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

5. Setting additional licence conditions

Whether to set additional conditions

5.1. In addition to the mandatory licence conditions which will apply to all short-term lets across Scotland, licensing authorities may wish to introduce additional conditions^[15].

5.2. Additional conditions can help licensing authorities to respond to local challenges and concerns and issues specific to certain models of short-term letting (for example, secondary letting in tenement flats).

5.3. Licensing authorities need not set any additional conditions. Some licensing authorities, for example not experiencing any significant issues from short-term lets, may wish to only require the mandatory aspects of the licensing scheme.

5.4. Licensing authorities should consider carefully the relevance and appropriateness of any proposed additional licence conditions, before attaching them to a licence. They should also consider the impact that such additional conditions will have on costs for hosts and operators.

5.5. An additional condition must not be used to tackle a breach of an existing condition (whether it is a mandatory or additional condition); enforcement notices should be used for this purpose – see chapter 7.

5.6. Licensing authorities must be mindful of the fact that failure to comply with a licence condition is a criminal offence, and can also result in the licence being revoked. They should therefore consider whether it would be reasonable and proportionate to impose a particular additional licence condition or whether there are other more appropriate means of achieving the same result.

5.7. A central policy objective of short-term let licensing is to ensure that the accommodation provided is safe. Where the licensing authority considers that there are significant risks to safety and security, it may be more appropriate to:

• refuse an application;
• delay granting an application;
• issue an enforcement notice;
• vary or suspend a licence; or
• revoke a licence.

5.8. Some of these measures are temporary and allow remedial action to be taken and the licensing authority to be content that the risk has been reduced or removed appropriately.

The issues that might be addressed

5.9. The mandatory conditions should ensure the basic safety of guests and neighbours. Additional conditions are most likely to be used to address other issues for neighbours.

5.10. Some of the issues raised by residents and communities in relation to short-term lets, through the public consultation and research and elsewhere, include:

• overcrowding of the property;
• noise and nuisance, including drunkenness, smoking and drug-taking;
• litter or other mess in communal areas;
• failure to maintain the property in a good state of repair;
• failure to maintain, or contribute to the cost of, communal area repairs and increased wear and tear;
• damage to property (e.g. from key boxes affixed to walls); and
• unlawful activity (e.g. using the property as a brothel).

5.11. The Scottish Government’s independent research on the impact of short-term lets on communities (2019) demonstrated that 51% of short-term lets in Scotland were concentrated in 24 council ward areas (out of a total of 354 council wards in Scotland). High concentrations of short-term lets can amplify the issues but also cause systemic issues such as availability and affordability of housing.

5.12. Additional conditions allow licensing authorities to tackle many of these issues whilst still allowing the premises to be used for short-term lets.

5.13. Note that overprovision policies, see chapter 3 and control areas can be used to address others, such as availability and affordability of housing.

Scope of additional conditions

5.14. Licensing authorities have broad powers around which premises have additional conditions attached to them. Different additional conditions may be determined:

• in respect of different licences, or different types of licence; or
• otherwise for different purposes, circumstances or cases.

5.15. Additional conditions have no effect so far as they are inconsistent with any mandatory conditions. This means that licensing authorities cannot use additional conditions to contradict, modify or dilute mandatory conditions.

5.16. This chapter explains how to use these powers. The Scottish Government would like to avoid arbitrary inconsistency in the application of additional conditions, especially where they relate to guest behaviour as it is easier for industry bodies, guests and hosts operating in more than one licensing authority area if, for example, additional conditions around noise, are similar across Scotland.

5.17. The rest of this chapter sets out:

• how to publicise additional conditions;
• flexibilities in applying the maximum occupancy condition;
• how to draft an additional condition;
• prohibited condition: limits on nights; and
• template additional conditions.

How to publicise additional conditions

5.18. Licensing authorities must publish their additional conditions, and failure to do so means the conditions have no effect. They can do this in such manner as they think appropriate. This will depend how widely a particular additional condition applies and who needs to be aware of the condition. Neighbours and residents must be able to refer to licence conditions.

5.19. Licensing authorities should:

• include relevant additional conditions on the licence documentation provided to the host or operator;
• include additional conditions which will be attached automatically as a matter of policy for that circumstance or case in the notification to neighbours; and
• publish their additional conditions on their website, together with the criteria which determine to which licences they will be attached.

Flexibilities in applying the maximum occupancy condition

5.20. It is a mandatory condition that hosts and operators ensure that they do not exceed the maximum number of guests for their premises. This includes making the maximum occupancy clear on adverts and listings and in booking terms and conditions. Hosts and operators will state in their application how many guests they would like to accommodate.

5.21. Licensing authorities should consider the facts and circumstances of each application and determine the maximum number of guests for the property. Licensing authorities should consider:

a) the number requested on the application form;

b) the maximum number that can be accommodated safely; and

c) the maximum number that can be accommodated within tolerable noise and nuisance standards for neighbours.

5.22. The licence application, if granted, should include the lowest of these numbers as the maximum occupancy condition on the licence.

5.23. Licensing authorities should consider publishing their criteria for determining maximum occupancy so that hosts and operators can work this out for their property; ideally the number requested (a) is already the lower of (b) or (c) as the host or operator has understood these requirements.

5.24. Depending on the circumstances of the licensing application, licensing authorities may want to ask to see floor plans or visit premises to ensure that the licensing authority will want to consider the number of beds, bedrooms and size of the property are appropriate for the number of guests and that there is an adequate means of escape in case of fire.

5.25. Hosts and operators must be clear on any advert or listing, and in their booking terms and conditions, on the maximum number of guests that they can accommodate. In some circumstances, licensing authorities may wish to conduct random checks to ensure that hosts and operators are doing this.

5.26. Clearly, licensing authorities have no discretion over numbers (a) and (b), since one is provided by the host operator and the other determined from the application of fire (and any other) safety considerations.

5.27. However, licensing authorities can exercise judgement over (c) and set a lower number specific to the circumstances of the application. The number (c) might vary between similar premises, simply because of the location of the premises, for example.

Children

5.28. Licensing authorities can choose to specify on a licence that guests may bring a certain number of small children and these would not count towards the occupancy of the premises. Children above the age limit and any additional children of any age would count towards the occupancy. Clearly, this may be relevant in setting the overall maximum occupancy compliant with safety considerations.

Example

“Premises X has a maximum occupancy of four guests and up to two additional children under five years of age.”

A family with four children, comprising two adults, a 16 year old, 10 year old, a four year old and a two year old would be permitted in the same stay.

Six adults would not be permitted.

Four adults and two older children would not be permitted.

Alternatively, the same premises could have this condition:

“Premises X has a maximum occupancy of five guests.”

5.29. Where licensing authorities choose to offer a differentiated approach for young children, they should make this clear on their website and allow hosts and operators to request a particular combination on the application form. In the example above, one of the formulations may be preferable to the host operator, given the usual clientele for the property.

How to draft an additional condition

Preliminary

5.30. Licensing authorities should first consider whether an additional condition is the best way to achieve the desired outcome. The licensing authority should be satisfied that:

• the matter is not already covered by the requirements of the 1982 Act, Licensing Order or mandatory conditions;
• the matter is not already sufficiently covered by other legislation (i.e. already unlawful and enforceable);
• the matter is sufficiently serious to merit an additional condition, rather than a verbal warning, letter or memo;
• the matter is not a breach of an existing condition in which case an enforcement notice should be used – see chapter 7; and
• the proposed additional condition does not contradict the requirements of the 1982 Act, Licensing Order or mandatory conditions.

5.31. Licensing authorities should make sure that the additional condition does not have unintended consequences that are potentially as severe or worse than the issue to be addressed. For example, measures to limit noise indoors that lead to the guests making noise outdoors instead.

5.32. Licensing authorities should consider developing and maintaining a style bank or library of conditions to save work in and ensure consistency and fairness in the treatment of licence holders. Licensing authorities may want to publish their style bank and/or share it with other licensing authorities. (But note the requirement to publicise additional conditions in use at paragraph 5.18 above.)

Making it SMART

5.33. An additional condition should be:

(i) Specific (unambiguous);

(ii) Measurable (enforceable);

(iii) Action-oriented (place duty on the licence holder);

(iv) Realistic; and

(v) Time-bound (where there is an action to be completed, rather than an on-going action).

(i) Specific (unambiguous)

5.34. The licence holder must be left in no doubt what is expected of them, not least to give them the best chance of complying. Remember, breaching conditions carries a criminal penalty.

5.35. The additional condition should be sufficiently clear that the licence holder and, for example, licensing officials and other officials, neighbours and, where relevant, a sheriff, should know exactly what is meant by the condition.

5.36. Licensing authorities should avoid referencing verbal agreements or other arrangements as the condition is a standalone document.

Bad example – avoid:

“as agreed with”

“as discussed with”

“subject to the email of”

(ii) Measurable (enforceable)

5.37. The licence holder must be able to know when they have complied, or are complying with, the additional condition (and when they are not).

5.38. An additional condition may require a specific action to be completed and maintained (e.g. a physical change to premises) or it may relate to an ongoing state of affairs (e.g. guest behaviour).

Bad example – avoid:

The licence holder must ensure that confirmation is supplied to the licensing authority by x date.

5.39. This example looks for confirmation that an action has been completed. However, the way it is worded means that the condition is met by anyone telephoning the licensing authority with confirmation. Whether or not this had happened, could then form the subject of a dispute between the licence holder and the licensing authority which would be hard to resolve.

5.40. It is helpful to imagine justifying and defending the condition in court on appeal. The drafting should be sufficiently clear to support a Procurator Fiscal to prosecute.

Example

The licence holder must ensure that written/photographic confirmation is supplied from a compatibly trained / suitably qualified / xyz registered person to the licensing authority as soon as reasonably practicable / urgently/ but by no later than x date.

(iii) Action-oriented (place a duty on the licence holder)

5.41. The additional condition must require the licence holder to do or prevent something. There must be a clear action which the licence holder must take.

5.42. Licensing authorities should consider the way the mandatory conditions place duties on the licence holder as a template. “The licence holder must” is a good way to ensure that the condition is focused. Do not put the duty on other specific categories of people named on the licensing application (for example any letting agent or property management company). For the purpose of the mandatory and additional conditions, these are the licence holders.

(iv) Realistic

5.43. Licensing authorities should have regard to the circumstances of the licence holder, the short-term let activity and the premises in setting additional conditions. Whilst it might be realistic to expect premises in an urban setting to address uneven ground on the forecourt of the premises, this may not be appropriate for premises in a remote rural setting.

5.44. Realism must also be applied to any deadlines. For example, a large scale host or operator in an urban setting may find it easier to find a contractor (or have one in-house) compared with a small scale rural host or operator.

(v) Time-bound

5.45. When licensing authorities are drafting additional conditions that a specific action to be taken (for example, works to be completed), then they must set a date by which the action is to be completed. The timescale has to be realistic (see above).

Structure

5.46. The condition should be set out in four parts:

(i) Issue what is the issue or problem with the premises or short-term let activity?

(ii) Reasoning why is the additional condition required? There should be general and specific reasoning relating to the condition. This will help the licence holder understand that the specific action they are being asked to take is fair because it is to ensure a general outcome that applies in other similar circumstances. It will also help the licensing authority defend the condition should it be appealed and allow the Procurator Fiscal to explain the background should the matter ever proceed to the criminal courts.

(iii) Action what must the licence holder do?

(iv) Deadline when must any specific actions must be completed by?

Example

Issue

Upon inspection of the guest accommodation, the paths around the property were found to have uneven slabs at various locations, namely to the front and the side of the property.

Reasoning

General: All parts of a short-term let, both internally and externally, shall be maintained in a reasonable state of repair to the satisfaction of X Council and be free from any defect liable to prejudice the health and safety of the occupants.

Specific: Uneven slabs along the footpath, are a trip hazard and may cause a guest to trip and fall over.

Action

The licence holder must ensure that:

1. Repair work is carried out to lift and relay or renew the slabs at the uneven areas on the pathways around property, ensuring that the path is level and free of trip hazards.

2. Access to the uneven areas of the pathways around the property is prohibited until the repair work (set out at 1 above) has been carried out.

Timeframe

The works outlined above at (1) must be completed as soon as reasonably practicable but no later than [date].

Prohibited condition: limits on nights

5.47. Licensing authorities are prohibited from setting a condition limiting the number of nights a property may be used for secondary letting, as it may have the unintended consequence of properties lying empty for large periods each year^[16].

5.48. In many cases, sufficient revenue can be made from secondary letting in a small part of the year and the premises would likely lie empty for the rest of the year. (In Edinburgh, such a premises could make sufficient revenue from Hogmanay and the Edinburgh Festival and a few hen party weekends in the event that, for example a 90 night annual limit was set.) This then leads to an inefficient use of housing stock.

5.49. This condition does not apply to home sharing and home letting.

Template additional conditions

5.50. Licensing authorities should use the following templates for the following issues:

• antisocial behaviour;
• privacy and security;
• noise;
• littering and waste disposal;
• damage to property.

5.51. This is to ensure consistency across Scotland and to avoid arbitrary variation.

Antisocial behaviour

5.52. There are already a range of powers available to licensing authorities to deal with antisocial behaviour through provisions in the Antisocial Behaviour etc. (Scotland) Act 2004. Incidents involving antisocial behaviour should be reported to the relevant licensing authority directly who will be able to investigate and take appropriate action.

5.53. However, there are levels of noise and disturbance which are considered unacceptable in planning terms (and licensing terms) which may fall short of those capable of being described as a statutory nuisance.

5.54. Licensing authorities may wish to include a condition requiring the licence holder to manage their premises in a way to prevent anti-social behaviour as far as reasonably practicable, and to effectively deal with any instances of anti-social behaviour.

Template additional condition

1. The licence holder must manage the premises in such a way as to seek to prevent and deal effectively with any antisocial behaviour by guests to anyone else in the short-term let and in the locality of the short-term let.

2. The licence holder must take reasonable steps to:

• ensure that no disturbance or nuisance arises within or from the premises, for example by explaining the house rules to the guests;
• deal effectively with any disturbance or nuisance arising within or from the premises, as soon as reasonably practicable after the licence holder is made aware of it; and
• ensure any vehicles belonging to guests are parked lawfully, for example explaining where any designated parking spaces are to be found and highlighting any local rules.

Privacy and security

5.55. Licensing authorities may wish to impose conditions to ensure that the privacy and security of neighbours is safeguarded. The terms will vary depending on the exact circumstances. One particular issue is in respect of a shared entrance through which both guests and residents pass. In this scenario, the following condition might be used:

Template additional condition

1. The licence holder must manage the premises in such a way as to respect and protect the privacy and security of neighbours.

2. The licence holder must ensure:

• guests know and understand any particular rules applying to shared areas and entrances;
• guests understand that shared doors should be properly and securely closed after use; and
• the provision of access codes or keys to guests cannot be used by guests to gain access to shared areas after they have finally departed.

Noise

5.56. Licensing authorities may wish to impose conditions to minimise noise impact on neighbouring properties to short-term lets, particularly those in flatted, terraced or semidetached dwellings. Only conditions which are strictly necessary in the specific circumstances should be attached to a licence.

5.57. Noise conditions could include:

a) Physical moderations to the property in order to minimise noise impact on neighbours, such as:

• replacing wood floors with carpeted or vinyl flooring; or
• installing door closers to prevent doors being slammed.

b) Installation of noise monitoring kit within the premises to log noise, and notify the owner of any noise above a certain specified dB limit. Limits to be specified based on time of day, with lower noise limits overnight. Licensing authorities should be aware that noise monitoring kit within the premises is not useful in respect of noise occurring in external areas; and noise monitoring in external areas presents a range of challenges, including respect for the privacy of others and identifying the source of the noise.

5.58. Licensing authorities may want to set specific standards for floor coverings in certain circumstances.

5.59. Where physical alterations are required, licensing authorities may wish to physically inspect the property, or accept photographic or video evidence that the alterations have been completed to their satisfaction.

5.60. Where licensing authorities wish to require installation of noise monitoring kit, they may want to specify (subject to the capability of the kit and/or service provider):

• the appropriate specification and location for installation of the kit;
• day and night limits;
• any monitoring logging requirements (for example the time interval for logging noise); and
• the protocols for notification of a breach to the host, and to the licensing authority if necessary.

5.61. In considering the appropriate location for noise monitoring equipment, licensing authorities may wish to consider whether it would be both appropriate, and feasible, to request the installation of noise monitoring kit in shared areas such as tenement stairwells. On one hand, if noise monitoring kit was installed in a tenement stairwell it may be difficult to determine who was responsible for the noise (guests or neighbours). However, if it was combined with noise monitoring kit within any short-term let operating in the stairwell it may be possible to determine and attribute noise disturbances by comparing the logs of both sets of noise monitoring kits.

Template additional conditions

The licence holder must ensure that the bedrooms, living room and hallway in the premises are carpeted.

The licence holder must ensure that noise monitoring equipment [of type x] is maintained in full working order [in location y] and that the maximum reading does not exceed [a] decibels between 7 am and 11 pm, nor [b] decibels between 11 pm and 7 am.

5.62. Licensing authorities may wish to attach conditions relating to particularly noisy activities. For example, introducing a prohibition on guests checking in and checking out from a short-term let within a defined time period, to minimise noise impact in common areas, particularly from luggage. Where licensing authorities choose to apply this condition, the prohibition should normally be between 11 pm and 7 am to ensure consistency across Scotland.

Template additional condition

The licence holder must take reasonable steps to ensure that guests do not first arrive or finally depart from the property between the hours of 11 pm to 7 am. The licence holder must advise guests of this as part of their booking terms and conditions.

(Note: “reasonable steps” allows for exceptions, such as significantly delayed transport.)

Littering and waste disposal

5.63. There are fixed penalties of £80 for littering and £200 for fly tipping. Alleged offenders are required by law to provide their name and address to enforcement officers (from 1 June 2014)^[17].

5.64. Penalties can be issued by the police, by licensing authorities, and by public bodies including Loch Lomond and the Trossachs National Park.

5.65. Littering could occur within common areas in properties with shared facilities, such as tenements, as well as public areas within the vicinity of a short-term let. In both instances, it would be difficult to police and attribute any instances of littering to a particular property, or guest within a property.

5.66. Visitors using residential waste provision can put a strain on shared facilities. For example, short-term lets within a tenement creating a larger amount of waste due to increased turnover of guests and cleaning than a typical residential flat, putting strain on communal bins. Note, however, that waste from businesses operating secondary lets should not be treated as household waste but rather as commercial or trade waste; it cannot be placed in communal bins.

Template additional condition

1. The licence holder must provide adequate information on, and facilities for, the storage, recycling and disposal of waste.

2. The licence holder must advise guests of:

• their responsibilities;
• the use of the bins / sacks provided for the premises; and
• the location of the nearest recycling centre or recycling point.

3. The licence holder must:

• clearly label bins as belonging to the premises;
• ensure that guests manage their waste in compliance with (2), including when they depart; and
• maintain the bin storage area and the exterior of the premises in a clean and tidy condition.

Damage to property

5.67. With regard to preventing damage to public and private property:

Template additional condition

The licence holder must not affix a key box, or other device to facilitate guest entry to the property, to any public or jointly owned private infrastructure without prior written permission of the relevant authority or owner(s). The licence holder must be able to produce the permission to the licensing authority on request.