Cost of Living Act judicial review hearing

The Scottish Association of Landlords (SAL), along with coalition partners Propertymark and Scottish Land and Estates, has mounted a legal challenge to the Cost of Living (Tenant Protection) (Scotland) Act 2022. This is the legislation which introduced the rent freeze and eviction moratorium in September 2022 and has recently been amended to place a cap of 3% on most private rented sector (PRS) rent increases.

The judicial review application seeks to argue that the Act is unlawful because it breaches the rights of property owners under the European Convention on Human Rights (ECHR), which UK lawmakers are still required to comply with post-Brexit. To be successful in the legal challenge the coalition’s legal team must convince the court that the legislation breaches landlords’ rights under the ECHR to peaceful enjoyment of their possessions (property) and to not be discriminated against.

On 4 May 2023 the court hearing took place at the Court of Session in Edinburgh, presided over by the Hon. Lord Harrower.

Lord Neil Davidson KC gave evidence on behalf of SAL and the other coalition partners. He argued that private landlords have faced increased costs including, in many cases, significant increases in interest rates, with data obtained by SAL showing monthly repayments on buy to let mortgages increasing by an average of 70% in the past 12 months.

He suggested that the claim the 2022 Act is temporary is illusory in that the loss of income to landlords is permanent.

He went on to say that the Act is inherently unfair as it forces landlords to shield their tenants from rising costs as well as bear their own rising costs, irrespective of the landlord’s own financial position.

Lord Davidson further argued that in treating social sector landlords differently from private sector landlords the Scottish Government’s legislation illegitimately discriminates against landlords in the PRS. The rent cap has now been lifted for social sector landlords but private sector landlords are in most cases restricted to 3% increases until at least September 2023.

Responding on behalf of the Scottish Government, James Mure KC stated that the measures in the Act were “modest, time-limited restrictions” on the ability of landlords to increase rent and evict tenants. He argued that the Act’s objective of providing support and protection to tenants during the cost of living crisis is sufficiently important having regard to the position of tenants as a class to justify the limitation of landlords’ rights.

He further argued that while landlords have the right to seek a profit, they do not have the right to make a profit. He stated that there is some element of risk involved with being a landlord and profit is not guaranteed, telling the court “All of them are involved in a commercial venture with some risk.”

Please note that the above is a brief summary covering some aspects each party’s case. It doesn’t include every point of argument raised during the full day session in the court and in lengthy written submissions made prior to the hearing date.

We now await Lord Harrower’s written decision on the case which is likely to be issued in around 6-8 weeks’ time.

Funding the legal challenge

None of the three organisations involved in this case have the resources to challenge the Scottish Government alone. Bringing a judicial review is expensive, with the initial review likely to cost more than £60,000 in legal costs and court fees.

We need help to fund the cost of this action, and are calling on individuals and businesses working in the PRS to offer their financial support as we challenge this legislation. We have set up a crowdfunding page at for those who are able to make a financial contribution to the case. Please do share this link with anyone you know who isn’t a member of SAL and might be interested in contributing.

Thank you for your support.

If you are not yet a member of SAL, please join SAL today to stand together and make your voice heard.

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