My Lords, I first associate myself with the excellent speech of my noble friend Lord Kennedy, who put the case extremely well. Perhaps it would be helpful if I provided some of the legal underpinnings of why this is an issue that requires plugging. In that regard, I would also like to offer my deepest thanks to the distinguished leading counsel, Richard Matthews, who has provided us with a lot of excellent legal advice on the underpinnings of this. When I spoke about him in the last session, I may well have done him a disservice by talking only about his skills in fire and health and safety matters and underplaying his overall exceptional status as a well-regarded QC in all matters of regulation and criminal defence relating to businesses. His advice has been extremely helpful and I hope that the Government have had time to reflect on what it means and the implications of it.
Case law, frankly, is clear about the Government’s assumption that a private dwelling ceases to be one under a short-term let and that, therefore, this is covered by the fire safety order. The Government have made a number of statements on this in the House and have published guidance, Do Y ou H ave P aying G uests?, in this regard. In Do Y ou H ave P aying G uests? the Government’s position is expressed: when anyone pays to stay in your property, other than to live there as a permanent home, the property is not a premises occupied as a private dwelling.
Such guidance is not capable of establishing, as a matter of law, that whenever anyone pays to stay in a property, other than to live there as a permanent home, the property is not a premises occupied by someone as a private dwelling. Furthermore, such guidance is not capable of creating a duty in law extending the operation of the articles of the fire safety order to all such premises where anyone pays to stay in this way; nor is it capable of amending the definition of “domestic premises” in the fire safety order to incorporate the definition of what apparently makes premises temporarily no longer domestic premises.
This point is strongly embedded in existing case law. Looking at, in particular, the elements related to definitions of “private dwelling”, “occupation” and “occupier”, it would be worth making noble Lords aware that case law, in the case of private dwelling, is recent and relevant. There have been a number of landmark cases, including Caradon District Council v Paton, which had some very emphatic judgments expressed by Lord Justice Latham and Lord Justice Clarke. In relation to the occupation and occupier elements, the Court of Appeal judgment by Lord Justice Lewison in Cornerstone Telecommunications Infra- structure Ltd v Compton Beauchamp Estates Ltd in 2019 is of course highly relevant.
What these case law examples identify is that the following considerations come from those points. First, particularly in regard to land and property, occupation can be simultaneous with another occupier and does not require either a continuing or exclusive physical presence. While a contract is not wholly determinative, the fact that a licence to occupy is limited and preserves extensive power of re-entry for the host, coupled with the temporary limitations of the licence, means that the host, particularly if, at other times, they are in occupation of the premises as a private residence, continues to be in legal occupation of the premises as a private dwelling during the period of the limited licence of the guest.
Therefore, of course, this, along with other considerations that come from those case law examples, demonstrates that there is a clear gap in the law. Whatever the intention of the Government to ensure that such short-term lets come under the fire safety order, in law, specifically definitionally and under case law, they do not; that obligation is simply not there. So this amendment plugs that gap, and I hope that the Government are highly sympathetic to it and more than willing to consider how they may integrate this into the Bill.
Finally, another matter raised previously, which is not part of this amendment but does not fit neatly into this Bill, is that there should be some consideration of other elements that are missing in law, which again seem to be omissions due to the nature of the short-term letting business. One of those relates to smoke and carbon monoxide detectors, which fall under the Smoke and Carbon Monoxide Alarm (England) Regulations 2015. These specifically talk about the objective that landlords in the private rented sector in England should ensure that a smoke alarm is installed on every storey of a rented dwelling when it is occupied under a tenancy and that a carbon monoxide alarm is equipped in any room that contains a solid, fuel-burning combustion appliance. They also require landlords to ensure that such alarms are in proper working order at the start of a new tenancy.
Because short-term lets fall outside this definition, there is no obligation to ensure either that there are such smoke and carbon monoxide alarms or that they are working. To verify this, during the course of the week I went on to a site and found adverts for short-term lets of a number of properties that ordinarily should, even for building regulations or insurance purposes, have such things, which were explicit in saying that they did not have these devices. Therefore, it is very clear that in operating the law this is a clear error. This is not what the intention was, but this is another definitional problem. I do hope that the Government will be forthcoming in looking to clear up these clear gaps.