Challenging unlawful whole-home short-term lets in Edinburgh

We are very thankful to @KirstyH11 for sharing her notes on how to challenge unlawful whole-home AirBnBs in your buildings and communities using the planning framework and conditions in your title deeds.

 

Planning Permission

  • “Letting on short term basis to visitors – planning permission required because material change of use from residential occupation“- Neil Collar, Senior Partner, Brodies Edinburgh LLP.
  • “In cases of short term commercial leisure apartments, the Council will not normally grant planning permission in flatted properties where the potential adverse impact on residential amenity is greatest” – Edinburgh City Council Guidance for Businesses
  • The Planning Department regularly turns down applications for holiday lets in flatted and non-flatted properties due to impact on neighbour amenity. Applications can be seen at the on-line planning portal.
  • Edinburgh City Council is serving increasing numbers of enforcement notices for unauthorised changes of use. The process is slow, very expensive to the council and often reliant on evidence supplied by neighbours.
  • If business owners are unwilling to seek planning permission, neighbours can report the possible breach.

 

Title Deeds

  • Most properties have title deeds which restrict the use of the property to a “private residence”. Many will specifically prohibit commercial use, multiple occupation, hotels and hostels, and nuisance.
  • Landmark cases: Nemcova v Fairfield Rents Ltd [2016] and Flat A, 20 Nottingham Place, Westminster [2016] concluded that AirBnB-style short-term lets breached clauses relating to: private residence, nuisance and annoyance; depreciation of the character and reputation of the property; voiding communal insurances.
  • Anyone with restrictions who wishes to use their property as a commercial short-term let should apply to the Scottish Lands Tribunal for the title to be varied. An application is £125.
  • If neighbours want to obtain an interdict against a neighbour who is in breach of their title deeds they will need to raise an action with the Sheriff Court. This will cost in the region of £15-25k. That said, if the action was successful, expenses are likely to be awarded which would cover much of these fees.
  • Most home insurance policies include legal expenses insurance covering title deed breaches. Until there is a test case in Scotland, insurers are unlikely to be take these on.
  • Crowdfunding a test case is being increasingly discussed as an action to protect communities by giving access to residents to legal expenses insurance.
  • Examples of evidence useful for future legal or planning enforcement action include: letters to business owners raising concerns (it is useful to formally request the business seeks Planning and Lands permission); diary recording the number of lets and issues; screenshots from letting sites corroborating level of letting to reviews; reports of antisocial behaviour reported to the Community Safety Team or Police.

 

Actions by Edinburgh City Council / Scottish Government

  • Motions concerning short-term letting were debated in Parliament in November 2017 and Edinburgh City Council in December and February 2017. All motions received cross party support.
  • The #HomesFirst campaign highlights many of the issues associated with short-term letting in Edinburgh and other locations. It includes useful links and testimony from families living close to short-term lets.
  • The Scottish Expert Advisory Panel on the Collaborative Economy suggests the implementation of a 90 day restriction on any person wanting to rent their home/property over the course of a 12 month period.
  • 90 days of letting represents an occupancy of 60% over 5 months (average hotel room occupancy in Scotland is 71%) and will likely still cause material detriment to the peaceful enjoyment of neighbours with shared spaces. Restricting the number of lets, as well as (instead of) the number of days may be a more meaningful and effective method of regulation.

 

Human Rights: Human Lives, A Guide to the Human Rights Act for Public Authorities

  • Article 1 of Protocol 1: Right to peaceful enjoyment of your property – Requires public authorities to strike a fair balance between the general interest and the rights of individual property owners.
  • Article 8: Right to respect for private and family life – Public authorities may also need to consider whether there are situations putting them under obligation to take active steps to promote and protect individuals’ Article 8 rights from systematic interference by third parties, for example, private businesses.
  • The UN Special Rapporteur for Adequate Housing regularly comments on the negative impacts of AirBnB.

 

An amateur interpretation of case law enforcing burdens in Title Deeds

In Scotland it is necessary to prove both “title” (a breach of title deeds), and “interest” (the breach has material detriment to the “value” or “enjoyment” of the property). Guidance on what constitutes “material” detriment is limited. Most legal firms have little experience with STLs and it is important that they are informed of the most recent cases.

 

2016 – ​Nemcova v Fairfield Rents Ltd [2016] UKUT 303 (LC)

  • Landmark case. First to conclude that very short-term lets breaches the “private residence” covenant.
  • “Such a restriction is likely to have significant benefits​ for the lessees of the Building who would, we have no doubt, prefer to live with other owner-occupiers or long term tenants as opposed to those using a flat in the Building on a short term let for, perhaps, only a few days.”

 

2016 – ​Flat A, 20 Nottingham Place, Westminster [2016] EWLVT LON_LV_FFT_00BK_0020

  • Short-term lettings breached five covenants​: use as a private residence; sub-letting; nuisance and annoyance; depreciation of the character and reputation of the property; voiding communal insurances.
  • “the presence of nearby hotels and hostels is a different matter to “constantly” having different unknown people coming in and out of the communal areas​ of a private residential building.”

 

2015, 2016 (appeal) – ​2F5 Eyre Place, Edinburgh, EH3 5EP, Enforcement notice ENA-230-2107

  • Enforcement notice by ECC served for an unauthorised change of use to SSCVA.
  • The short-term​ nature of lets, common access, and layout of the block increasing​ conflict​ between customers and permanent residents are material factors affecting residential amenity.

 

2011 – Kettlewell v Turning Point Scotland 2011 SLT (Sh Ct) 143

  • Material detriment found to value​ (10% reduction) and enjoyment​ (increased traffic and parking issues).

 

2008 – ​Smith v Lawrence LTS/TC/2008/18; 2009 GWD 6-104

  • Rejected an application by a property company to vary a title condition in a Musselburgh home to permit student occupation due lack of control​, and impact on: noise​, traffic​, parking​ and property values​.
  • The immediate effect might increase values as the market is opened to more landlords, longer term the attraction for families may be gradually reduced, with an effect on saleability and values​.
  • Often cited as the most comparable Scottish case to short-term letting. .

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2007, 2008 (appeal) – Barker v Lewis 2007 SLT (Sh Ct) 48; affd 2008 SLT (Sh Ct) 17

  • Unsuccessful interdict against a proprietor operating a B&B from her large detached home.
  • Incidents (smoking, antisocial hours, parking issues, intrusion) on 10% of days​ deemed immaterial.
  • The sheriff indicated that an increase in the level of business by 60% would result in material detriment​.
  • Furthermore, a few more serious incidents​ might well have gone the pursuers’ way.

Malcolm Combe notes the incomparibility of this case in Land law responses to the sharing economy: short-term lets and title conditions: “…Airbnb will not necessarily have the presence of a live-in host that a traditional B&B will have​. Such a presence might bring a certain amount of control ​(not to mention a cooked breakfast) that is not present in a short-term letting of a whole property. As such, even before the less stringent interest to enforce case law is considered, Barker v Lewis might be distinguishable​.”

 

Other notes

  • Context​ – All of the above (but the first three) refer to detached properties, with owners/carers living onsite.
  • Loss of privacy and security -​ Sharing communal spaces and gardens with with hundreds of fee-paying strangers breaches reasonable expectations of privacy and reduces residents’ ability to enjoy these spaces.
  • Change in nature of “holiday” lets​ – Previously “holiday lets” involved families staying a week or two in a detached property on holiday. Now, they involve (unrelated) groups, staying a few days, in residential areas, often flats, as a hotel alternative. This greatly increases the likelihood and impact of disturbances.
  • Maintenance burdens​ – Most tenements are self-managed. Absent commercial operators profit at the expense of residents who voluntarily manage cleaning, gardening, refuse and repairs for shared buildings.
  • No worse than a noisy family?​ – “the risk of a noisy family is one, under the titles, the pursuers are bound to take. They are not bound​ to take the risk of noisy guests in a B&B” – Interest to Enforce Real Burdens.
  • Mental health impacts​ – “If wherever you’re living feels unsafe, uncomfortable or insecure, you might constantly feel stressed, anxious, panicked or depressed.” – MIND
  • Value​ – Estate agents report that sellers are giving instructions not to sell to STLs to protect communities.
  • Voiding insurances​ – Short-term letting will breach the conditions of most mortgage and insurance policies.
  • Business rates​ – Short-term lets are liable for business rates if they are advertised​ for more than 140 days per year.
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