If an Energy Performance Certificate has not been produced, is it acceptable to put a clause in the contract saying that the EPC will be produced before completion?

A note from Lovells suggests that this is not a wise procedure, since it is an admission that the statutory procedures have not been complied with. Indeed, by the time solicitors have been instructed, sellers (and Ls) will already have been in breach and exposed to the risk of an enforcement action. If a viewing has taken place, or particulars have been issued, then the obligation to supply an EPC will have arisen when the first of these occurred. Certainly, by the time heads of terms have been agreed the obligation will definitely have arisen and an EPC should already have been made available. If a seller (or L) has not done this, there is a genuine risk of enforcement action.

So far, it looks as though Trading Standards have not focused on this as an area of activity. But, it is possible that Trading Standards will begin to enforce these obligations. They are likely to take the view that agreeing not to produce the EPC until the last minute defeats the main purpose of having an EPC (ie so that buyers (and Ts) can consider energy efficiency when deciding which premises to make an offer for). If enforcement action is contemplated, then the client is hardly likely to thank a conveyancer who advised in favour of inserting a clause in the contract that amounted to an admission that the EPC requirements had been breached. So, if such a clause is being suggested then do give an unequivocal warning to the seller-client that this could be self-incriminating. Source: Lovells.