contractual & Statutory & Periodic are mentioned.

I've got enough on with trying to get the last ECIR's done before 1 April.
And I've now got to start telling all tenants we need solution, as they know I no longer want their homes any more & am keeping the houses for them. However the Govt bringing in the EPC to a C to 2028 for existing tenants is pushing me/us too far & I'm not prepared to spend 10k on external insulation on a house I don't want. Landlord has Mental Health feelings too & needs to retire at some point. Govt are making that many homeless whereby before Landlord could have managed.

by TheSwan

11:10 AM, 2nd March 2021, About 5 months ago

I totally agree that there are simply some houses that are not worth bringing up to a C rating as the time, energy and cost is just not worth it and it's not like we see the gain from this expense either. Generally, the older ex council houses with values under £150k are probably going to be finding themselves sold off. Don't benefit tenants get free green improvements though? I've got no qualifying Tennant's.

by Mick Roberts

11:32 AM, 2nd March 2021, About 5 months ago

Reply to the comment left by TheSwan at 02/03/2021 - 11:10
Benefit tenants used to get the Free stuff, I had 45 free Vaillant boilers fitted in 2013/14, but now I can't even understand the new Green deal paperwork as many can't & we now see the Govt getting the money back as it's hardly been used.
I think we have to spend something like 10k to get 5k free or something daft like that. When many Landlords may only make only 1k per year per house & u now got to work for 5+ years for Free. This Govt has no clue.

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