Landlords are licking their wounds after a Judge yesterday ruled against a Judicial Review of former Chancellor George Osborne’s capping of the amount of mortgage interest that they can offset against tax.
It means that landlords Steve Bolton and Chris Cooper have lost their legal challenge to overturn a measure announced in a Budget.
Yesterday the pair – thought to be unlikely to appeal the ruling – said they were “outraged” by the decision, which is likely to have consequences for letting agents if, as predicted, landlords desert the market or put rents up.
Bolton and Cooper also said that although their legal challenge – crowd-funded to the tune of over £180,000 – has run its course, they will not give up their fight.
Without a Judicial Review or any government U-turn, the process of capping the amount to 20% will be phased in from next April as planned.
Bolton and Cooper argue that it means that most landlords will pay extra tax of 20% or more on their mortgage interest. They warn that the tax landlords pay might be bigger than their real profit, leaving them with losses.
They also warn that the only people who will suffer will be tenants, because landlords who stay in the market will have little choice but to raise rents.
Anecdotally, a number of landlords are already selling up ahead of the implementation of Section 24 of the Finance (No 2) Act 2015.
Yesterday’s hearing was at the Royal Courts of Justice in London where Bolton and Cooper were represented by Omnia Strategy, led by Cherie Booth, whose own family property portfolio is thought to include at least ten houses and 27 flats.
Her legal team argued that Section 24 is unlawful on the basis that the restriction on landlords’ ability to deduct finance costs as a business expense may constitute an unlawful grant of State aid to corporate landlords and owners of commercially let holiday homes and may also breach the European Convention on Human Rights.
In court, she was initially applauded from the public gallery when she said the Government was unfairly penalising individual buy-to-let landlords by “singling them out” for detrimental tax treatment while allowing others to keep their tax perks.
But Timothy Brennan QC, representing HM Revenue & Customs and the Treasury, said the claim was unarguable, adding: “There are cases which justify the courts looking at them in the public interest. This is not one of them.”
Booth said yesterday after the r uling: “The Court’s decision that our clients’ legal challenge should not proceed is very disappointing. Steve and Chris, and many others, have dedicated a lot of time and energy into putting forward the best case possible.
“We know the case has been supported and followed with interest by a large number of individual landlords. Many of these landlords now face challenging times ahead.
“From the outset, the legal process was just one aspect of our clients’ fight against this unfair measure.
“Together with their impressive and growing coalition, they will continue to engage with the Government, and the legal team wishes them every success.”
Supporters included landlord bodies and the Belvoir franchise chain. However, despite the support, many thought that the legal action against something that had been announced in a Budget stood no chance.
Richard Lambert, chief executive of the National Landlords Association, said: “This decision is ultimately disappointing not just for landlords, but for the tenants who will see their rents rise as a consequence of the changes to landlord taxation.
“While we have never been convinced that there was a solid enough legal case to overturn George Osborne’s decision, we hoped the Courts would be prepared at least to listen to the arguments.
“We congratulate Steve, Chris and the campaign team on their determination, perseverance, and their success in raising awareness and increasing the visibility and understanding of what will be a dramatic change to the ability of hard-working people to provide homes for others.”
In a joint statement, losing protagonists Bolton and Cooper said: “We are outraged by the Court’s decision. It has completely missed the opportunity to protect tenants, landlords and the housing market from the disastrous consequences of Section 24.
“From April 2017 the negative impact of this previously failed tax experiment from Ireland, where rents increased by 50% over a three-year period, will be felt far and wide.
“Sadly it will be tenants who are hit hardest; they are set to see unprecedented rent increases over the coming months and years, which will be a very clear and direct consequence of this ludicrous legislation.
“For many, it will also mean the loss of their homes because vast numbers of landlords will be forced to exit the market.
“Hard-working, responsible landlords will have their pension plans in ruins, but the large corporations and the wealthiest in society, who can buy property without the need for mortgage finance, are systematically excluded from this unfair tax policy.
“Now that the legal route has run its course, we will be focusing 100% of our attention and resources on taking our case more forcefully, more powerfully and more directly, right to the heart of Government.
“Our goal is simple: to abolish this tax or to remove the retrospective nature of it.
“We will be launching a range of lobbying, media and grassroots activism measures over the coming days and weeks. We will also be encouraging all of our landlords to write to their tenants if they have to increase their rents or sell up, clearly explaining that it is this Conservative tax policy that has forced them into this situation.”
David Smith, policy director for the Residential Landlords Association, said: “Having provided support for this case, the RLA is disappointed it will not progress to a full Judicial Review.
“The campaign to seek changes that will address the more difficult aspects of recent tax reforms to the private rented sector must now focus on a political path.
“The Autumn Statement next month provides an important opportunity for the Government to make changes that will support the development of the new homes to rent the country desperately needs.
“The RLA has already met with Treasury officials to discuss the issue and it will continue to lobby for changes that are good for tenants and landlords, whilst recognising the Government’s limited financial room for manoeuvre.”