Holiday lets vs assured shorthold tenancies

Airbnb has emerged in recent years as a market leader for short-term holiday lettings, but with long-term rental options now at a scarcity, tenants are looking to platforms such as Airbnb to fill the gap. Airbnb now even provides a feature which allows guests to book monthly rentals. The questions that arise from this are: Can Airbnb guests who stay for increasingly long periods claim rights similar to those of tenants? What protections, if any, do guests have from eviction, and what standard of care is owed to them by their hosts?   The legal position of Airbnb guests Generally, guests on short-term lets have the right to stay for the duration of the agreement only. There is no legal right to stay beyond that period, and the host can therefore “evict” the guest at the end of the agreement. The host need not serve notice. Holiday lets are specifically excluded from the rights and protections of the Housing Act 1988. This means that guests booking short-term holiday lets will not be able to obtain security of tenure so cannot extend their stay beyond the original booking. Furthermore, guests occupying properties for the purposes of a “holiday only” will not ordinarily obtain any protection under the Protection from Eviction Act 1977. The 1977 Act includes protections from harassment, whereby if a landlord undertakes acts calculated to interfere with the peace or comfort of an occupier or persistently withholds services reasonably required for the occupation as a residence, they shall be guilty of an offence.  However, with Airbnb guests staying for longer periods, and following a rise in remote working, the question of what is a “holiday only” has become difficult to answer. Case law defines a “holiday” as a period of cessation of work, or a period of recreation. This raises the question of whether guests who take their work laptop to respond to emails can claim they were not using the property as a “holiday only” to obtain protection under the 1977 Act. In a recent case brought against an Airbnb landlord in the Mayor’s and City of London Court, it was ruled that a letting on Airbnb amounted to an assured shorthold tenancy giving protection to the guests that were harassed.  Here, the guests were repeatedly chased for payment of rent and had the power, heating and internet connection switched off. The host argued that the guests were conferred limited rights as it was a holiday rental. Ruling in favour of the guests, the judge held that the stay had gone beyond an Airbnb holiday let, becoming an AST which gave them additional protections. A key factor was the length of the stay; the property was being used as the principal home for a substantial period, so the letting was construed as an AST. While the ordinary position is that guests have limited rights, the facts on the ground can lead to a different outcome if the rental has gone beyond an ordinary holiday let.  Airbnb restrictions Current regulations require planning permission for the change of use from residential premises to temporary sleeping accommodation for short-term rentals. However, the Deregulation Act 2015 introduced an exemption that allows hosts to let properties in Greater London for 90 nights per year (which can be either consecutive or over the whole calendar year) without having to apply for planning permission.  Airbnb has introduced a system by which listings in Greater London are limited to 90 nights per calendar year, so hosts will not be able to receive bookings unless they certify that they have relevant permissions to share the property beyond this. Scotland has specific restrictions too. Hosts must obtain a licence to use a property for short-term letting before accepting any bookings. According to Airbnb, “hosts with listings operating before 1 October will need to make an application for a licence to the relevant local authority by 1 October 2023 in order to continue operating”. In Northern Ireland, a certificate is required from Tourism NI in order to provide tourist accommodation. Similar regulations are in place in Guernsey, the Isle of Man and Jersey. Safety standards  Hosts on Airbnb owe their guests a duty to make sure they are safe throughout their stay and that the property is fit for occupation. It is a legal requirement for hosts to have a fire risk assessment and a gas safety record when providing holiday lets in England and Wales.  There is, however, a slight difference between the regulations for buy-to-let landlords and holiday rental hosts, as the fire risk assessment for landlords is needed for the shared communal areas and the building, rather than just the property itself. The Regulatory Reform (Fire Safety) Order 2005, however, imposes requirements on responsible owners to ensure the safety of high rises, meaning hosts are subject to similar standards as landlords.  Hosts owe a duty of care to ensure that there are no faulty electrics in the accommodation. Since 1 April 2021, all private rental landlords must have a valid electrical installation condition report, but for Airbnb hosts there is no specific requirement for this (though it is a legal requirement that all electrical appliances are safe and properly maintained).  It is also not a legal requirement for hosts to undertake portable appliance tests, meaning there is a slight divergence in responsibilities for landlords and Airbnb hosts, but that overall guests have adequate protections.  Nick Thomson is a solicitor at Wedlake Bell Photo © Nikolas Kokovlis/NurPhoto/Shutterstock