The Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2022

Made: 27th January 2022

Coming into force: 1st March 2022

In accordance with sections 3A(3) and 44(3) of that Act[^f00002], a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

Citation and commencement

1

This Order may be cited as the Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2022 and comes into force on 1 March 2022.

Interpretation

2

• (1) In this Order—

• “1982 Act” means the Civic Government (Scotland) Act 1982,

• “accommodation” includes the whole or any part of a premises,

• “commercial consideration” includes—money,a benefit in kind (such as the reciprocal use of accommodation),

• “excluded accommodation” means accommodation described in paragraph 1 of schedule 1,

• “excluded tenancy” means a tenancy described in paragraph 2 of schedule 1,

• “foster child” has the same meaning as in section 1 of the Foster Children (Scotland) Act 1984 as read with section 2 of that Act,

• “guest” means a person who occupies accommodation under a short-term let,

• “host” means a person who is the owner, tenant, or person who otherwise exercises control over occupation and use, of the accommodation which is the subject of a short-term let,

• “unique licence number” means a unique number which—is assigned to each application or licence, andcontains a number or letters which—identifies the licensing authority, andis used in every licence number assigned by the licensing authority.

• (2) Where the accommodation is let to more than one person under a short-term let, references in this Order to the guest are to any one of those persons.

• (3) For the purposes of Article 3, a person (“A”) is an immediate family member of another person (“B”) if A is—

• (a) in a qualifying relationship with B,

• (b) a qualifying relative of B,

• (c) a qualifying relative of a person who is in a qualifying relationship with B, or

• (d) in a qualifying relationship with a qualifying relative of B.

• (4) For the purposes of paragraph (3)—

• (a) two people are in a qualifying relationship with one another if they are—

• (i) married to each other,

• (ii) in a civil partnership with each other, or

• (iii) living together as though they were married,

• (b) a “qualifying relative” means a parent, grandparent, child, grandchild or sibling,

• (c) two people are to be regarded as siblings if they have at least one parent in common,

• (d) a person’s stepchild or foster child is to be regarded as the person’s child,

• (e) a person (“C”) is to be regarded as the child of another person (“D”), if C is being or has been treated by D as D’s child.

• (5) Schedule 1 has effect.

Definition of short-term let and short-term let licence

3

In this Order—

• “short-term let” means the use of residential accommodation provided by a host in the course of business to a guest, where all of the following criteria are met— the guest does not use the accommodation as their only or principal home, the short-term let is entered into for commercial consideration, the guest is not— an immediate family member of the host, sharing the accommodation with the host for the principal purpose of advancing the guest’s education as part of an arrangement made or approved by a school, college, or further or higher educational institution, or an owner or part-owner of the accommodation, the accommodation is not provided for the principal purpose of facilitating the provision of work or services by the guest to the host or to another member of the host’s household, the accommodation is not excluded accommodation (see schedule 1), and the short-term let does not constitute an excluded tenancy (see schedule 1),

• “short-term let licence” means a licence granted for the activity designated in article 4.

Designation of activity

4

• (1) The activity specified in paragraph (2) is designated as an activity for which a licence under Part 1 of the 1982 Act is required.

• (2) The activity referred to in paragraph (1) is a short-term let on or after 1 October 2022.

• (3) Accommodation that is on a single premises requires only one short-term let licence.

• (4) Where a short-term let licence application is submitted in respect of multiple accommodation on a single premises, the licensing authority may grant the licence in respect of some or all of that accommodation.

Application of Part 1 of the 1982 Act

5

For the purposes of the licensing of the activity designated by article 4, the following have effect subject to the modifications in schedule 2—

• (a) Part 1 of the 1982 Act, and

• (b) Schedule 1 of the 1982 Act.

Mandatory licence conditions

6

A short-term let licence granted by a licensing authority is subject to the conditions specified in schedule 3.

Transitional provision

7

• (1) A relevant person does not commit an offence under section 7(1) of the 1982 Act[^f00003] if—

• (a) before 1 October 2023, that person makes an application to the licensing authority for the grant of a licence under Part I of that Act in respect of the activity being carried on by the person, and

• (b) that application has not yet been finally determined.

• (2) For applications received by a licensing authority prior to 1 October 2023 from a relevant person, section 3 of the 1982 Act[^f00004] is to be read as if—

• (a) for subsection (1), there were substituted—

(1) For the purpose of the discharge of their functions under this Part of this Act, every licensing authority must, subject to the following provisions of this section, reach a final decision on the application within the period of 12 months beginning on the day on which the application was made.

• (b) for subsection (2), there were substituted—

(2) On summary application by the licensing authority within the12 monthperiod referred to in subsection (1), the sheriff may, if it appears to them that there is good reason to do so, extend that period as they think fit.

, and

• (c) for subsection (4)(a), there were substituted—

(a) the 12 month period referred to in subsection (1), or

• (3) Paragraphs (4) to (7) apply to applications received by a licensing authority prior to 1 October 2023 from a relevant person where the licensing authority considers that use of the premises for a short-term let would constitute a breach of planning control for the purposes of the Town and Country Planning (Scotland) Act 1997[^f00005] by virtue of section 123(1)(a) or (b) of that Act.

• (4) The licensing authority may, as soon as reasonably practicable after receipt of the application, notify the relevant person that—

• (a) the licensing authority will suspend their consideration of the application for a period of three months beginning on the date of the notice,

• (b) the relevant person must, within that three month period, submit an application for planning permission or apply for a certificate of lawfulness of use or development which would, if granted, remedy the considered breach, and

• (c) the relevant person must notify the licensing authority that an application has been made in accordance with sub-paragraph (b).

• (5) Where the licensing authority notifies the relevant person under paragraph (4), the licensing authority may only refuse to consider the application under paragraph 2A of schedule 1 of the 1982 Act where—

• (a) the relevant person has not submitted an application for planning permission or a certificate of lawfulness of use or development, which would remedy the considered breach of planning control, within the period of three months referred to in paragraph (4)(a), or

• (b) the planning authority refuses the application for planning permission or a certificate of lawfulness of use or development and the relevant person does not appeal against that refusal or cannot appeal against that refusal.

• (6) Where the licensing authority does not notify the relevant person under paragraph (4), paragraph 2A of schedule 1 of the 1982 Act does not apply.

• (7) Where the licensing authority notifies the relevant person under paragraph (4), section 3(1) of the 1982 Act applies to the application as if the 12 month period begins on the earlier of—

• (a) the date on which the relevant person notifies the licensing authority in accordance with paragraph (4)(c), or

• (b) 1 January 2024.

• (8) For the purpose of paragraph (1)(b), an application is finally determined when—

• (a) the application is granted,

• (b) the application is withdrawn by the relevant person,

• (c) the licensing authority refuses to consider the application on the basis of paragraph 2A of schedule 1 of the 1982 Act,

• (d) the application is refused by the licensing authority and the period of 28 days specified in paragraph 18(4) of schedule 1 of the 1982 Act expires without an appeal against the refusal being made to the sheriff, or

• (e) where an appeal is made against a refusal by a licensing authority to grant the application, that appeal is disposed of.

• (9) For the purposes of paragraph (8)(e), an appeal is disposed of when—

• (a) it is abandoned by the appellant,

• (b) a decision is made by the sheriff or a higher court and any period for making a subsequent appeal to a higher court expires without such a subsequent appeal being made, or

• (c) no subsequent appeal is possible.

• (10) For the purposes of this article—

• “a relevant person” is a person who—carries on the activity designated by article 4 without a short-term let licence under Part I of the 1982 Act, andcarried on the activity before 1 October 2022,

• “a certificate of lawfulness of use or development” means a certificate under section 150 or 151 of the Town and Country Planning (Scotland) Act 1997.

Consequential amendments

8

Schedule 4 has effect.

SCHEDULE 1 — Excluded accommodation and tenancies

Excluded accommodation

1

Excluded accommodation means accommodation which is, or is part of—

• (a) an aparthotel,

• (b) premises in respect of which a premises licence within the meaning of section 17 of the Licensing (Scotland) Act 2005[^f00006] has effect and where the provision of accommodation is an activity listed in the operating plan as defined in section 20(4) of that Act,

• (c) a hotel which has planning permission granted for use as a hotel,

• (d) a hostel,

• (e) residential accommodation where personal care is provided to residents, including guest rooms provided at that accommodation for the purposes of visiting residents,

• (f) a hospital or nursing home, including guest rooms provided at the hospital or nursing home for the purposes of visiting residents of the hospital or nursing home,

• (g) a residential school, college or training centre,

• (h) secure residential accommodation (including a prison, young offenders institution, detention centre, secure training centre, custody centre, short-term holding centre, secure hospital, secure local authority accommodation, or accommodation used as military barracks),

• (i) a refuge,

• (j) student accommodation,

• (k) accommodation which otherwise requires a licence for use for hire for overnight stays,

• (l) accommodation which is provided by the guest,

• (m) accommodation which is capable, without modification, of transporting guests to another location,

• (n) a bothy, ...

• (o) accommodation owned by an employer and provided to an employee in terms of a contract of employment or for the better performance of the employee’s duties or,

• (p) guest rooms in sheltered housing which are provided for the purposes of visiting residents of that housing.

Excluded tenancies

2

An excluded tenancy means a tenancy which falls within any of the following definitions—

• (a) a protected tenancy (within the meaning of section 1 of the Rent (Scotland) Act 1984[^f00007]),

• (b) an assured tenancy (within the meaning of section 12 of the 1988 Act),

• (c) a short assured tenancy (within the meaning of section 32 of the 1988 Act),

• (d) a tenancy of a croft (within the meaning of section 3 the 1993 Act),

• (e) a tenancy of a holding situated outwith the crofting counties (within the meaning of section 61 of the 1993 Act) to which any provisions of the Small Landholders (Scotland) Acts, 1886 to 1931[^f00008]) applies,

• (f) a Scottish secure tenancy (within the meaning of section 11 of the 2001 Act),

• (g) a short Scottish secure tenancy (within the meaning of section 34 of the 2001 Act),

• (h) a 1991 Act tenancy (within the meaning of section 1(4) of the 2003 Act),

• (i) a limited duration tenancy (within the meaning of section 93 of the 2003 Act),

• (j) a modern limited duration tenancy (within the meaning of section 5A of the 2003 Act),

• (k) a short limited duration tenancy (within the meaning of section 4 of the 2003 Act),

• (l) a tenancy under a lease under which agricultural land is let for the purpose of its being used only for grazing or mowing during some specified period of the year (as described in section 3 of the 2003 Act),

• (m) a private residential tenancy (within the meaning of section 1 of the 2016 Act), or

• (n) a student residential tenancy.

Interpretation

3

• (1) In this schedule—

• “the 1988 Act” means the Housing (Scotland) Act 1988[^f00009],

• “the 1993 Act” means the Crofters (Scotland) Act 1993[^f00010],

• “the 2001 Act” means the Housing (Scotland) Act 2001[^f00011],

• “the 2003 Act” means the Agricultural Holdings (Scotland) Act 2003[^f00012],

• “the 2016 Act” means the Private Housing (Tenancies) (Scotland) Act 2016[^f00013],

• “aparthotel” means a residential building containing serviced apartments where—the whole building is owned by the same person,a minimum number of 5 serviced apartments are managed and operated as a single business,the building has a shared entrance for the serviced apartments, andthe serviced apartments do not share an entrance with any other flat or residential unit within the building,

• “bothy” means a building of no more than two storeys which—does not have any form of—mains electricity,piped fuel supply, andpiped mains water supply,is 100 metres or more from the nearest public road (within the meaning of section 151 of the Roads (Scotland) Act 1984[^f00014]), andis 100 metres or more from the nearest habitable building,

• “hostel” means a building, other than a dwellinghouse, in which there is provided for persons generally or for any class or classes of persons—residential accommodation, andeither or both—meals,cooking facilities,

• “personal care” has the same meaning as in paragraph 20 of schedule 12 of the Public Services Reform (Scotland) Act 2010[^f00015],

• “refuge” means accommodation used wholly or mainly for persons who have been subject to any incident or pattern of incidents, of—controlling, coercive or threatening behaviour,physical violence,abuse of any other description (whether physical or mental in nature), orthreats of any such violence or abuse.

• “serviced apartment” means a flat or residential unit in respect of which—services are provided to guests (such as housekeeping, a telephone desk, reception, or laundry),each flat or unit contains its own washing, cooking and dining facilities separate from each of the other flats or units, andthere is a management system in place to prevent anti-social behaviour and to impose limits in respect of the maximum occupancy of the flats or units,

• “sheltered housing” means accommodation—which is purpose built or designed to accommodate vulnerable adults,which enables those vulnerable adults to live independently, andwhere assistance or support is provided for those vulnerable adults,

• “student residential tenancy” means a tenancy—the purpose of which is to confer on the tenant the right to occupy the let property while the tenant is a student, andto which sub-paragraph (2) or (3) of paragraph 5 of schedule 1 (tenancies which cannot be private residential tenancies) of the 2016 Act applies,

• “student accommodation” means residential accommodation which has been built or converted predominantly for the purpose of being provided to students.

• “vulnerable adult” has the same meaning as in section 25 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

• (2) In paragraph 1(k), “licence” does not include an HMO licence granted under section 129 of the Housing (Scotland) Act 2006[^f00016].

SCHEDULE 2

PART 1 — Modification of Part 1 of the 1982 Act

Modification of Part I of the 1982 Act

1

Part I of the 1982 Act is to be read as if modified in accordance with paragraphs 2 and 3.

Standard licence conditions

2

After subsection (5) of section 3B (Mandatory licence conditions), insert—

(5A) Standard conditions determined in respect of a short-term let licence must not impose a limit on the number of nights for which premises may be used for secondary letting.

Warrants authorising entry and inspection

3

After section 5 (Rights of entry and inspection), insert—