Time to check out: should the 90 day rule be scrapped?

Contacts

Contacts
For more information please contact:

Chris Benham
020 7851 4955
07834 534536
chris.benham@glhearn.com

In 2015 the Deregulation Act amended the law so that property owners could make use of platforms like Air bnb to rent out their properties for short term lets. The law means that a residential property can be let for up to 90 days in a calendar year, beyond which a change of use is deemed to have occurred.

It is reasonable that with residential property under supplied in the UK, particularly in London, planning authorities are able to control the short term letting of homes for tourism purposes. For example, there is growing evidence that increasing numbers of properties are being removed from the private rented sector and used solely for short term visitor accommodation.

It is clear that the laws stipulating a maximum of 90 days occupation are intended to apply only to residential accommodation (Use Class C3), though increasingly it is applied through planning policy to aparthotels (Use Class C1). This, in my view, creates a lack of clarity on the specific characteristics of aparthotels and is an unnecessary restriction.

It is also worth noting that case law relating to hotels (Use Class C1) defines such accommodation as for a ‘transient population’, and length of stay is rarely restricted. As an aparthotel is also Use Class C1, it begs the question: why do we need to impose the 90 day rule on this type of accommodation, when the occupation of hotels has so far been successfully controlled without this?

Part of the issue seems to be the similarities between aparthotels and serviced apartments, whereby the latter might reasonably be subject to the 90 day rule, depending upon the Use Class they trade under. The function of an aparthotel room undoubtedly gives the ability for guests to stay longer, but rarely do guests cease to be ‘transient’.

As the aparthotel sector grows, a level playing field should be created for developers and operators of aparthotels competing with other forms of visitor accommodation. With the GLA predicting that London will need an additional 58,140 serviced accommodation rooms by 2041, including aparthotels, the need to get the terminology right is clear.

One way of achieving this would be to ensure a robust definition of aparthotels exists either in Legislation or the Development Plan. This would ensure that they are considered distinct from other forms of visitor accommodation and are controlled accordingly.

There is no statutory definition of either aparthotel or serviced apartments at present. The Use Classes Order pre-dates the aparthotel concept and does not refer to it. Serviced apartments are typically Sui Generis Use.

The definition of aparthotels set out in the London Plan provides some guidance, as do a handful of Local Development Plans. Invariably definitions lack clarity, refer to defunct guidance, and in some cases confuse the term with serviced apartments.

The new draft London Plan will be submitted for public consultation later this year and GL Hearn will be submitting representations to ask the GLA to include an accurate definition of aparthotels. We will be suggesting:

“hotel accommodation (Use Class C1) that provides for occupancy purchased at a nightly rate with no deposit against damages. Typically the following will apply:

  • larger units than at a standard hotel including mix of studios, one-bedroom and two bedroom suites;
  • In-room kitchenette and bathroom;
  • No minimum or maximum stay but occupied by a transient population;
  • Branded buildings;
  • 24/7 manned reception on site, room telephone connection to the front desk;
  • Additional services on demand;
  • Cleaning services provided daily;
  • Food and beverage offering in property;
  • On-site laundry if not provided in units;
  • On-site guest facilities such as gym, pool and workspace;
  • Telephone and internet provided by operator and included in price;
  • The use will be secured in the form of a licence, not a lease; and
  • The occupants of the room will not have exclusive possession of the room."

When defined in this way, the need for 90 day occupancy restrictions could be avoided, as could some of the other misconceptions directed at the sector. If operated as outlined above aparthotels would be distinct from serviced apartments and residential uses. As with other C1 accommodation, planning conditions can and should be used to control unauthorised change of use, and beyond Greater London this is normally the case.


If you would like to discuss how to make representations to the public consultation on the London Plan, or simply have a view on our suggestions on how to define aparthotels, please get in touch.