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

5. Definition of a short-term let

5.1. There were 891 responses to the question about any issues with the proposed definition as set out in chapter 4 of the consultation paper, and how to resolve them.

Definition proposed for consultation

5.2. We proposed to define a “short-term let” as a let where all of the following criteria were 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).

5.3. We proposed to exclude unconventional dwellings such as caravans, pods and mobile dwellings such as canal boats.

Issues raised in consultation

5.4. With regard to the exclusion of unconventional accommodation:

Consultation proposal:

The consultation paper proposed to exclude unconventional dwellings such as caravans, pods and mobile dwellings such as canal boats. This was primarily because they did not remove homes from the existing housing stock and because of concerns around potential complexities in how the mandatory safety conditions would apply to them.

Issue:

A number of consultees in workshops and in written responses questioned the exclusion of unconventional dwellings, principally on health and safety grounds when this is so central to the approach.

Scottish Government response:

Amendment.

1. On reflection, we agree that static unconventional dwellings should be included within the scope of the Licensing Order for the following reasons:

a) The primary motivation for the regulation of short-term lets is to ensure the safety of visitors and local residents and some respondents pointed out that it is inconsistent to regulate only some forms of accommodation.

b) If unconventional dwellings fall outside the scope of regulation, then it is likely that this type of accommodation will grow (increasing the safety risk in proportion) but, additionally, bad hosts and poor practice will centre on this type of accommodation. For example, individuals who are removed from the landlord register or found to be not fit and proper to operate short-term lets, may move into providing this type of accommodation.

c) Antisocial behaviour might simply move from party mansions to fields of glamping pods etc. We have heard about noise disturbance from party mansions in rural areas. If a large groups of pods were able to operate without a licence, this may generate noise and nuisance issues for neighbours, particularly in rural areas.

d) Excluding unconventional dwellings would make the scheme harder to enforce. This is because there would legitimately be licensed and unlicensed accommodation advertised on the platforms and it would be hard for platforms and authorities to distinguish between legitimate unlicensed accommodation (unconventional) and illegitimate unlicensed accommodation (conventional).

e) The estimates of short-term let activity in Scotland include unconventional dwellings and including them potentially reduces the fee per licence in some (rural) areas where conventional accommodation is relatively diffuse.

2. Unconventional accommodation would not be within scope of the Control Area Regulations.

3. We are not extending the definition to mobile dwellings. This is because:

a) Nobody has raised any issues or concerns in respect of mobile dwellings in either the 2019 consultation, 2020 consultation.

b) Mobile accommodation raises questions about the definition of neighbours (if any) and the relevant licensing authority; canals and ports are the responsibility of Scottish Canals and the relevant port authority, respectively.

c) The relatively few, if any, mobile accommodation offered for short-term lets are easy to distinguish as not requiring a licence under our regulations, e.g. a boat or motorised transport.

5.5. In terms of the definition of the accommodation (paragraph 5.2(b)), with regard to the treatment of student accommodation:

Consultation proposal:

The consultation proposal^[11] and policy intention was to exclude all purpose-built student accommodation (halls of residence etc.) from the definition of short-term let.

Issue:

Whether or not this should be included came up in consultation workshops. Some people highlighted that student halls of residence can cause noise and nuisance for neighbours. They suggested that student halls of residence should be within the definition of short-term lets when they are rented out during student vacation periods.

Resolution:

No change.

We consider that the use of purpose-built student accommodation during vacations is unlikely to increase disturbance to neighbours (c.f. use by students) and does not displace people from the residential housing market. Purpose-built student accommodation is subject to HMO licensing and therefore is already regulated for safety.

5.6. In terms of the definition of the accommodation (paragraph 5.2(b)), with regard to the treatment of aparthotels:

Consultation proposal:

The consultation paper proposed that only accommodation which is all or part of a house or flat or serviced apartment (but is not on the premises of a hotel or other class 7 premises in the UCO) was within the definition of short-term let. The policy intention was to capture serviced apartments where these are currently unregulated, such as a single apartment in a block of otherwise residential flats or tenements.

Issue:

Sonder, and others, expressed concern that our definition might also include aparthotels. Aparthotels are whole-block residential buildings, entirely owned, managed or operated by a single company. It was not the policy intention to include hotel-like accommodation which is separately regulated.

Resolution:

Clarification.

In terms of use class, both flats and aparthotels are sui generis. Planning permission is needed to change from one use class to sui generis and between sui generis uses. This means that, to create an aparthotel out of a residential block, whether converting several flats (sui generis) or a large townhouse (class 9), would require planning permission. Therefore, they should not (and do not need to) fall within scope of the Control Area Regulations.

Aparthotels comprising whole buildings, which are subject to similar regulations and checks by local authorities as hotels, will not fall within scope of the Licensing Order, and we will make specific provision in the Order to exclude them.

5.7. In terms of the definition of temporary (paragraph 5.2(c)) and the relationship to the PRS and HMOs:

Consultation proposal:

The consultation paper proposed that any given let could not be both a PRS tenancy and short-term let at the same time, as the former relates to the tenant’s “only or principal home” and the latter excludes such accommodation.

Furthermore, the consultation paper proposed that any given let could not be both an HMO and short-term let at the same time.

Issue:

There seemed to be some confusion about this as HMO legislation refers to “only or main residence” which is not the same wording as “only or principal home”. However, our view is that they have the same meaning.

It was noted that, in some instances, serviced accommodation was offered to workers staying for six months and the landlord offered a PRS tenancy. They wanted to know whether they could continue to do this or whether this would now be a short-term let.

Resolution:

No change.

We are not changing the boundaries of what falls within the definition of a PRS tenancy or an HMO but working only in the domain not covered by these regimes.

Therefore, if tenants could properly be offered a PRS tenancy before the Licensing Order comes into force, then they can continue to be offered one. If not, then the workers should be afforded new protection, in terms of safety at least, by the short-term let legislation. If both parties want to go further than the legislation, for example, in agreeing a period of let and notice conditions in some form of contract they can, of course, do this.

5.8. In terms of the definition of commercial (paragraph 5.2(d)) and accommodation provided as part of a person’s work (including tied accommodation^[12]):

Consultation proposal:

The consultation paper did not make any distinct provision for tied accommodation (where accommodation owned by the employer is provided by the employer to an employee to facilitate the carrying out of the work).

Issue:

Consultees raised the issue of tied accommodation; this is not always the worker's only or principal home. Therefore, some tied accommodation might fall within the definition of short-term lets. This would include, for example, hotel workers and boarding school teachers living in houses owned by the hotel or school, oil rig workers, agricultural labourers accommodated in accommodation owned by the farm and carers accommodated in a granny annex.

Resolution:

Amendment.

We consider that tied accommodation, where the accommodation is owned by the person for whom the work is done, should be excluded from the definition. However, where an employer secures accommodation from a separate host for the workers, such as a bank hiring a serviced apartment for a visiting finance professional, this arrangement would not fall within the exemption.

5.9. In terms of the exclusion of immediate family (paragraph 5.2(e)) and the definition of family:

Consultation proposal:

The consultation paper proposed to exclude lets to immediate family from the definition of short-term lets.

Issue:

ASSC highlighted that the exclusion does not refer to civil partners nor does it refer to step siblings such as are found in blended families. It also does not refer to partners or cohabiting couples. They suggested expanding the definition of family using the Private Housing (Tenancies)(Scotland) Act 2016 Eviction ground 5 (Family member intends to live in property) as a model.

Resolution:

Amendment.

We agree that the consultation paper proposal does not reflect the full diversity of family structures in Scotland today and needs to be amended. We will broaden the family exemption along the lines suggested to cover a wider range of family relationships, including civil partnerships, grandparents and grandchildren and step-siblings, along the lines of the 2016 Act definition referred to above.

5.10. In terms of the exclusion of immediate family (paragraph 5.2(e)) and the educational stays with families:

Consultation proposal:

The consultation paper proposed to exclude lets to immediate family from the definition of short-term lets. However, it did not make any proposal with regard to stays with families where a student was immersed with a family.

Issue:

One individual highlighted young students coming to Scotland and staying with a family to learn English. This is typically for a few weeks whilst attending English school and the host family supplies bed and board for modest remuneration.

Resolution:

Amendment.

We will exclude home sharing with the host(s)) for the principal purpose of advancement of the guest’s education. This will apply in circumstances where it is arranged by a school, college, further or higher educational institution. It will exempt students living with a family for the express purpose of improving their English, for example. The reason for excluding these arrangements is that the student is living more like a family member than a guest.

5.11. Comparison of home sharing with arrangements for lodgers:

Consultation proposal:

The consultation paper proposals for regulating home sharing go further than provision for lodgers.

Issue:

Airbnb raised the comparison between a householder wanting to take on a long-term lodger (which would be the lodger’s “only or principal home”) and home sharing. A person taking on a lodger does not have to register as a landlord under PRS legislation. They are exempted from PRS regulations because the landlord is living in the same accommodation. There is normally a “lodger’s agreement” between the landlord and the lodger. However, a home sharing short-term let host is required to have a licence to rent one or more rooms to guests.

Resolution:

No change.

We consider that the landlord-lodger arrangement is more akin to a flat share, whereas home sharing is more akin to a bed-and-breakfast business. With a landlord-lodger or flat share, the incomer is likely to meet the landlord and see the property before deciding to move in and is likely to have more leverage once resident; in home sharing, the guest is likely to have to make a decision remotely.