Damages

The Cost of Living (Tenant Protection) (Scotland) Act 2022 temporarily increases the Sheriff Court and First-tier Tribunal's powers to set a new minimum and maximum rate of financial compensation for unlawful eviction. Where a tenant is illegally evicted during the lifespan of the Act, the court or tribunal may award a minimum of 3 months' worth of rent and a maximum of 36 months' worth of rent. [1]

Clients wishing to make an application for damages for unlawful eviction should be referred to a specialist housing solicitor.

There is a statutory right to claim damages for being unlawfully evicted under the Housing (Scotland) Act 1988. [2] There is a further right to claim damages under common law, but it should be noted that damages may be not be claimed for the same loss under both statute and common law.

Residential occupiers [3] have the right to claim damages for unlawful eviction, [4] or for harassment that leads to the occupier giving up the occupation of the premises. [5]

'Residential occupier' has the same meaning here as it does in relation to criminal offences and is therefore not limited to tenants. The right to claim damages arises only where the landlord or any other person acting on his behalf carried out the eviction or other action being complained about. [6]

The measure of damages is given in the Housing (Scotland) Act 1988. [7] It is the difference between the value of the landlord's interest in the property with a sitting tenant, and the value of the landlord's interest in the property with vacant possession. Both of these values should be the market value (with or without vacant possession). This means that the damages awarded could be substantial, but they may not always amount to the maximum extra gain that the landlord might hope to get from the development of the property after the eviction of the tenant. [8]

In the only reported Scottish case on damages for unlawful eviction, [9] the sum of £15,000 was awarded under the 1988 Act with a further £86.77 awarded in terms of specific losses named in the action.

The damages may be reduced if the court considers it reasonable in the light of the occupier's conduct prior to the eviction or harassment, or if prior to the raising of proceedings the former occupier unreasonably refused an offer of reinstatement. Where the tenant has obtained alternative accommodation before the offer was made, the damages may be reduced if it would have been unreasonable to have refused the offer had the tenant not obtained other accommodation. [10]

The landlord has a defence to the claim for damages if s/he believed, and had reasonable cause to believe, that the occupier had ceased to reside in the premises at the time s/he was deprived of occupation or, in cases of harassment, if s/he had reasonable grounds for her/his actions. [11]

No liability to pay damages arises if, before the date on which proceedings to enforce liability to pay damages arises, the former occupier is reinstated in the premises, or the sheriff makes an order at the former occupier's request to reinstate him or her. [12] The landlord may therefore avoid liability for damages by reinstating the occupier before an action is brought, or before any legal proceedings brought are concluded.

However, the tenant does have the right to refuse an offer of reinstatement without losing the right to claim full damages if s/he has good reason to do so, such as fear of violence. For example, where a tenant's room is destroyed and the landlord merely hands over a key and invites the tenant to resume occupation, this will not amount to reinstatement. [13]

In addition to the statutory right to claim damages, damages may be claimed for:

• the tenant's actual loss, for example for loss or destruction of possessions. An action for such damages arises out of the law of delict (the English equivalent is tort) that is essentially the law of reparation. If the landlord causes the tenant's loss then s/he has a duty to compensate the tenant for that loss

• solatium: this is compensation for loss, injury and suffering, past present and future.

Nominal damages may be claimed in recognition of, and in compensation for, the breach of contract or lease rather than compensation for any actual loss. In Scotland it is uncommon to find claims for exemplary or punitive damages.