Scotland's landlords, letting agents and sporting estates have joined forces to take legal action over the Scottish Government's rent freeze and eviction ban.

The rent freeze was first announced by Nicola Sturgeon on September 6 as part of "the centrepiece" of the 2022-23 Programme for Government (PfG) and one strand of a series of measures to protect private and social tenants from the cost of living crisis.

Emergency legislation been introduced to freeze rents until the end of March while there is a six month moratorium on evictions. Tenants' Rights minister Patrick Harvie has said  the move was an "emergency response" to the cost of living crisis.

Four groups representing landlords and letting agents have now instructed a top King's Counsel to consider whether the ban breaches their rights.

The Scottish Association of Landlords (SAL), Propertymark, the National Residential Landlords Association (NRLA) and Scottish Land and Estates (SLE) have created the coalition to fight the Scottish Government action.

The Scottish Government’s Cost of Living (Tenant Protection) Scotland Bill  was approved by Holyrood on October 6  by 89 to 27 votes.

There have been concerns that the SNP and Green MSPs had chosen to "ram this Bill through" in only three days this week for "cheap political headlines at the expense of actual solutions".

The coalition has instructed the Lord (Neil) Davidson of Glen Clova KC, Advocate at Axiom Advocates, to examine if the legislation breaches the individual rights of landlords in Scotland, including a breach of the European Convention on Human Rights.  

SAL and the coalition has said it will "consider all legal options available to them" if Lord Davidson’s opinion makes clear a breach of landlords’ rights has occurred. His decision is due within the next month.

Ministers have been accused of exacerbating a housing crisis "they have created" by failing to encourage enough investment in building homes and warned the rent freeze would deter construction.

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Laws under the European Convention on Human Rights, states that everyone "is entitled to the peaceful enjoyment of his possessions".

Landlord groups have raised concerns about the legislation being introduced with insufficient evidence or consultation and warn it could affect how properties are used.

John Blackwood, SAL chief executive said: “With a heavy heart, SAL, in partnership with SLE, the NRLA, and Propertymark is taking legal counsel about the Scottish Government’s rent freeze and eviction ban legislation.”

“Seeking a legal opinion has been our last resort because our concerns are not being listened to by the Scottish Government.”

“This emergency legislation is high-minded in spirit but lacking in the kind of detail landlords need assurance about. Uncertainty for landlords only creates ambiguity for tenants, and I do not think the government appreciates the level of confusion it has now created.”

“We have repeatedly said we are all willing to work with the Scottish Government and ministers. This is a tough time, but that does not excuse ill-designed legislation that may be the final straw for the private rented sector.”

“We are gravely concerned that in a bid to do something to help tenants, the Scottish Government have forgotten the underlying stresses in the PRS that we have been warning about for years.”

It comes as rent arrears hit a record £169.63m.

There are estimated to be 2.6m homes in Scotland with nearly a quarter being social rented properties and 15% being leased privately. Social sector landlords are councils or housing associations who tend to provide lower cost accommodation.

The level of arrears for 2021/22 is at 6.3% of all rent due - the highest since the Scottish Social Housing Charter was introduced by the Housing (Scotland) Act 2010 and came into force in April 2012.

The charter set out the standards and outcomes that all social landlords should be aiming to achieve for their customers when performing their housing activities.

The 2021/22 findings from the survey of the National Panel of Tenants and Service Users found that 28% of tenants that responded have experienced difficulties affording their rent and other housing costs up from the previous year.

More than 9 in 10 respondents identified energy and food costs as to the fore in terms of increased cost of living, and just over 7 in 10 were concerned about future affordability of their rent.

Sarah-Jane Laing, chief executive of Scottish Land & Estates, which represents some of the largest providers of housing in rural Scotland, said: “Mr [Patrick] Harvie repeatedly claimed that the Bill achieves the balance between tenants’ and landlords’ rights to ensure legislative competence, but we do not share his views.”

“The acute shortage of properties available for rent in rural Scotland is stark and such legislation will only exacerbate the situation – to the detriment of the rural economy and communities.”

The bill was fast-tracked through the Scottish Parliament's scrutiny process by tenants' rights minister Patrick Harvie and can be extended over two further six-month periods.

Nathan Emerson, chief executive of Propertymark added: “The concern we hold over this new legislation is the lack of evidence and rushed consultation before large decisions are being made that will significantly impact the use and ownership of property.”

“Landlords and agents alike have proven their ability over the pandemic to work with tenants, many landlords have kept their rents lower in a bid to help but it must be acknowledged that their costs are rising too. This legislation is huge for the sector and the impact on those providing much needed homes must not be underestimated.”