Short term lets - licensing scheme part 2: supplementary guidance for licensing authorities, letting agencies and platforms

6. Complaints and enforcement

(a) Handling complaints

6.1. Complaints about hosts and operators can be considered under powers in the 1982 Act.^[23] Anybody may make a complaint to a licensing authority about the way that hosts and operators are operating their short-term lets, although complaints are most likely to be received from neighbours and guests. Complaints from neighbours may be about an actual, or suspected, short-term let. Whether the complaint is from a guest or a neighbour, it may be justified or unjustified.

6.2. As a general principle, licensing authorities should seek to try to resolve a complaint through engagement with the host or operator in the first instance. If this is not successful, then the procedures under the 1982 Act should be used.

From guests

6.3. In the first instance guests should raise any concerns with their host or operator, letting agency or platform. If they remain unsatisfied or the issue is sufficiently grave they may contact the relevant licensing authority. Licensing authorities are expected to establish a clear process for handling contact from guests.

From neighbours

6.4. Neighbours might complain about the following, for example:

• the number of people staying at the premises;
• noise, disturbance or instances of antisocial behaviour;
• issues around maintenance, guests in common areas and accumulation of refuse (especially in flats or tenements); or
• suspected unlicensed short-term lets.

Complaints about suspected unlicensed operators should be directed to the relevant licensing authority and/ or Police Scotland, as enforcement will depend on the nature of the complaint.

Clear information

6.5. In order to assist guests, neighbours and others in making a complaint, the Scottish Government encourages licensing authorities to publish details on how complaints can be made on their webpage, including: grounds that would not be considered valid for a complaint, relevant contact details, and estimated timescales for acknowledging and responding to complaints.

Triage and redirection

6.6. Licensing authorities may wish to provide a single portal to cover both licensing and planning matters for short-term lets, which would direct the complaint to the relevant local authority department, rather than expecting neighbours to understand whether their concern is a licensing or planning or other matter.

6.7. Licensing authorities may need to direct some complaints to planning authorities, letting agencies, platforms, VisitScotland, Police Scotland or other bodies for further investigation.

Case management

6.8. Keeping records of complaints and their outcomes will be important evidence for licensing authorities to maintain, in order to have an accurate picture of the compliance (or lack thereof) of hosts or operators.

6.9. Licensing authorities may wish to note that VisitScotland operates a fully traceable complaints procedure for businesses in their quality assurance scheme. Complaints, depending on their nature, are recorded and either dealt with immediately (a business is asked to respond to any points of concern raised) and/or made visible to their Quality & Tourism Advisor team for addressing at the time of their next grading visit. In all cases, a reassessment of accommodation standards is made at subsequent live visits (usually on a biennial basis) and the appropriate award is allocated.

Speed of turnaround

6.10. The Scottish Government encourages complaints to be acknowledged within five working days and complainants to be appropriately kept up to date with the progress of their complaint; sometimes this may simply be advising them of the outcome.

Assessing complaints

6.11. Some complaints will require enforcement action from the licensing authority. Options for enforcement action are set out in paragraphs 7.46 and following below.

6.12. Some complaints may not require enforcement action from the licensing authority, for example:

• where the licensing authority determines that the complaint is frivolous or vexatious;
• the complaint relates to a matter which has already been investigated and the complaint was found to be unjustified;
• action has already been taken or is in progress; or
• the complaint relates to a matter which is outside the scope of the licensing scheme, for example around the quality of the stay.

(b) Taking a risk-based approach to ensuring compliance

6.13. The Scottish Government encourages licensing authorities to take a risk-based approach to ensuring compliance, this includes allowing self-certification where appropriate and only using inspections where there are grounds to do so.

6.14. Some of the factors they may wish to consider when deciding whether to carry out an inspection of a particular premises might be:

• other accreditation obtained by the host or operator;
• feedback from Police Scotland and the Scottish Fire and Rescue Service, who may have their own views, suggestions or requirements around risk assessment and prioritisation;
• peculiarities of the operation (etc. unconventional accommodation);
• pattern of complaints associated with the host, operator or premises;
• intelligence from other inspections (which may indicate a higher incidence of issue or non-compliance with hosts or operators or premises of that type or in that area); and
• reputational evidence (where available) from guest reviews and internet profile.

6.15. Licensing authorities will determine the appropriate balance of:

• self-declaration from hosts and operators;
• checking relevant documentation;
• allowing for third-party accreditation; and
• visits to premises by licensing authority and other local authority officials.

6.16. There is no specific liability on licensing authorities in terms of a "failure to inspect"; the licensing authority's duties to consider an application and grant a licence, and thereafter to ensure adherence with a licence's conditions, remain in line with the 1982 Act provisions and the current licensing framework.

(c) Third party accreditation

6.17. It is entirely for licensing authorities to determine what they will accept from hosts and operators to demonstrate compliance with either mandatory or additional conditions. Licensing authorities may wish to consider accepting third party evidence, accreditation or certification from bodies such as Quality in Tourism or Visit Scotland in lieu of visiting premises in some circumstances. This may provide efficiencies for licensing authorities, whilst still ensuring that minimum mandatory standards are met. This might be particularly beneficial in the case of remote, rural and island premises.

(d) Identifying unlicensed short-term lets

6.18. Licensing authorities, letting agencies and platforms all have a role to play in identifying and eliminating unlicensed short-term lets.

6.19. While licensing authorities are obliged to maintain a public register of licensed short-term lets and update this on a quarterly basis, it is desirable for the register to be updated as often as possible to provide an accurate record that can be checked to find out whether a licence for a short term let premises: has been granted or refused, is being determined, has been revoked or has lapsed.

Proactive action by the licensing authority

6.20. Licensing authorities should consider how they will monitor whether there are hosts or operators in their area that are trading without a valid short-term lets licence.

Proactive action by letting agencies and platforms

6.21. Hosts and operators are allowed to advertise their properties without a licence. However, from 1 October 2022 new hosts and operators cannot accept bookings or receive guests until they have obtained a licence. After this date letting agencies and platforms should not allow a booking to be made by a new host/ operator until a licence number can be provided.

6.22. Existing hosts that have been trading on or before 30 September 2022 may continue to accept bookings if they have applied for a licence before 1 October 2023. Licensing authorities are expected to issue a provisional licence number on receipt of a licensing application from existing hosts to facilitate this. By 1 January 2025, existing hosts should not be trading unless they have been granted a full licence. Where it appears that a host or operator is attempting to operate without a licence when one is required, or where the letting agency or platform has other concerns about breaches of licence conditions (e.g. bookings being taken for numbers of guests that exceed the maximum occupancy), they are expected to report these to the relevant licensing authority.

6.23. Hosts and operators:

• must ensure that any advert or listing placed on or after they are granted a licence includes their licence number;
• are advised to make clear in their terms and conditions that the booking is conditional on the guests' compliance with the licensing scheme.

6.24. Letting agencies and platforms should take steps to help hosts and operators comply with this.

6.25. The Scottish Government has specified a consistent licence number format for the whole of Scotland (see Annex A).

(e) Options for enforcement action

6.26. The options for enforcement action for licensing authorities provided through the Licensing Order and 1982 Act are:

• additional licence conditions on application (or through variation) – see chapter 5;
• enforcement notices – see paragraphs 7.47 and following below;
• variation, suspension or revocation of the licence – see paragraphs 7.51 and following below; or
• pursuance of prosecution in respect of offences under the 1982 Act – see paragraphs 7.56 and following below.

(f) Enforcement notices

6.27. Licensing authorities have the power^[24] to serve enforcement notices. Where complaints, visits to premises, or other information, suggest that any licence condition has been breached, licensing authorities can require a licence holder to take action to put it right. This will usually be done by serving an enforcement notice ("non-compliance" or "improvement" notice). Such notices must set out the matters constituting a breach or a likely breach, the action required to rectify or prevent the breach and the date by which the action must be taken.

6.28. Enforcement notices can also be served if a licence condition is felt likely to be breached, for example, a host or operator is advertising property with a maximum capacity of ten guests in breach of a licence condition specifying no more than eight. This would be evidenced in a listing or advertisement.

6.29. The format of an enforcement note may be similar to an additional condition (see chapter 6). An enforcement notice must specify—

• the matters constituting the breach or likely breach,^[25]
• the action to be taken by the licence holder, which the licensing authority considers necessary for the purposes of rectifying or, as the case may be, preventing the breach, and
• the date by which the action must be taken.

6.30. If satisfactory action is not taken by the required date(s) to address the issues set out in a notice, licensing authorities have powers to vary, suspend or revoke a licence.

(g) Variation, suspension and revocation

6.31. A licensing authority may vary, suspend or revoke a licence in certain circumstances, see Guidance Part 1. Licensing authorities may do this without serving an enforcement notice if the seriousness of the breach justifies urgent action.

6.32. The procedures to follow for variation, suspension and revocation are set out in schedule 1 to the 1982 Act.

6.33. Hosts and operators can appeal against being served with a notice of variation, suspension or revocation. Hosts and operators can take bookings and provide accommodation whilst they appeal a revocation or suspension and they have 28 days in which to lodge an appeal.

Variation

6.34. A licensing authority may vary the terms of a licence on any grounds they think fit.^[26] They can do this at any time. They can do this following an application made to them by the licence holder or of their own initiative.

Suspension or revocation

6.35. Licensing authorities may order the suspension or revocation of a licence^[27] if in their opinion—

• the licence holder is no longer a fit and proper person to hold the licence;
• the licence holder is managing the property on behalf of someone who would have been refused the grant or renewal of the licence;
• the short-term let is causing or is likely to cause undue public nuisance or a threat to public order or public safety; or
• a condition of the licence has been contravened.

6.36. Where the licensing authority revokes a licence, its holder shall be disqualified from holding or obtaining a licence in the area of the licensing authority which revoked the licence for a period of one year from the date of revocation, unless the revocation has been reversed on appeal.

(h) Offences under the 1982 Act

6.37. Section 7 of the 1982 Act^[28] sets out four offences, as set out below. These currently attract fines on the standard scale:^[29]

Level on the scale	Maximum fine
1	£ 200
2	£ 500
3	£1,000
4	£2,500
5	£5,000

Operating without a licence

6.38. It is an offence, without reasonable excuse, to carry on an activity for which a licence is required without having such a licence. Depending on the activity, different punishments apply. The default is a fine not exceeding level 4 on the standard scale.

6.39. The Scottish Government intends to increase the maximum fine to £50,000 through provision in a suitable Bill in this session (2021-26) of the Scottish Parliament.

Failing to comply with a licence condition

6.40. It is an offence to fail to comply with a licence condition, though it is a defence to have used all due diligence to prevent the offence. The default is a fine not exceeding level 3 on the standard scale.

6.41. The Scottish Government intends to increase the maximum fine to £10,000 through provision in a suitable Bill in this session (2021-26) of the Scottish Parliament.

6.42. The maximum occupancy condition limits the number of guests in the premises. Breaching this condition might lead to significantly more revenue. The fine for failing to comply with the licence condition must outweigh the profit made from such a breach.

6.43. Note that some mandatory conditions are also enforceable through other legislation. Hosts and operators must include an EPC rating in their listing where they are required to have a valid EPC certificate for the premises under building standards legislation. A host or operator who fails to hold a valid EPC certificate, where required to have one under building standards legislation, can be fined as follows as a minimum:^[30]

• £500 for failing to hold a valid EPC certificate; and
• £500 for failing to display a rating on any property listing.

Failing to notify a change etc.

6.44. It is an offence for a licence holder, without reasonable excuse, to:

a) fail to notify the licensing authority of a material change of circumstances (level 3 on the standard scale),

b) make or cause or permit to be made any material change in the premises (level 3 on the standard scale),

c) fail to deliver the licence to the licensing authority (level 1 on the standard scale).

Making a false statement

6.45. It is an offence to make a false statement in an application (level 4 on the standard scale).

6.46. The Scottish Government intends to increase the maximum fine to £10,000 through provision in a suitable Bill in this session (2021-26) of the Scottish Parliament.

6.47. Licensing authorities should be aware that some hosts or operators may make a false declaration about where they live, in order to apply for a home sharing or home letting licence, rather than a secondary letting licence. The host or operator may be attempting to obtain a licence with a lower fee and to avoid planning controls.