The Upper Tribunal (UT) recently considered whether the Letting Agent Code of Practice (“the Code”) applies in respect of short-terms lets.
The background
A landlord instructed a letting agent to let her flat for a period over summer 2022. A dispute arose resulting in the landlord making an application to the FTT alleging that the letting agent had breached the Code.
The letting agent maintained that the Code did not apply to its work in relation to the short-term let of the property over summer 2022 and as such the FTT did not have jurisdiction to consider the application.
The FTT rejected the letting agent’s argument holding that the Code applies to every entity carrying out letting agency work in Scotland, irrespective of the type of let.
The appeal
The letting agent appealed. The sheriff indicated that the starting point is to determine whether the letting agent was engaged in letting agency work when acting on behalf of the landlord as defined under s.61 of the Housing (Scotland) Act 2014. The UT determined that the FTT failed to make findings in fact in order to apply the aforementioned test.
Crucially, the UT considered “if a letting agent has been involved in arranging accommodation used as a holiday let or as a short-term let, the Code of Practice does not apply to that letting agent’s work in arranging the let, even though they have, in the ordinary sense of the words, acted as a letting agent.”
This is because while a person might ordinarily be ‘occupying’ a property by a lease or occupancy agreement, there are particular types of occupancy which are excluded from the definition of “using the house as a dwelling.” In particular, where “a house is being used for holiday accommodation” and where the house is being used as a short-term let.
The UT upheld the appeal and remitted the case back to the FTT for a further hearing scheduled for 23rd April 2024.
