From 1 April 2016, landlords of domestic properties have been unable to unreasonably refuse consent to a tenant's request to carry out energy efficiency improvements. What does mean for landlords?
To qualify as an "energy efficiency improvement", the works must either:
Most importantly for landlords, even if works satisfy one of these criteria, they will only qualify as "energy efficiency improvements" if they can be financed at no cost to the landlord. The Regulations state that works will only be a "relevant energy efficiency improvement" where the cost of the improvement:
The key point for a landlord is that it cannot be forced to consent to energy efficiency improvements that will involve it incurring expenditure.
The Regulations enable tenants under both short term arrangements (most commonly Assured Shorthold Tenancies) and long leases to make a request to the landlord to carry out energy efficiency improvements. Sub-tenants can also make requests. In such cases, the superior landlord's consent, in addition to the immediate landlord's consent, must be obtained.
There are certain circumstances in which a tenant cannot make a request. These include:
A landlord does not necessarily have to consent to the works but, despite this, may have to jump through a number of hoops to show that it has considered the request.
Firstly, the landlord will need to consider whether the tenant's request is valid. Is the tenant entitled to make a request? Does the request satisfy the requirements of Regulation 8? For example, the request must be accompanied by evidence of funding.
If the tenant is entitled to make a request, and that request fits the requirements of Regulation 8, the landlord must not unreasonably refuse consent to the making of the improvements. The Regulations set out are various circumstances in which consent will not be unreasonably refused. These include:
A superior landlord is also under a duty not to unreasonably refuse consent to an application.
However, even if the landlord is entitled to refuse consent, it will still have to provide a full response to the tenant. This must set out on what grounds it is refusing, within one month of the date of service of the tenant's request.
If the landlord fails to do so, the tenant can apply to the First Tier Tribunal on the grounds that the landlord has failed to comply with the Regulations. If the First Tier Tribunal finds that the landlord has failed to comply with the Regulations, it can make an Order granting consent to the making of the improvements specified in the request.
This seems rather heavy handed, and it would be surprising if the First Tier Tribunal would make such an Order in circumstances where the landlord was just a little tardy in responding to the tenant's request, but nevertheless had a valid reason for refusing to grant consent.
Nevertheless, landlords should ensure that they do not ignore tenants' requests for consent to carry out energy efficiency improvements.
When the Regulations were passed, the intention was that tenants would be able to obtain finance via the Green Deal or funding provided by other government schemes. This would have left a fairly small number of situations where tenants had to meet the costs themselves. But, as Green Deal funding was withdrawn in 2015, it is likely that the instances of tenants making requests to landlords to carry out works, which the tenants are going to have to self-finance, will be limited.
Contributor: Alexandra Holsgrove Jones
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.