There is no specific requirement in the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 for a landlord to seek tenant consent to carry out works. However, depending on the terms of the tenancy agreement between a particular tenant and landlord, the landlord may need to obtain tenant consent before undertaking certain works (energy efficiency related or otherwise). Where this requirement already exists, the PRS Regulations recognise that consent should be obtained before work is undertaken. This is considered entirely compatible with the requirement to allow a tenant quiet enjoyment of the property.
The guidance issued goes on to consider this area in more detail.
“One issue which landlords should consider is whether or not they have the right to carry out improvement works under the terms of an existing tenancy. Landlord rights of entry to undertake work on a property typically only extends to the carrying out of repairs or maintenance, rather than making ‘improvements’. As a majority of the measures landlords can install to meet the minimum standard will be considered improvements, a landlord may not have an automatic right of entry to install the measure or measures, and tenant consent may be necessary.
“On the other hand, if the tenancy agreement specifically gives the landlord right of entry to undertake ‘improvement works’, tenant consent may not be necessary. In all cases the wording of individual tenancies will dictate what is and is not permissible without consent.”
Additionally, landlords are reminded that they are under an obligation to make reasonable efforts to obtain third party consents and should not behave in such as manner as would discourage third party consent being granted.
“The Regulations require the landlord to make ‘reasonable efforts’ to obtain third party consent. Reasonable efforts may include attempts on a number of separate occasions and using a number of different available means of communication to secure agreement from, for example, a tenant or superior landlord, with evidence to show this had been done (in the case of planning consent refusal, evidence of a single application and subsequent refusal is likely to be sufficient evidence).
“Broadly speaking, it is thought that that it will not be reasonable for the landlord to comply with a condition which may reduce the landlord’s ability to let the property or if it involves unreasonable costs.”
Non-domestic tenancies can be more complex and may include terms requiring the tenant to ensure the property remains lettable. In these circumstances a landlord may be able to require a sitting tenant to take reasonable steps to ensure that the property remains above the MEES. In any case, non-domestic landlords should review their terms for new tenancies to ensure that tenants do not carry out any actions that could result in the properties EPC rating getting worse. These could include requirements to seek the landlord's consent prior to making any changes or alterations and requirements to seek modelling reports to establish the effect of any change or alteration on the EPC rating.
Please Note: Refusal of consent from a tenant cannot be used as an exemption from meeting the MEES where the tenancy began after the regulations came into effect (1 April 2018). Landlords are expected to make any necessary improvements before any new tenant takes up occupancy where this is required.