Short-term lets - licensing scheme and planning control areas: consultation

4. Definition of a short-term let

4.1. For a short-term let to take place, a host offers short-term accommodation to one or more guests, i.e. it does not become the main residence of the guest(s). Most people have an intuitive sense of what constitutes a short-term let but we now need to define it precisely.

The 2019 consultation paper

4.2. The 2019 consultation paper proposed that the following conditions had to be met in order for an arrangement to be considered a short-term let:

a) The accommodation is made available for use for letting for a cumulative period of 28 days or more in any rolling period of 365 days. This might mean, for example, that it is advertised as being available to let.

b) At least one of the lets commencing in the same rolling period is not a private residential tenancy in terms of section 1 of the Private Housing (Tenancies) (Scotland) Act 2016.

4.3. The 2019 consultation paper excluded private residential tenancies^[6], which require that the tenant occupies the property (or part of it) as their only or principal home. This meant that guests would not have the same rights in law as tenants.

4.4. It was noted that the definition could encompass any use to which the guests put the property (i.e. including letting for holiday or for work purposes).

4.5. The following were listed as exclusions in the 2019 consultation paper:

a) licenced hotels and B&Bs and self-catering properties on their premises,

b) women’s refuges,

c) homeless hostels and other temporary accommodation for homeless people,

d) accommodation for asylum seekers,

e) child or adult care homes and other council premises,

f) student halls of residence (whether used by students or others),

g) hospitals, and

h) prisons.

2019 consultation report

4.6. The 2019 consultation report^[7] noted a range of possible types of accommodation. In developing a definition for short-term lets, we considered the full range of possibilities, which included:

a) Conventional, independent (no shared facilities or concierge) and static homes, such as houses, flats and cottages (typically principal homes, second homes and holiday cottages).

b) Less conventional static accommodation (which may be independent or rely on shared facilities, such as park homes, static caravans, chalets, huts and pods).

c) Quasi-hotel accommodation (also static) comprising multiple properties in a tailored building, such as aparthotels and serviced apartments. For our purposes, it may be helpful to distinguish between a conventional hotel which additionally offers self-catering, serviced apartments on the premises and a standalone set of serviced apartments. (From a guest perspective, the main difference is likely to be the ability to order prepared food and access other hotel-like facilities present in the former and absent in the latter.) There are also so-called “ghost hotels”, where a single dwelling is let out to multiple independent guests and the host is not present^[8].

d) Mobile accommodation, primarily boats, such as canal boats and yachts. Depending on the water in which the boat is moored or travelling, the relevant authority may be Scottish Canals or a port authority.

Proposed definition for the Licensing Order and Control Area Regulations

4.7. We are proposing to define a “short-term let” as a let where all of the following criteria are met:

a) residential - the let is made to one or more guests for them to reside at the accommodation;

b) accommodation – the accommodation is all or part of a house or flat or serviced apartment (but it is not on the premises of a hotel or other class 7 premises in the UCO);

c) temporary - the accommodation is not the guests’ only or principal home;

d) commercial - the let is for commercial consideration (i.e. for money or benefit in kind to the host, such as provision of a service or reciprocal use of a property); and

e) excludes immediate family – none of the guests are members of the same immediate family as the host or host’s household (i.e. father, mother, brother, sister, son or daughter).

4.8. With regard to condition (c), we considered stipulating that the let was made for period of less than 28 days. However, the condition that the accommodation is not the guests’ only or principal home dovetails better with regulation of the private rented sector under the 2016 Act, making short-term lets and private rented tenancies mutually exclusive. It also avoids a loophole whereby lets longer than 28 days (for example in respect of a worker on a 3 month contract to work away from their principal home) might not be regulated under either system.

4.9. The definition includes:

• Lets for work and leisure purposes.
• Lets where the accommodation provided is a bed in a bedroom shared with other guests or a sofa bed in a living room. (I.e. it does not need to be exclusive use of a whole room.)

4.10. But the definition excludes unconventional dwellings such as caravans, pods and mobile dwellings such as canal boats.

4.11. All short-term lets will require a licence. This is what Kevin Stewart MSP, Minister for Local Government, Housing and Planning, announced to the Scottish Parliament on 8 January 2020. This means that it does not matter for how many or few nights per year the accommodation is advertised for short-term let, or actually let, a licence is still required. There are no exceptions (but see paragraph 6.135 with regard to a power to grant exemptions).

4.12. We are proposing to take this approach because, first and foremost, it will help protect the safety of guests in all circumstances. Secondly, it is easy to understand and enforce. The fact that all hosts require a licence is easy to communicate to hosts, guests, platforms and neighbours. All platforms and holiday letting agents should require hosts to provide a licence number for each property; and guests should expect to see licence numbers when searching and booking accommodation. Finally, neighbours do not need to perform complex calculations adding up stays over a year to see whether a host requires a licence.

4.13. All secondary letting will fall within scope of control areas, where such areas have been established.