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Future-proofing flats: overcoming legal barriers to energy improvements in private flats

The legal barriers preventing improvements to England’s coldest homes

Future Climate, Oxford University and Westminster City Council, with support of TLT, have launched the report “Future-proofing Flats: overcoming legal barriers to energy improvements in private blocks of flats”.

13% of English homes are private flats. This report shows how – in terms of double glazing, insulation and heating systems – the 13% of English homes that are private flats fall behind in energy efficiency.

Private flats in converted houses are England’s forgotten homes. They are the coldest and least energy efficient of any type of home, with the highest levels of damp. One in four (25%) flats in converted houses has a serious health and safety hazard, very often linked to cold and damp.

There is one big reason for the lack of progress in improving energy efficiency in converted houses and other private blocks of flats: the near impossibility of landlords, leaseholders, short-term tenants, mortgagees, and management companies – practically and lawfully – reaching agreement for improvement works to proceed. It is hard to get consensus with so many different interests involved and under the leases the needed improvements may not be allowed.
The problem is made more complicated by the fact that every flat lease can be different, and there’s no easy way of knowing who has the right and responsibility to upgrade different parts of the building, for example window frames. Few, if any, leases provide for energy efficiency upgrades.
The energy efficiency problems in flats – linked to the complex legal barriers – have been largely ignored. These barriers and the solution to them are the focus of the groundbreaking Future-proofing Flats report.

This new report proposes solutions to the legal barriers to energy improvements in private flats, including:- greater use of standardised leases; a change in regulations to allow leaseholders to vary lease agreements to allow energy efficiency improvements to proceed.
Commenting on the report, Prof Susan Bright, Professor of Law at New College Oxford and one of the report’s authors said, “We simply don’t have the legal mechanisms for private flats to benefit from retrofitted energy efficiency improvements. They may be stuck with poor insulation, single glazed windows and inefficient or expensive heating. As a result, from the day they are built, private blocks of flats start to fall behind the rest of the housing stock in energy terms. This is a problem we’re going to have to address if we’re going to hit our 2050 target of an 80% reduction in carbon emissions, much of which has to come from changes to the way we use energy in homes”.

The condition of flats

Based on analysis of the official English Housing Survey 2010/11 data, Future Climate research shows that older private flats comprise 8% of housing stock, but one in five (19.4%) of the properties without double glazing; cavity walls are uninsulated in 71% of pre-1980 private sector flats, versus 42% of houses of the same age.

Flats are not significantly more likely to have old heating systems, but are much more likely to be heated by electric heating – generally a more expensive heating fuel than gas. 24% of pre-1980 flats are electrically heated, compared to 4% of pre-1980 houses.

Older flats are much less energy efficient than average, and flats formed out of converted houses are the least energy efficient type of housing in the UK. Converted flats are typically older buildings and often have not been well cared for. They show far higher damp, disrepair and “non-decency” than any other type of home1.

The legal issues

The Future-proofing Flats report is based on research and an expert meeting staged in March this year. The report presents a briefing note to explain the legal issues relating to energy upgrades in flats. The report then presents some ideas for solutions to the barriers. These include steps such as:

  •  Making sure that freeholders and leaseholders are aware of the potential for energy saving upgrades to insulation, windows and heating systems or solar panels – what are the costs and benefits of different improvements?
  •  Ensuring freeholders are following best practice in making energy saving improvements where leases allow it.
  •  Using lease renewals and renegotiations as opportunities to change leases to allow energy efficiency upgrades to go ahead – this will include educating solicitors on the issues.
  •  When new blocks of flats are built, using standardised leases that allow for energy efficiency upgrades in the future.

The report also presents some ideas for changes to government legislation and regulations that could make action on energy efficiency in private blocks of flats easier, such as:

  •  Requiring freeholders who own the block to undertake an energy efficiency survey, and to proceed with works that are reasonable and cost-effective.
  •  Legislation that allows the “retrospective insertion” of clauses in leases to allow energy efficiency to proceed.
  •  Amend secondary legislation to allow leaseholders to apply for lease variations to enable reasonable energy efficiency measures to be carried out.

The report highlights that these are initial ideas and that further research in this area is needed. Data on leasehold blocks is very limited, as is information about the specific legal arrangements in different properties. Future Climate, TLT and Professor Bright will be leading a further meeting later in 2015 to investigate further the solutions in this area.

Download a copy of the report below.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com


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