Modification to Damages for Unlawful Eviction Introduced by COLA
Landlords will likely be aware that the Cost of Living (Tenant Protection) (Scotland) Act 2022 (COLA 2022) introduced an eviction moratorium. Perhaps less publicised was the introduction of a new method of calculation of the level of damages which can be awarded against a landlord who seeks to end a tenancy without following due process.
Unlawful eviction occurs if a landlord unlawfully deprives a tenant of occupation of any part of the let property, or interferes with the peace or comfort of the tenant, or withdraws or withholds services reasonably required for occupation of the property. Tenants who experience such unlawful eviction may seek damages for the losses that they have suffered.
At common law, this can include claims in relation to physical losses (such as loss or destruction of their personal belongings), as well as claims for any emotional pain and suffering, known as solatium.
Alternatively, statutory damages may be sought under the Housing (Scotland) Act 1988. Recent changes introduced by the COLA 2022 have changed the way in which damages are now calculated.
The past position
Prior to October 2022, statutory damages were calculated based on the difference between the value of the landlord’s interest in the property with and without a sitting tenant. These values related to market value and valuations were carried out by an independent surveyor.
The present position
From October 2022, COLA has temporarily replaced the basis for the assessment of damages. The award will now have a new minimum and maximum level of financial compensation.
Where a tenant has been unlawfully evicted after 28 October 2022, the First-tier Tribunal can award a minimum of three months’ rent and a maximum of 36 months’ rent in respect of damages. The sums may therefore be substantial.
The Scottish Government has commented that the changes should make it more meaningful for tenants to challenge unlawful eviction.
The risk of substantial penalty should deter any landlords who may consider attempts to remove tenants without due legal process.
Although this is currently a temporary change and is due to expire at the same time as COLA on 30th September 2023, it remains to be seen whether the Scottish Government will look to enforce the new basis for the assessment of damages permanently.
If you require specific advice on evicting a tenant, please contact our PRS team.
