A short term let operator may be liable for any accidents or injuries sustained by guests or visitors while their property is being let – so it's important that those operators understand their duties and the potential consequences of failing to comply.
There is currently no statutory definition of what constitutes a short term let in Scotland, but for the purposes of this article, let's look at the situation for a ‘host’ who provides short term accommodation such as a holiday let, with no agency involvement.
Who is liable?
Under the Occupiers’ Liability (Scotland) Act 1960, occupiers of a property have to take reasonable care for persons who come onto their property. An occupier is the person with ‘control’ of the property- i.e. the owner, tenant, landlord or a combination, as there can be more than one occupier of a property.
Occupiers are only liable for accidents that occurred because of a hazard “due to the state of the premises or to anything done or omitted to be done on them”. It must also be shown that the occupier knew, or ought to have known, about the hazard. Showing reasonable care is expected, but there is no absolute duty to ensure a guest’s safety while using the property. Similarly, an occupier cannot be held liable in relation to obvious hazards.
A host, as a service provider, has a common law duty to take reasonable care of their guests while at the property. Failing to do that is a breach of common law, so hosts should ensure that they make every reasonable effort to prevent guests from injuring themselves, by identifying and minimising risks. The onus would then be on the injured party to establish that the host’s breach of that duty caused their injury, on the balance of probabilities.
When it comes to letting out property, include clear and concise terms and conditions in your rental agreement, setting out the host's – and the guest's - responsibilities. Their rights and responsibilities in terms of contract law will depend on the ‘occupation’ of the guest. The agreement should also communicate that the host is offering a short term let for holiday purposes only.
In Scotland any contract term looking to exclude or restrict liability for death or personal injury resulting from negligence is void, which essentially means that liability arising from negligence for this still stands, regardless of the terms of any agreement in place.
What safety checks should I undertake?
Short term lets sit outwith the standard regulatory framework of the private rented sector. If the let is for less than 31 days, you don't have to comply with the repairing standard, which covers the legal and contractual duties of private landlords to ensure that a property meets a minimum standard of repair. However, hosts still have legal obligations to ensure the property is safe.
1. Fire safety and risk assessment
The Fire (Scotland) Act 2005 applies to holiday lets and the Scottish Government has provided guidance for such premises. In short, fire safety law requires any person who has control of the property to carry out an assessment to identify the risks to safety in respect of harm caused by fire, improve fire safety measures (as a result of issues highlighted in the assessment), and to keep risks under review.
You should ensure all fire precautions, for example smoke alarms and fire extinguishers, are in good working order and that fire escape routes are identified and free from obstacles.
2. Gas and carbon monoxide safety
Landlords, owners of holiday homes and those who let rooms in their building have to comply with the Gas Safety (Installation and Use) Regulations 1998. These require you to have a valid, official gas safety certificate, prepared by a Gas Safe registered engineer, that records the condition of all gas appliances at the property. This must be renewed every 12 months.
Under the regulations, those operating a short term let (of less than 28 days) should display the gas safety record in a prominent position within the property. In the case of a room rental, where there is no relevant gas appliance within that space, ensure that the certificate is displayed in a prominent position within the property.
It's also advisable to have a carbon monoxide warning system in place, particularly in rooms most used by guests or where there is a fuel burning appliance. If gas appliances are unsafe, this could lead to an increased risk of fire, explosion or carbon monoxide poisoning. For more information on your responsibility for gas safety, visit the Health and Safety Executive.
3. Electrical safety checks
If electrical systems or appliances are unsafe, there is risk of electric shocks, burns and fires, so it's important that all equipment within the property - both installed and portable appliances - is safe and in good working order.
Carrying out an appropriate risk assessment of electrical appliances will identify possible danger signs, such as exposed wires, burned or molten plastic covers or power sockets that spark. Any risks identified can then be minimised; for example, making sure cables don’t run under carpets, sockets are not overloaded, extension cables are not coiled up and mains powered electrical equipment is not used in the bathroom. Consider, where necessary, providing instructions for the safe operation of equipment.
In addition to regular visual checks, appliances and electrics should be checked and serviced regularly by a NICEIC or SELECT registered electrician, who will produce an electrical safety certificate - proof that an inspection has been carried out.
4. Furniture and furnishings
Any upholstered furnishings within the property should be fire resistant. The Furniture and Furnishings (Fire) (Safety) Regulations 1988 provide strict rules about fire resistant furniture for rental accommodation. This applies to items such as beds, headboards, mattresses, futons and sofa beds, children’s or nursery furniture and garden furniture. Some items are exempt, such as sleeping bags and bedding, carpets and curtains, and furniture made before 1950.
To comply, ensure that upholstered articles are filled with fire resistant material and pass both the match resistant and cigarette resistant test. Permanent labels showing compliance should also be fixed to items of furniture. Items that don't comply with the regulations should be removed from the property.
What happens if I don’t comply?
Failure to comply with health and safety legislation could lead to criminal prosecution resulting in a fine or, in the most serious of cases, imprisonment.
Breaching your common law or occupier's liability duties of care to your guests can also lead to a civil claim for damages. The value of any compensation claim will depend on the injury sustained.
What insurance cover do I need?
Having appropriate insurance cover in place is critical - generally, home insurance policies are not sufficient. It's worth speaking to an insurance broker to confirm the extent of cover you require. The types of insurance to consider having in place are:
- public liability insurance, to cover injury or damage to a guest or visitor at your property, and damage caused by guests; and
- if you engage anyone as an employee (e.g. cleaner or gardener), employers' liability insurance is required by law to cover injuries sustained by employees in the course of their employment.