I launched the Homes First campaign in 2017 to highlight problems with the legislative and regulatory regime around short-term lets (STLs). Throughout my time as an MSP, constituents in the Lothian region have contacted me to express their concern at the impact STLs have on their communities. I have published a range of papers on different aspects of the topic, including taxation, key safe deposit boxes and planning, and have proposed various solutions.
I support two key regulatory changes.
The first is to clarify and tighten up the planning system so that there is better and more effective oversight on the change of use from residential dwellings to commercial short-term lets – when a home stops being a home and becomes a commercial STL.
The second is to give local authorities the powers to licence STLs to ensure that they comply with basic fire, electric and gas safety; have appropriate public liability insurance in place; and that the operators are fit and proper persons.
These two regulatory changes have been the focus of my campaigning. They allow local authorities to regulate STLs in their area as they see fit, reflecting local conditions. Planning and licensing reform are NOT about imposing a uniform solution across Scotland but giving councils the powers that they need to do what they think is appropriate in consultation with the people they represent.
That, in short, is the job of Parliament – to pass regulations that deliver on the above.
The regulations
However, we have instead, two regulations that are in their own ways flawed.
It is worth bearing in mind that such regulations (or Scottish Statutory Instruments) are secondary legislation. That is to say, there is primary legislation (Acts) that give explicit powers to Ministers to introduce secondary legislation. In the case of the planning regulations, this is 26B(5) and 275 of the Town and Country Planning (Scotland) Act 1997. The licensing order is introduced using sections 3A(1), 44(1)(b) and (2)(a) and (b) and 136(2) of the Civic Government (Scotland) Act 1982.
The primary legislation from which the powers to introduce these regulations derive stipulates that the regulations must be subject to the affirmative procedure. That means that the statutory instruments become law only if Parliament approves it.
Importantly, however, there is no opportunity for Parliament to amend such legislation.
Parliamentary scrutiny
The regulations were debated at a meeting of the local Government and Communities Committee on Wednesday 3rd February. The Official Report of proceedings can be read here and the Committee’s report to Parliament is available here.
I opposed both regulations and urged the Minister to withdraw them and come back having considered the objections.
I object to the Planning Regulation because it requires Scottish Ministers to approve Short Term Let Control Areas before they can be designated. It’s a power of veto over a matter that should be wholly and exclusively within the competence of local authorities. In the Scottish Government’s consultation on this question, it was claimed that this is similar to the process of designating Conservation Areas. Section 61 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, however, only requires Councils to notify Ministers and when I challenged the Minister on this at Committee, he was forced to write to the Committee and apologise for the error.
I object to the licensing regulation because bed and breakfast businesses are within its scope despite it never having been intended that they would be. The Scottish Government denies this and says that they have always been included, pointing to a rather ambiguous sentence in the 2020 consultation paper.
There is a way round both of these objections if the Minister was prepared to withdraw the regulations and reconsider, but so far he has refused to do so. [see STOP PRESS above- the Licensing Regulation has been withdrawn]
I believe that legislation should be based on informed consultation with those who it affects and that powers for local government should not be subject to central government vetoes.
Thus, despite having campaigned hard for these measures, I find myself in the odd position of voting against the regulations. I would prefer not to be in this position, but without action from the government to improve the legislation, I have little choice.
In July 2019, the First Tier Tribunal issued an eviction order for a tenant living in a small studio flat in Edinburgh. The ground for eviction was that the landlord – along with his wife and daughter – wished to move from their 3 bedroom house into the studio flat.
Schedule 3 (4) of the Private Housing (Tenancies) (Scotland) Act 2016 states that a landlord wishing to recover a property to live in is a mandatory ground for eviction – in other words, the Tribunal must issue an eviction order.
Relations between the landlord and tenant had been strained for some time. It was the tenant’s belief that the landlord wished to evict the tenant and was using eviction ground 4 – an intention to live in the property – as an excuse. The Tribunal found, as they had to, that the test of establishing ground 4 had been met and issued an eviction order.
The tenant left in January 2020. In February, a new tenant moved into the property. The landlord remained in his three bedroom house.
The evicted tenant applied for leave to appeal the Tribunal decision. This was rejected. With the support of the Community Help and Advice Initiative, the tenant then applied for a Wrongful Termination Order. This in itself is an unusual step.
Even more unusually, in November 2020, the Tribunal granted it.
Wrongful Termination Orders were introduced by sections 57 to 60 of the 2016 Act. A tenant who has been evicted but believes that the landlord misled them can apply to the Tribunal for a Wrongful Termination Order. A tenant can apply whether they were issued an eviction order by the Tribunal or if they simply left the property when asked to.
(And most tenants do simply leave – because they have found another home, or it suits them to do so, or they do not want to kick up a fuss, or they are wary of entanglement in the court system.)
There have been previous applications for Wrongful Termination Orders. Although Scottish Housing News reported that the November 2020 decision was the first successful application for a Wrongful Termination Order, an earlier decision in December 2019 saw the Tribunal award £1,200 to a tenant it judged to have been wrongfully evicted. In that case, the landlord evicted the tenant on the ground that they wished to live in the property – but then took Airbnb bookings instead of moving in.
The vast majority of eviction cases lead to a successful eviction order for the landlord. This has been true even during the pandemic, although it is not yet clear what effect the Scottish Government’s temporary transformation of mandatory grounds to discretionary grounds will have. Applications for Wrongful Termination Orders are rare, and success is rarer still.
How many tenants have access to the help and support needed to apply? How many tenants are even aware that this is an option? The vast majority of tenants do not even attend Tribunal hearings when summoned. Organisations like CHAI and Living Rent do phenomenal work, but their resources are stretched. There is a chronic lack of awareness among tenants about their rights.
There is also a fundamental flaw in the legislation. As the Tribunal pointed out in the decision notice, the bar set by the Scottish Government for proof of the landlord’s intention to live in the property is very low indeed. Coronavirus changes aside, you can legally evict your tenant by providing an affidavit stating that you intend to live there.
The reforms of the last few years have strengthened the rights of tenants in Scotland. Yet it remains the case that a landlord who wishes to be rid of a tenant can evict them on the strength of a promise that they are telling the truth. There is no follow-up. Nobody checks that they were telling the truth. It takes a tenant who has both the willpower to push ahead and the support of a charity to uncover a wrongful eviction. It goes without saying that most tenants do not have these resources.
The maximum penalty that can be imposed by the Tribunal in the case of a wrongful termination is six months’ rent. In the November 2020 case, £1,350 was awarded to the tenant – three months’ rent. The Tribunal took both the landlord’s continued dishonesty and the tenant being in rent arrears into consideration.
When a Wrongful Termination Order is issued, the Tribunal sends it onto any local authorities who have the landlord on their landlord register. This is significant because of the fit and proper person test that local authorities should conduct on prospective landlords. Clearly, a landlord who has deliberately misled the Tribunal is not a fit and proper person to hold a landlord registration. It is worth noting in this context that the landlord who was the subject of the 2019 WTO referred to above (who let the property as AirBnB despite claiming that they intended to live there) remains on the Landlord Register.
The rarity of successful Wrongful Termination Orders reveals the flaws in the 2016 act. A priority for the next government should be fixing this legislation so that the rights of landlords and tenants are properly balanced. The private rented sector is crying out for reform. The starting position of any reform should be that housing is a human right, that a tenant’s home is in fact their home and that they should only be evicted in the most exceptional circumstances.
Rising private rents across Scotland reveal the failure of the SNP’s flagship rent pressure zones policy and the need for proper rent controls, Scottish Greens housing spokesperson Andy Wightman has said.
In 2016, Scottish councils were given the power to ask Scottish Ministers to designate a Rent Pressure Zone (RPZ) to give them limited powers over rent rises. Despite rising rents and a global pandemic, councils have been unable to use that power.
A new paper by Lothian MSP Andy Wightman exposes the difficulty councils have had in gathering evidence to support a RPZ. It also evaluates what actions councils have taken to collect data and protect tenants from rent rises.
In response to an FOI, 18 councils did not provide any information on work on rental data or RPZs. Ten councils held basic information on private rents and 4 councils had gone further by commissioning their own research or initiating work on establishing a RPZ.
Commenting, Andy Wightman said: “Rents have outstripped inflation over the past decade. Councils have been unable to act to protect private tenants, even during a global pandemic.
“Clearly, giving councils the power to establish a RPZ without having to seek permission from Ministers would be a start, but Scotland needs a comprehensive system of rent control in order to protect private tenants from eye-watering rent rises.”
The Scottish Parliament is being asked to delay the implementation of regulations on smoke and carbon monoxide alarms. This follows an upswell in public concern over ‘new rules’ about fire alarms in privately owned homes.
But what, exactly, is Parliament being asked to delay, and why?
The Order inserts two additional requirements into the tolerable standard as set out in Section 86 of the Housing (Scotland) Act 1987, relating to equipment for detecting fire and carbon monoxide.
The tolerable standard is a basic level of repair that your property must meet in order to be habitable. Councils have powers to force property owners to bring their property up to the tolerable standard, as well as establish support schemes. However, the tolerable standard is not a statutory duty on owners; it is not a requirement to be fulfilled; it is not a building standard. A house without adequate loft insulation probably won’t meet the tolerable standard, but no council is likely to take action against a homeowner who does not insulate their loft.
If you rent out a property, you must meet the repairing standard. Unlike the tolerable standard, this is a duty – the property owner must provide a habitable home for their tenants. The repairing standard includes the provision of suitable fire and carbon monoxide detection devices. The 2019 Tolerable Standard Order was intended to bring safety standards for properties in the owner-occupier sector in line with the private rented sector.
The actual text of the order stipulates that, in order to meet the tolerable standard, houses must have “satisfactory equipment” for detecting fire and carbon monoxide.
What is ‘satisfactory’? The statutory instrument does not define it. Most properties with existing fire and carbon monoxide detection systems will meet the letter of the law.
The Scottish Government produced guidance in January 2019 which says that “satisfactory equipment” means:
one smoke alarm installed in the room most frequently used for general
daytime living purposes (normally the living room/lounge);
one smoke alarm in every circulation space on each storey, such as hallways and landings;
one heat alarm installed in every kitchen;
all smoke and heat alarms to be ceiling mounted; and
all smoke and heat alarms to be interlinked.
This mirrors the specification in the guidance available to private sector landlords on fire detection systems. The difference is that if a landlord does not meet the repairing standard, their tenants have access to legal redress through the First-Tier Tribunal (Housing and Property Chamber).
Guidance is not scrutinised by Parliament. It is not voted on. It is what the government produce in order to communicate legislation to those affected. In this case, homeowners. And how did the government communicate these proposed changes to homeowners?
I submitted a written question last month to the Scottish Government asking “what specific steps it has taken to inform homeowners of the changes introduced by the Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) Order 2019 since January 2019, and when it took these steps.” In reply, the Minister for Housing and Planning told me:
“Following the changes to the tolerable standards, announced in March 2018, there was significant media coverage. The changes were further reported as they passed through Parliament, and the regularly updated online Q and A has been available since March 2018.
We have worked closely with the Scottish Fire and Rescue Service (SFRS) who have continued to publicise the changes via themed social media campaigns, all linking to what the requirements mean for home owners.
Further information, literature and advice are also provided during SFRS’ Home Fire Safety Visits.”
Is media coverage, an online Q&A and social media coverage sufficient? It was clear from the outcry last month that many homeowners had no idea these changes were coming. Every homeowner in Scotland receives a council tax bill – the perfect opportunity to communicate changes in law affecting homeowners.
A further consideration is insurance. As ever, individual insurers will have decisions to make about whether a property is insurable. If a property meets the letter of the law, but not the guidance, will homeowners face issues with cover?
The Scottish Government now has a number of options before it. It could – as it has proposed – delay the date at which the order comes into force. Kevin Stewart wrote to the Local Government and Communities Committee on 20th October to notify the committee that he would be asking Parliament to approve a 12 month delay. Is 12 months enough? And will the guidance be revisited? How will these changes now be communicated? How will the government ensure that unscrupulous companies do not take advantage of vulnerable people concerned about whether their fire alarms are up to spec?
This legislation was introduced in the shadow of Grenfell, as part of the drive to improve fire safety standards in our homes. The Scottish Government’s intention was to ensure that fire safety standards were the same whether you rent or own your home. Such a change should have been communicated clearly to homeowners at the earliest possible opportunity together with a clear understanding of what people did or did not need to do. The Scottish Parliament will probably extend the deadline but Government is in for some tough questions as to why it failed to communicate these changes more effectively and timeously.
I am delighted to be with you this morning at our autumn conference.
As we prepare for a Scottish election next year and local elections the year after, green politics has never been more important. With other parties now admitting to the existence of the climate emergency that we recognized long ago, it is vital that Green voices are heard loud and clear in mapping the way forward for our planet and all who share it with us.
We have come a long way.
The first time I was invited to address the SGP conference was in 1996 when it was held in a Guest House in Aberfeldy. I had just published ‘Who Owns Scotland?’
Plenary sessions were held in the lounge in front of the fire.
And although our conference today is bigger and more digital, the arguments I set out in 1996 over our land remain.
20 years of devolution have barely scratched the surface of the radical redistribution of power over our land and natural resources that’s sorely needed.
Much like 25 years ago, half of the country’s privately-owned rural land remains owned by a mere few hundred landowners.
And much like 100 years ago, much of Scotland’s land mass is kept barren as intensively managed grouse moors, damaging ecosystems and destroying wildlife.
But friends, it doesn’t have to be that way.
Over these past 25 years it’s been clear to me that the 4 core green principles of equality, peace, environmental sustainability and radical democracy hold the answers to this and many other problems.
After all, most folk don’t routinely seek out or actively pursue inequality or conflict.
Most folk want a world that is green with clean water, clean air and abundant nature.
They want a world that is just and fair to all.
And they want to play a part in shaping the world in which they live.
What stands in their way? Populism, narrow nationalism, totalitarianism, and the insane imperatives of capitalism itself all seek to corrupt and frustrate the realisation of these basic human instincts.
Democracy provides a vital path through this corruption. Not just democratic parliaments and councils but Democracy in the workplace, in political institutions, in finance, and of course, in land.
Fundamentally green politics is about redistributing power from the few to the many, from capital to workers, from elites to the public, from corporations to customers and from centralised government to decentralised government.
Tony Benn famously asked five questions of those who claimed to enjoy a position of power:
“What power have you got?
Where did you get it from?
In whose interests do you exercise it?
To whom are you accountable?
and finally
How do we get rid of you?”
Benn would explain that: “Anyone who cannot answer the last of those questions does not live in a democratic system.”
As some of you may know I first got involved in environmental politics whilst studying forestry at Aberdeen University.
In the 1980s there was a raging controversy over commercial afforestation of the deep peatlands of Caithness and Sutherland. This was driven by tax breaks for the wealthy and whilst I was as concerned about the environmental issues as many others, it was the politics of the situation that really caught my attention.
The Chief Executive of the company responsible for this activity gave a lecture and I asked him why the Government was giving millions of pounds in tax breaks to wealthy people in London to plant trees in the far north of Scotland?
Why, for example, did the Government not use the money it was foregoing in tax receipts to provide grants to the farmers and landowners who owned the land in Caithness so that they could plant the trees?
I don’t recall his answer but afterwards, my Professor pulled me aside and suggested it was not a good idea to ask such political questions.
And so I decided that asking such questions was in fact a splendid idea and, the more it made folk uncomfortable, the more I enjoyed it. Indeed it is a good life lesson for all of us. Never stop questioning things.
This was an environmental conflict – over the use of what to some people was cheap land from which to derive a profit but to others was an precious habitat, and one of the largest carbon sinks in Europe
It was, in short, a power struggle.
But has much changed?
Who has been funding current reforestation efforts trumpeted by the Scottish Government? An oil giant, Shell.
Shell’s £5m so they can advertise their green credentials on petrol pumps is greenwashing, pure and simple.
And the recent Forestry Act perpetuates power in Edinburgh. Wealthy private interests continue to be privileged in Scotland’s forestry sector.
Equally lucrative tax breaks remain, together with an equally generous grants scheme that is largely captured by wealthy land owners.
For example, if you have a spare £7.5 million, you can buy Kinrara Estate in the Cairngorms National Park and then pocket £2-3 million of public money to restore woodlands.
No wonder our pattern of forest ownership remains skewed.
Indeed Scotland has the most concentrated pattern of private forest ownership and the lowest proportion of the population involved in owning forests in Europe.
Forest industries in Sweden and Finland for example include huge member-owned industrial co-operatives such as Sodra and Metsalitto corporation
In France there are 11,000 local forest communues owning around 3 million hectares of forest – a fifth of French forests.
As in so many matters of public policy, Scotland is not a normal European country even with the devolved powers we have.
And so I am pleased to announce that in the next couple of months Scottish Greens will launch a campaign called Woodland Nation – a plan to become a normal European country through a socially responsible and environmentally restorative programme of reforestation owned and controlled by local people.
This will not be achieved by funneling grants and tax breaks to the wealthiest nor does the current Cabinet Secretary, Fergus Ewing, who is little more than a lobbyist for powerful private interests, have any interest in such a programme.
Scottish Greens will be making the case for fundamental change.
With a target to reach 40% woodland cover by 2040, achieved by a programme involving communities, local authorities and local people to create a Woodland Nation.
A programme where 50% of all grant support will be targeted at community and local forestry projects.
A programme linked to a strategic programme of community land acquisition across Scotland secured at economic value and not the inflated market value associated with scottish land.
We will promote new national public forests financed by community shares but managed locally for local benefit.
We will make it mandatory to restore natural forests on our most denuded landscapes.
And we will reform the governance of Forestry and Land Scotland so that it is accountable to elected regional boards.
And all of this needs to be tied into an industrial programme that provides high quality, energy efficient timber homes for rural families.
In short, land must be owned and used in the public interest and for the common good.
But today, up to a fifth of Scotland’s land mass is currently used as a playground for the ritual slaughter of grouse and other wildlife for the privileged. Let us be clear. Grouse moors have no place in a Scotland that needs communities empowered and forests and peatlands restored.
Scotland also has substantial renewable energy potential but much of the industry is now dominated by large multinationals rather than community and local businesses, and just this week we have seen the betrayal of the workers at Bifab, denied any role in supplying the enormous new offshore wind farm being developed off the coast of Fife.
And For all that we like to compare ourselves with similar European countries such as Denmark, the current heat networks bill going through Parliament is a reminder of how far we fall short
Denmark’s district heating schemes are the responsibility of the municipalities who also own most of the pipe network with consumer-co-operatives owning the rest.
And by law, in Denmark all suppliers of heat must operate on a not-for profit basis.
In contrast the proposed arrangements in Scotland exclude local communities, centralise power with Ministers and there is no not-for-profit requirement.
What is normal in Denmark should be normal here.
And in no area of public policy is our departure from European norms so pronounced as in housing.
Scotland continues to face a housing crisis.
Homelessness is on the rise.
Many young people in particular are struggling to afford housing being forced into the private rented sector with exorbitant rents in places like Edinburgh.
We are failing.
Because housing is framed as a property rights issue rather than a human rights issue.
Because housing is seen as a financial investment rather than a place to call home
Back in 2019 a constituent, Colin Brown, got in touch with me.
Colin was a tenant of an Edinburgh property company called Express Investments Ltd who owned multiple properties across the city.
Colin received a notice to quit his home of 27 years in May 2019. He refused to leave and I assisted him with contesting the eviction order at the tribunal. Colin lost the case but is thankfully now safely rehoused.
Whenever I met Colin, the first thing he would always say to me is “this is my home, it is not a property”.
Yet even if Colin had been covered by the new private sector tenancies introduced in 2018, he would still have been facing eviction.
Because the reason the landlord wanted to evict him was so that they could sell his home.
Colin had no objection to his landlord selling the property. He merely wanted the right to remain in this home. But the law says that the landlords right to sell trumps the tenants right to a home.
In few other countries in Europe are the rights so skewed so much in favour of landlords.
In few other countries in Europe do housing costs contribute so much to poverty.
The Recent Edinburgh Poverty Commission found that 29% of households in this city were living in poverty solely due to housing costs.
In short, there is no pathway to eradicating poverty that does not run through housing.
And that is why Greens will be proposing a new deal for Scottish housing.
Realistic and effective rent controls including the right to request a rent reduction.
An end to eviction grounds such as the wish of the landlord to sell.
Fairer taxation and a replacement for the regressive council tax.
Elimination of the speculative volume house building industry that denies consumers any say in their housing options – unlike normal European countries where the bulk of new housing is self-procured to higher standards.
A right for councils and communities to acquire land at its existing use value – not the inflated value arising as a consequence of planning permissions.
And a significant expansion of affordable housing – like normal European countries where in Vienna for example over 60% of households live in affordable social housing.
To conclude friends:
From our land and forests, to renewable energy and housing, Scotland is not a normal European country.
The odds are always stacked in favour of the wealthy, whether they be the big land owners, landlords, or corporates.
And as a result, the rich get richer and the poor poorer.
This is not an accident. It’s a policy choice, and for all their talk about building a wellbeing economy, over the last five years of this Government, time and time again we’ve seen the SNP choose to side with powerful vested interests rather than the public interest.
Standing up for landlords when the pandemic hit us whilst joining with the tories to block my proposals for better protection for tenants. In no other country in Europe would a Private Sector Resiliance group set up to safeguard tenants during the coronavirus pandemic have no representatives of tenants on it.
And that’s why if you believe in a building a fair and green Scotland then the Greens are the party for you.
The reason there is a global green movement is because the planet is imperilled. Our economic and political systems are designed for endless growth on a finite planet.
And we need to work together across international boundaries in solidarity.
To secure the future for the planet, Greens have long recognised the need for social, economic and political change.
That change involves of course Scotland becoming a self-governing independent nation. But it also involves creating genuine self-governing local government and communities.
And it involves doing what we can within the devolved settlement to make Scotland a normal European country in how we run our communities, plan our public transportation, own and govern our land and natural resources and organise our housing systems.
Conference, it is the Scottish Greens who have been working for Scotland. We can deliver a fair and greener European country. Through democratizing society. By giving power back to workers and communities who are fighting for a fair, just and sustainable Scotland.
So colleagues Take heart from their efforts and believe that together we can make the kind of progress in the year ahead that will make a truly green normal European Country.
The problems caused by the rampant expansion of short-term letting in Edinburgh are by now well known. Since launching my #HomesFirst campaign in November 2017, I have been arguing for proper regulation of this activity.
During this time, I have spoken with people who no longer have any permanent neighbours. I have listened to owners of short-term lets who rely on the income to supplement their pension or wages. Along with other Edinburgh MSPs, I have written to the Scottish Government to ask them to act. I have made attempts to amend legislation to help combat the problems experienced by my constituents. During the pandemic, I have tried to amplify the concerns of those constituents about short-term lets with shared entrances continuing to operate.
So I am pleased that the Scottish Government is now consulting on regulations relating to control areas and licensing of short-term lets.
The deadline for responses is Friday 16th October.
In this blog I will discuss the Scottish Government’s proposals as regards short-term lets, as well as some of the weaknesses in the plan. At the end of the blog is a link to my consultation response.
What do we mean by “regulation”?
The proposals in the consultation cover two important regulatory processes – licensing and planning. Put simply, licensing is a process whereby individuals are licensed to carry on certain activities such as operating a taxi or selling alcohol. In this case, the proposal is to give local authorities the powers to license the operators of short-term lets and the consultation sets out a series of questions about how this might be done.
Planning, on the other hand, is a process whereby planning authorities regulate the use of land and property. In this case the planning reforms involve how to establish short-term let control areas – zones within which any short-term let will require to have planning consent.
In short, planning is about whether a property can be used as a short-term let and licensing is about ensuring that the operator of any such premises is a fit and proper person who has the appropriate safety and other measures in place.
The consultation is not about the principle of these two regulatory measures but about the detailed content of each. Thus it is quite technical but detail is important.
On the whole, the plan is comprehensive and well-thought out. Of course, all of this is subject to the consultation, but it is likely that the following will come to pass.
Planning control areas
The Scottish Government plans on allowing councils to designate short-term let control areas. Unlike the failed rent pressure zones, they will use a tried and tested process along the lines of establishing conservation zones. You can expect that some councils will be very quick off the mark in requesting these control areas.
What will those control areas mean? Within a control area, short-term lets must have planning consent. No ifs, no buts. Of course, it has been my position all along that operating a dwellinghouse as a commercial business should always require planning consent. Within control areas, the situation will now be crystal clear.
Short-term let licensing
Short-terms will now be subject to local authority licensing. The consultation document is clear:
“All short-term lets will require a licence.”
From April 2021, local authorities will be able to introduce licensing schemes. All local authorities must have a scheme in place by April 2022. There will be both national conditions and local conditions of holding a licence. Local authorities can apply conditions to all short-term lets in their area, to some short-term lets (e.g. in tenements) and to individual licensees.
Short-term lets will have to be in good repair. They must be certified safe when it comes to fire, gas, electricity, legionella and carbon monoxide. The licence must be displayed in the accommodation. The licence number should be included in online listings. The consultation document mentions various other conditions that local authorities could apply locally, relating to anti-social behaviour, noise, greeting guests, litter and data collection. Local authorities will collect application fees as well as annual monitoring fees.
Operating without a licence or breaching licence conditions will attract fines of between £200 and £50,000.
Finally, if the short-term let requires planning consent, that will be a mandatory pre-condition of holding a licence.
Key issues
This is all extremely welcome.
However, there remain some key issues that need to be tackled
First, it does little in the way of directly combating the number of short-term lets. The root problem of commercial short-term lets operating in the numbers that we have seen in city centres is that they take homes away from the housing supply. It is vital therefore that the City of Edinburgh Council adopts planning policies, ditched in 2011, that prioritise use of housing for homes – the #HomesFirst approach.
Second, licensing is welcome but it is not a panacea. I hope that the energy of short-term let campaigners will mean a greater degree of scrutiny is brought to bear on short-term let licensing than in other areas. I know from my casework as an MSP that residents who wish to object to houses in multiple occupation (HMOs), for example, often face a long uphill battle.
Third, the grace period – the time between a local authority establishing a licensing scheme and short-term let operators needing a license – is up to 2 years. Many residents of short-term let hotspots already feel like action has been slow. It will be up to councils to speedily implement a licensing scheme.
Fourth, planning enforcement is an overlooked but important mechanism for combating problems like short-term lets. Planning teams have been subject to large cuts to their budgets in recent years. Checking whether planning control has been breached takes time and resources: visits to the property, desk research, processing reports from neighbours, identifying and contacting the owner.
Fifth, I am pleased that local authorities will have to maintain a register of licensed hosts. It is not clear whether this register will be open to the public, like the HMO register, or with limited access, like the landlord register. It is not possible to use the landlord register to view a list of properties owned by a particular person. That is not transparent. I believe it is in the public interest to be open about property ownership, whether rented to permanent tenants or to short-stay guests.
Sixth, another pitfall of licensing regimes is false licence numbers. Each short-term let licence holder will be issued a unique number, which should be displayed on accommodation booking platforms. Those platforms will not check the accuracy of those numbers. There is no process for local authorities to check the multitude of platforms for fake numbers.
Other countries that have introduced short-term let licensing schemes have experienced this problem. Without a way of compelling accommodation providers like Airbnb and booking.com to check that license numbers are real, fake numbers will abound. I hope that action against short-term let owners who operate without a licence will be swift and thus an effective deterrent.
A final note
Short-term let owners have often felt under attack from campaigners in this area. I myself have been the subject of some scathing press releases from the industry body. I take no issue with any responsible short-term let owner who manages the behaviour of their guests and is considerate of their neighbours. However, the sheer number of short-term lets in areas such as Edinburgh, Skye and the East Neuk has had serious consequences for the local housing markets. Folk who want to live where they have always lived, or move to an area for work, have been priced out.
Additionally, many short-term lets in Edinburgh are not owned by individual operators supplementing an income or pension. They are owned by large companies, sometimes registered overseas. Money has been extracted from local economies for years. City centres have been hollowed out. Rural families have struggled to find affordable accommodation.
I am glad that the Scottish Government acknowledges the problems associated with short-term lets and is taking steps to address them. The Housing Minister says they have “worked quickly to develop detailed proposals”. That is half right: the proposals are detailed, but they come very late in the day.
Please do respond to the consultation by Friday 16 October.
This is a brief blog to explain the background to the rented housing amendments I lodged at Stage 2 of the Coronavirus (Scotland) (No.2) Bill on Tuesday 19 May and those I intend to lodge at Stage 3 to be considered on Wednesday 20 May.
The Coronavirus (Scotland) (No.2) Bill is the second piece of emergency legislation to come before the Scottish Parliament. The first was the Coronavirus (Scotland) Act passed in a single day on 1 April.
Both pieces of legislation are designed to respond to the challenges posed by Covid-19 and typically make some administrative changes to how the courts and public bodies work as well as some more substantive policy changes in housing, licensing and justice.
Many people are facing new hardships due to job losses, declines in incomes and wider insecurities. These include renters who, like everyone else, are required to stay at home but whose security in their home its subject to laws on housing tenancies and the attitudes of landlords.
Responding to this, the first Act extended the period of notice required to be given by a landlord to a tenant if they wished to evict them. This was designed to ensure that renters could not be evicted during the pandemic. These reforms, however, did nothing to stop evictions being initiated during the so-called emergency period. I lodged a series of amendments to prohibit any evictions being sought during the crisis (not simply require longer notice periods). These amendments were rejected by Parliament.
Since 1 April it has become clear that longer notice periods will not be sufficient to deal with the hardship likely to be faced by many tenants – hardships that will extend beyond the emergency period when landlords will, if nothing changes, be within their rights to seek to evict tenants once again on the grounds of rent arrears that may have accrued as a result of hardship during the crisis.
So, when the new Coronavirus (Scotland) (No.2) Bill was introduced to Parliament on Monday 11 May I took the opportunity to propose amendments that would seek to deal with the post-covid period. I notified the Housing Minister on Tuesday 12 May of my intentions and invited him to discuss my proposed amendments with a view to potentially supporting them at Stage 2 (or stating why he could not).
I received no response.
Thus I lodged amendments 16-20 which did four main things.
Amendment 16 established a tenant Hardship Fund to respond to tenants in particularly acute distress.
Amendment 17 sought to freeze rents for two years.
Amendment 18 provided that in certain circumstances (to be seat out by Ministers) rent liability for some tenants facing particular hardship could be extinguished.
Amendments 19 and 20 were deigned to ensure that any rent areas accrued during the crisis would continue to be payable to landlords but could not be ground for eviction. This would prevent tenants losing their home but they would continue to be liable to pay any rent arrears accrued.
A number of parties including social housing interests wrote to the Committee with their concerns. I was not copied in to any of these representations and thus was unable to respond to them.
All the amendments were defeated by SNP and Conservative members of the Committee with the Liberal Democrat member supporting three of them and opposing two of them.
The arguments can be seen in the draft Official Report of the Meeting. All the housing amendments were dealt with at the beginning of the meeting.
Debate now moves onto Stage 3, the amendment deadline for which is 0930 on Wednesday 20 April. I am lodging a similar suite of amendments again but further amended to reflect objections made at Stage 2.
Amendment 16 will be taken forward by Pauline McNeill MSP (note that these numbers relate to the Stage 2 amendments, the amendment numbers for Stage 3 will be different)
Amendment 17 will now apply only to the private rented sector and the baseline date will be 1 April so as not to disadvantage landlords who have reduced rents during the crisis.
Amendment 18 now makes clear that writing off rents is only for tenants facing unusual or extreme hardship and it will be for Ministers to define this in regulations. It is NOT and NEVER was framed as a broad writing off of rent.
Amendments 19 and 20 now apply only to the private rented sector and make explicit that arrears can only be disregarded for the purpose of evictions (but remain payable) if the arrears are directly liked to coronavirus.
The redrafted amendments focus the intentions more explicitly, respond to objections and remain a modes but important suite of reforms designed to afford proportionate protections to tenants facing hardship because of factors beyond their control.
Scotland still lags behind many continental European countries in tenants rights and politicians continue to instinctively protect propertied interests rather than the interests of tenants. Since the propertied class have assets, they are relatively well off. For tenants, however, we are talking about their homes, the schools their children attend and the jobs they have. Tenants stand to possibly lose all of this and be kicked out of their homes. Landlords will still have a valuable asset.
It is time to stand up for the human right to a home.
This is a brief blog to explain the background to the rented housing amendments I lodged at Stage 2 of the Coronavirus (Scotland) (No.2) Bill on Tuesday 19 May and those I intend to lodge at Stage 3 to be considered on Wednesday 20 May.
The Coronavirus (Scotland) (No.2) Bill is the second piece of emergency legislation to come before the Scottish Parliament. The first was the Coronavirus (Scotland) Act passed in a single day on 1 April.
Both pieces of legislation are designed to respond to the challenges posed by Covid-19 and typically make some administrative changes to how the courts and public bodies work as well as some more substantive policy changes in housing, licensing and justice.
Many people are facing new hardships due to job losses, declines in incomes and wider insecurities. These include renters who, like everyone else, are required to stay at home but whose security in their home its subject to laws on housing tenancies and the attitudes of landlords.
Responding to this, the first Act extended the period of notice required to be given by a landlord to a tenant if they wished to evict them. This was designed to ensure that renters could not be evicted during the pandemic. These reforms, however, did nothing to stop evictions being initiated during the so-called emergency period. I lodged a series of amendments to prohibit any evictions being sought during the crisis (not simply require longer notice periods). These amendments were rejected by Parliament.
Since 1 April it has become clear that longer notice periods will not be sufficient to deal with the hardship likely to be faced by many tenants – hardships that will extend beyond the emergency period when landlords will, if nothing changes, be within their rights to seek to evict tenants once again on the grounds of rent arrears that may have accrued as a result of hardship during the crisis.
So, when the new Coronavirus (Scotland) (No.2) Bill was introduced to Parliament on Monday 11 May I took the opportunity to propose amendments that would seek to deal with the post-covid period. I notified the Housing Minister on Tuesday 12 May of my intentions and invited him to discuss my proposed amendments with a view to potentially supporting them at Stage 2 (or stating why he could not).
I received no response.
Thus I lodged amendments 16-20 which did four main things.
Amendment 16 established a tenant Hardship Fund to respond to tenants in particularly acute distress.
Amendment 17 sought to freeze rents for two years.
Amendment 18 provided that in certain circumstances (to be seat out by Ministers) rent liability for some tenants facing particular hardship could be extinguished.
Amendments 19 and 20 were deigned to ensure that any rent areas accrued during the crisis would continue to be payable to landlords but could not be ground for eviction. This would prevent tenants losing their home but they would continue to be liable to pay any rent arrears accrued.
A number of parties including social housing interests wrote to the Committee with their concerns. I was not copied in to any of these representations and thus was unable to respond to them.
All the amendments were defeated by SNP and Conservative members of the Committee with the Liberal Democrat member supporting three of them and opposing two of them.
The arguments can be seen in the draft Official Report of the Meeting. All the housing amendments were dealt with at the beginning of the meeting.
Debate now moves onto Stage 3, the amendment deadline for which is 0930 on Wednesday 20 April. I am lodging a similar suite of amendments again but further amended to reflect objections made at Stage 2.
Amendment 16 will be taken forward by Pauline McNeill MSP (note that these numbers relate to the Stage 2 amendments, the amendment numbers for Stage 3 will be different)
Amendment 17 will now apply only to the private rented sector and the baseline date will be 1 April so as not to disadvantage landlords who have reduced rents during the crisis.
Amendment 18 now makes clear that writing off rents is only for tenants facing unusual or extreme hardship and it will be for Ministers to define this in regulations. It is NOT and NEVER was framed as a broad writing off of rent.
Amendments 19 and 20 now apply only to the private rented sector and make explicit that arrears can only be disregarded for the purpose of evictions (but remain payable) if the arrears are directly liked to coronavirus.
The redrafted amendments focus the intentions more explicitly, respond to objections and remain a modes but important suite of reforms designed to afford proportionate protections to tenants facing hardship because of factors beyond their control.
Scotland still lags behind many continental European countries in tenants rights and politicians continue to instinctively protect propertied interests rather than the interests of tenants. Since the propertied class have assets, they are relatively well off. For tenants, however, we are talking about their homes, the schools their children attend and the jobs they have. Tenants stand to possibly lose all of this and be kicked out of their homes. Landlords will still have a valuable asset.
It is time to stand up for the human right to a home.
Over the past few months I have been assisting a constituent to resist a Notice to Quit served on him to evict him from his home. I have set a Crowdfunder up to raise funds to pursue a legal case on human rights grounds to halt the eviction of 67 year-old Colin Brown from his home of 27 years in Leith, Edinburgh.
Colin’s landlord is a company called Express Investment Company Ltd. The company owned 29 residential properties as at March 2018 and is disposing of all of them. In the case of eleven tenants who have secure tenancies, their homes have been sold with the sitting tenants remaining in their homes. Notices to Quit on the remaining properties have been served and the tenants have left. Colin Brown is the last remaining tenant. He is challenging his eviction in the First Tier Tribunal at a hearing on 17 January 2020.
This crowdfunder is not concerned with this tribunal hearing but with a wider planned challenge to the Housing (Scotland) Act 1988 on the grounds that in the circumstances of this case, the legislation violates Colin Brown’s human rights under the European Convention on Human Rights (Article 8 Right to Respect for Private and Family Life and Article 1 of Protocol 1 Protection of Property).
We believe that it may not be proportionate under Article 8 to evict a tenant who is 67 years old and has lived in his home for over 27 years. We believe that it may violate Colin’s rights under Article 1 of Protocol 1 as it may be disproportionate to remove his property rights (the 27 year tenancy) in favour of a corporate landlord who by definition cannot e.g. live in the property.
Why does this matter?
This case clearly matters for Colin Brown but it could also be of wider significance to the 15% of the Scottish population who live in the private rented sector. We believe that there are elements of private tenancy law that do not adequately uphold the human right to a home, to a private and family life and to possessions because it is too easy in too many cases to evict a tenant at short notice.
What do we propose to do?
We propose to obtain an Urgent Opinion by a leading Advocate as to the likely grounds and chances of success of this action. We have already secured pro bono advice from a leading academic authority in the field of ECHR.
How much we are raising and why?
We propose to raise £10,000 to secure this Opinion and to review the options open to use once it has been given. if we then decide to proceed to litigation, we will launch a new and separate crowdfunder.
This is about the worst time of year to ask anyone to donate money but Colin faces eviction and too many other private tenants live insecure lives. Thank you for whatever support you are able to provide.
Over the past few months I have been assisting a constituent to resist a Notice to Quit served on him to evict him from his home. I have set a Crowdfunder up to raise funds to pursue a legal case on human rights grounds to halt the eviction of 67 year-old Colin Brown from his home of 27 years in Leith, Edinburgh.
Colin’s landlord is a company called Express Investment Company Ltd. The company owned 29 residential properties as at March 2018 and is disposing of all of them. In the case of eleven tenants who have secure tenancies, their homes have been sold with the sitting tenants remaining in their homes. Notices to Quit on the remaining properties have been served and the tenants have left. Colin Brown is the last remaining tenant. He is challenging his eviction in the First Tier Tribunal at a hearing on 17 January 2020.
This crowdfunder is not concerned with this tribunal hearing but with a wider planned challenge to the Housing (Scotland) Act 1988 on the grounds that in the circumstances of this case, the legislation violates Colin Brown’s human rights under the European Convention on Human Rights (Article 8 Right to Respect for Private and Family Life and Article 1 of Protocol 1 Protection of Property).
We believe that it may not be proportionate under Article 8 to evict a tenant who is 67 years old and has lived in his home for over 27 years. We believe that it may violate Colin’s rights under Article 1 of Protocol 1 as it may be disproportionate to remove his property rights (the 27 year tenancy) in favour of a corporate landlord who by definition cannot e.g. live in the property.
Why does this matter?
This case clearly matters for Colin Brown but it could also be of wider significance to the 15% of the Scottish population who live in the private rented sector. We believe that there are elements of private tenancy law that do not adequately uphold the human right to a home, to a private and family life and to possessions because it is too easy in too many cases to evict a tenant at short notice.
What do we propose to do?
We propose to obtain an Urgent Opinion by a leading Advocate as to the likely grounds and chances of success of this action. We have already secured pro bono advice from a leading academic authority in the field of ECHR.
How much we are raising and why?
We propose to raise £10,000 to secure this Opinion and to review the options open to use once it has been given. if we then decide to proceed to litigation, we will launch a new and separate crowdfunder.
This is about the worst time of year to ask anyone to donate money but Colin faces eviction and too many other private tenants live insecure lives. Thank you for whatever support you are able to provide.
Over the past few months I have been assisting a constituent to resist a Notice to Quit served on him to evict him from his home. I have set a Crowdfunder up to raise funds to pursue a legal case on human rights grounds to halt the eviction of 67 year-old Colin Brown from his home of 27 years in Leith, Edinburgh.