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

Licensing guidance part 2 is intended for Scottish licensing authorities, letting agencies and platforms facilitating short-term lets in Scotland.


5. Setting additional licence conditions

(a) Whether to set additional conditions

5.1. In addition to the mandatory licence conditions, which apply to all short-term lets across Scotland, licensing authorities may impose additional conditions[20].

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

5.3. 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 6.

5.4. 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.

5.5. 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

5.6. Some of the issues raised by residents and communities in relation to short-term lets, through the public consultation, 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).

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

(b) Scope of additional conditions

5.8. 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.

5.9. Licensing authorities cannot use additional conditions to contradict, modify or dilute mandatory conditions.

(c) How to publicise additional conditions

5.10. Where licensing authorities choose to use additional conditions they must publish their additional conditions, and failure to do so means the conditions have no effect.

5.11. Where licensing authorities choose to use additional conditions the Scottish Government expects them to:

  • include additional conditions on the licence documentation provided to the host or operator;
  • publish their additional conditions on their website, together with the criteria and circumstances they will use to determine when these apply.

(d) How to draft an additional condition

Preliminary

5.12. Licensing authorities are experienced in applying the Civic Government (Scotland) Act 1982 and, in determining whether additional conditions are appropriate, will wish to 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 6; and
  • the proposed additional condition does not contradict the requirements of the 1982 Act, Licensing Order or mandatory conditions.

5.13. It is advisable for licensing authorities to consider if an additional condition might have unintended consequences that are potentially as severe or worse than the issue to be addressed. For example, measures to limit noise indoors might lead to guests making noise outdoors instead.

Making it SMART

5.14. It is good practice for licensing authorities to ensure the format and wording of additional conditions are:

(i) Specific (unambiguous – anyone can understand what is meant by the condition);

(ii) Measurable (enforceable – the licence holder will know when they have complied or are complying with the condition);

(iii) Action-oriented (place a duty and clear action on the licence holder to do or prevent something);

(iv) Realistic (is it reasonable to expect the condition is achievable); and

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

Structure

5.15. The Scottish Government expects any additional condition to 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 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].

(e) Prohibited condition: limits on nights

5.16. Licensing authorities must not impose an additional condition limiting the number of nights a property may be used for secondary letting. The policy intention behind this is to ensure premises are not left empty for large periods each year[21].

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

(f) Template additional conditions

5.18. The Scottish Government has included suggested templates for the following issues:

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

5.19. Licensing authorities are encouraged to adopt this format when determining additional conditions to ensure consistency across Scotland.

Antisocial behaviour

5.20. While 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, there are levels of noise and disturbance that may fall short of being described as a statutory nuisance but are considered unacceptable in planning terms (and licensing terms).

5.21. 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 take reasonable steps to 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

5.22. Licensing authorities may wish to impose conditions to ensure that the privacy and security of neighbours is safeguarded. While terms will vary depending on the exact circumstances, the following template could be used where there is a shared entrance through which both guests and residents pass.

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

5.23. 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.

5.24. 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.

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

5.26. 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.

5.27. 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.

5.28. 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.

5.29. 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

5.30. 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 [22].

5.31. Penalties can be issued by Police Scotland, by licensing authorities, and by public bodies including Loch Lomond and the Trossachs National Park.

5.32. 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 attribute any instances of littering to a particular property, or guest within a property.

5.33. 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

5.34. 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.

Contact

Email: shorttermlets@gov.scot

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