In October 2022, the Scottish Parliament passed the Cost of Living (Tenant Protection) (Scotland) Bill (which has now received royal assent). This bill aims to introduce new measures to protect tenants in the rented sector during the current cost of living crisis and includes a reform of the law on damages for unlawful evictions. 

Under section 37 of the Housing (Scotland) Act 1988, damages for unlawful evictions were calculated as the difference between the landlord’s interest in the property with and without a sitting tenant. This outdated valuation method carries several problems. It often resulted in a nil valuation. Tenants had to pay for a surveyor’s report to value their former tenancy - a burden which presents its own barrier to justice, especially to those ineligible for legal aid.

Legal Services Agency proposed a simplified measure of statutory damages for unlawful evictions: a multiple of the monthly rent payable for the property. This would be at a minimum of six months and a maximum of 36 and would remove the main problems associated with the current approach to valuation, allowing more victims of the crime of unlawful eviction to receive justice. 

The new bill reflects LSA’s proposals, however, we argue that it does not go far enough. The bill contains a minimum threshold of three times the monthly rent which, in our opinion, is too low. As well as this, the bill allows room for discretion for this number to be lowered even further. Although a step in the right direction, we are concerned that the bill may not effectively deter landlords from carrying out unlawful evictions or properly compensate victims. 

We welcome the long overdue change to quantifying damages awards in unlawful eviction cases. Moving from the old approach (which relied on property valuations) to a multiple of monthly rent should make it much easier for victims of unlawful evictions to access justice, and for landlords to be held to account after an unlawful eviction has occurred. We recommended this change in our 2020 report. 

However, we have some concerns about the new law. The minimum level of damages is stated in the bill as being three times the monthly rent. The bill also states that damages awards can be reduced below three months’ rent if the Court or First Tier Tribunal, ‘considers it appropriate to do so having regard to all the circumstances of the case.’ There is effectively no minimum damages award. 

Unlawful evictions ruin tenants’ lives. Our report recommended a minimum damages award of six months’ rent for that reason. Three months’ rent represents a watered-down version of our proposal – and anything below that is positively homeopathic. 

We understand that the law is due to expire in April 2023. We look forward to engaging with the Scottish Government to ensure that the law is strengthened.

LSA continues to act on behalf of victims of unlawful eviction, and we support a further reform of the law to better reflect the impact of unlawful evictions on victims and deter them from happening in the first place.