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Bankruptcy and Diligence etc. (Scotland) Act 2007

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Bankruptcy and Diligence etc. (Scotland) Act 2007

2007 asp 3

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 30th November 2006 and received Royal Assent on 15th January 2007

An Act of the Scottish Parliament to amend the law of sequestration and personal insolvency; to amend the law about floating charges; to establish a Scottish Civil Enforcement Commission and replace officers of court with judicial officers; to amend the law of diligence; and for connected purposes.

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Modifications etc. (not altering text)

Part 1SBankruptcy

Duration of bankruptcyS

F11Discharge of debtorS

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Amendments (Textual)

Bankruptcy restrictions orders and undertakingsS

F12Bankruptcy restrictions orders and undertakingsS

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Amendments (Textual)

Effect of bankruptcy restrictions orders and undertakingsS

3Disqualification from being appointed as receiverS

(1)Section 51 of the Insolvency Act 1986 (c. 45) (appointment of receiver) is amended as follows.

(2)In subsection (3), after paragraph (b), insert—

(ba)a person subject to a bankruptcy restrictions order;.

(3)In subsection (5), after “bankrupt” insert “or a person subject to a bankruptcy restrictions order”.

(4)In subsection (6), after “receivers” insert ; and

bankruptcy restrictions order” means—

(a)a bankruptcy restrictions order made under section 56A of the Bankruptcy (Scotland) Act 1985 (c. 66);

(b)a bankruptcy restrictions undertaking entered into under section 56G of that Act;

(c)a bankruptcy restrictions order made under paragraph 1 of Schedule 4A to this Act; or

(d)a bankruptcy restrictions undertaking entered into under paragraph 7 of that Schedule..

4Disqualification for nomination, election and holding office as member of local authorityS

In section 31 of the Local Government (Scotland) Act 1973 (c. 65) (disqualifications for nomination, election and holding office as member of local authority)—

(a)after subsection (1)(b), insert—

(ba)he is subject to a bankruptcy restrictions order;; and

(b)after subsection (3A), insert—

(3B)In subsection (1)(ba) above, “bankruptcy restrictions order” means—

(a)a bankruptcy restrictions order made under section 56A of the Bankruptcy (Scotland) Act 1985;

(b)a bankruptcy restrictions undertaking entered into under section 56G of that Act;

(c)a bankruptcy restrictions order made under paragraph 1 of Schedule 4A to the Insolvency Act 1986 (c. 45); or

(d)a bankruptcy restrictions undertaking entered into under paragraph 7 of that Schedule..

F25Orders relating to disqualificationS

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Amendments (Textual)

The trustee in the sequestrationS

F26Amalgamation of offices of interim trustee and permanent trusteeS

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Amendments (Textual)

F27Repeal of trustee's residence requirementS

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Amendments (Textual)

F28Duties of trusteeS

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Amendments (Textual)

F29Grounds for resignation or removal of trusteeS

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Amendments (Textual)

F210Termination of interim trustee's functionsS

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Amendments (Textual)

F211Statutory meeting and election of trusteeS

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Amendments (Textual)

F212 Replacement of trustee acting in more than one sequestrationS

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Amendments (Textual)

F213Requirement to hold money in interest bearing accountS

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Amendments (Textual)

Debtor applicationsS

F214Debtor applicationsS

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Amendments (Textual)

F215Debtor applications by low income, low asset debtorsS

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Amendments (Textual)

JurisdictionS

F216Sequestration proceedings to be competent only before sheriffS

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Amendments (Textual)

Vesting of estate and dealings of debtorS

F217Vesting of estate and dealings of debtorS

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Amendments (Textual)

Income received by debtor after sequestrationS

F218Income received by debtor after sequestrationS

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Amendments (Textual)

Debtor's home and other heritable propertyS

F219Debtor's home and other heritable propertyS

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Amendments (Textual)

Protected trust deedsS

F220Modification of provisions relating to protected trust deedsS

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Amendments (Textual)

...S

F221Modification of composition procedureS

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Amendments (Textual)

Status and powers of Accountant in BankruptcyS

F222Status of Accountant in Bankruptcy as officer of the courtS

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Amendments (Textual)

F223Accountant in Bankruptcy's power to investigate trustees under protected trust deedsS

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Amendments (Textual)

OffencesS

F224Modification of offences under section 67 of the 1985 ActS

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Amendments (Textual)

Miscellaneous and generalS

F225Debt limits in sequestrationsS

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Amendments (Textual)

F226Creditor to provide debt advice and information packageS

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Amendments (Textual)

F227Continuation of sequestration proceedingsS

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Amendments (Textual)

F228Abolition of summary administrationS

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Amendments (Textual)

F229Non-vested contingent interest reinvested in debtorS

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Amendments (Textual)

F230Debtor's requirement to give account of state of affairsS

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Amendments (Textual)

F231Restriction of debtor's right to appeal under sections 49(6) and 53(6) of the 1985 ActS

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Amendments (Textual)

F232Status of order on petition to convert protected trust deed into sequestrationS

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Amendments (Textual)

33Power to provide for lay representation in sequestration proceedingsS

In section 32(1) of the Sheriff Courts (Scotland) Act 1971 (c. 58) (power of Court of Session to regulate civil procedure in sheriff court), after paragraph (l) insert—

(m)permitting a debtor appearing before a sheriff under section 12 of the Bankruptcy (Scotland) Act 1985 (c. 66) (award of sequestration) to be represented, in such circumstances as may be specified in the act of sederunt, by a person who is neither an advocate nor a solicitor..

34Treatment of student loans on sequestrationS

(1)In section 73B(12) of the Education (Scotland) Act 1980 (c. 44) (power to make provision in relation to treatment of student loans upon discharge under the 1985 Act), after “receive,” insert “before, on or”.

(2)In paragraph 6 of Schedule 2 to the Education (Student Loans) Act 1990 (c. 6) (treatment of student loans on sequestration), which, notwithstanding its repeal by section 44 of and Schedule 4 to the Teaching and Higher Education Act 1998 (c. 30), is saved by virtue of article 3 of the Teaching and Higher Education Act 1998 (Commencement No. 2 and Transitional Provisions) Order 1998 (S.I. 1998 No. 2004)—

(a)after “Where,” insert “before, on or”; and

(b)after “before” insert “, on”.

F335Certain regulations under the 1985 Act: procedureS

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Amendments (Textual)

F336Minor and consequential amendments of the 1985 ActS

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Amendments (Textual)

Part 2SFloating charges

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Modifications etc. (not altering text)

C4Pt. 2 amendment to earlier affecting provision S.I. 2015/428, Sch. 2 (with application in accordance with art. 1(4) of the amending S.I.) by The Building Societies (Floating Charges and Other Provisions) Order 2016 (S.I. 2016/679), arts. 1(1)(2), 7(b)

C5Pt. 2 applied (prosp.) by 1967 c. 48, s. 3(1) (as substituted by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp. 3), ss. 49(1), 227 (with s. 223))

Registration and creation etc.S

37Register of Floating ChargesS

(1)The Keeper of the Registers of Scotland (in this Part, the “Keeper”) must establish and maintain a register to be known as the Register of Floating Charges.

(2)The Keeper must accept an application for registration of—

(a)any document delivered to the Keeper in pursuance of section 38, 41, 42, 43 or 44 of this Act; and

(b)any notice delivered to the Keeper in pursuance of section 39 or 45(2) of this Act,

provided that the application is accompanied by such information as the Keeper may require for the purposes of the registration.

(3)On receipt of such an application, the Keeper must note the date of receipt of the application; and, where the application is accepted by the Keeper, that date is to be treated for the purposes of this Part as the date of registration of the document or notice to which the application relates.

(4)The Keeper must, after accepting such an application, complete registration by registering in the Register of Floating Charges the document or notice to which the application relates.

(5)The Keeper must—

(a)make the Register of Floating Charges available for public inspection at all reasonable times;

(b)provide facilities for members of the public to obtain copies of the documents in the Register; and

(c)supply an extract of a document in the Register, certified as a true copy of the original, to any person requesting it.

(6)An extract certified as mentioned in subsection (5)(c) above is sufficient evidence of the original.

(7)The Keeper may charge such fees—

(a)for registering a document or notice in the Register of Floating Charges; or

(b)in relation to anything done under subsection (5) above,

as the Scottish Ministers may by regulations prescribe.

(8)The Scottish Ministers may by regulations make provision as to—

(a)the form and manner in which the Register of Floating Charges is to be maintained;

(b)the form of documents (including notices as mentioned in sections 39(1) and 45(2) of this Act) for registration in that Register, the particulars they are to contain and the manner in which they are to be delivered to the Keeper.

(9)Provision under subsection (8) above may, in particular, facilitate the use—

(a)of electronic communication;

(b)of documents in electronic form (and of certified electronic signatures in documents).

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Commencement Information

I1S. 37 partly in force; s. 37 not in force at Royal Assent see s. 227; s. 37(7)(8) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

38Creation of floating chargesS

(1)It continues to be competent, for the purpose of securing any obligation to which this subsection applies, for a company to grant in favour of the creditor in the obligation a charge (known as a “floating charge”) over all or any part of the property which may from time to time be comprised in the company's property and undertaking.

(2)Subsection (1) above applies to any debt or other obligation incurred or to be incurred by, or binding upon, the company or any other person.

(3)From the coming into force of this section, a floating charge is (subject to [F4subsection (3A) and]F4 section 39 of this Act) created only when a document—

(a)granting a floating charge; and

(b)subscribed by the company granting the charge,

is registered in the Register of Floating Charges.

[F5(3A)If a floating charge is granted in favour of a central institution, it is created only when the document granting the floating charge is executed by the company granting the charge.]

F5(4)References in this Part to a document which grants a floating charge are to a document by means of which a floating charge is granted.

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Amendments (Textual)

F4Words in s. 38(3) inserted (21.2.2009) by Banking Act 2009 (c. 1), ss. 253(2)(a), 263(1)(2) (with s. 247); S.I. 2009/296, art. 3, Sch. para. 11

Prospective

39Advance notice of floating chargesS

(1)Where a company proposes to grant a floating charge, the company and the person in whose favour the charge is to be granted may apply to have joint notice of the proposed charge registered in the Register of Floating Charges.

(2)Subsection (3) below applies where—

(a)a notice under subsection (1) above is registered in the Register of Floating Charges; and

(b)within 21 days of the notice being so registered, a document—

(i)granting a floating charge conforming with the particulars contained in the notice; and

(ii)subscribed by the company granting the charge,

is registered in the Register of Floating Charges.

(3)Where this subsection applies, the floating charge so created is to be treated as having been created when the notice under subsection (1) above was so registered.

[F6(4)This section does not apply where a company proposes to grant a floating charge in favour of a central institution.]F6

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Amendments (Textual)

Prospective

40Ranking of floating chargesS

(1)Subject to subsections (4) and (5) below, a floating charge—

(a)created on or after the coming into force of this section; and

(b)which has attached to all or any part of the property of a company,

ranks as described in subsection (2) below.

(2)The floating charge referred to in subsection (1) above—

(a)ranks with—

(i)any other floating charge which has attached to that property or any part of it; or

(ii)any fixed security over that property or any part of it,

according to date of creation; and

(b)ranks equally with any floating charge or fixed security referred to in paragraph (a) above which was created on the same date as the floating charge referred to in subsection (1) above.

(3)For the purposes of subsection (2) above—

(a)the date of creation of a fixed security is the date on which the right to the security was constituted as a real right; and

(b)the date of creation of a floating charge subsisting before the coming into force of this section is the date on which the instrument creating the charge was executed by the company granting the charge.

(4)Where all or any part of the property of a company is subject to both—

(a)a floating charge; and

(b)a fixed security arising by operation of law,

the fixed security has priority over the floating charge.

(5)Where the holder of a floating charge over all or any part of the property of a company has received intimation in writing of the subsequent creation of—

(a)another floating charge over the same property or any part of it; or

(b)a fixed security over the same property or any part of it,

the priority of ranking of the first-mentioned charge is restricted to security for the matters referred to in subsection (6) below.

(6)Those matters are—

(a)the present debt incurred (whenever payable);

(b)any future debt which, under the contract to which the charge relates, the holder is required to allow the debtor to incur;

(c)any interest due or to become due on the debts referred to in paragraphs (a) and (b) above;

(d)any expenses or outlays which may be reasonably incurred by the holder; and

(e)in the case of a floating charge to secure a contingent liability (other than a liability arising under any further debts incurred from time to time), the maximum sum to which the contingent liability is capable of amounting, whether or not it is contractually limited.

(7)Subsections (1) to (6) above, and any provision made under section 41(1) of this Act, are subject to sections 175 and 176A (provision for preferential debts and share of assets) of the Insolvency Act 1986 (c. 45).

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Modifications etc. (not altering text)

C6S. 40(1)-(3) applied (prosp.) by 1967 c. 48, s. 3(2) (as inserted by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp. 3), ss. 49(1), 227 (with s. 223))

C7S. 40(1)-(3) applied (prosp.) by 1967 c. 48, s. 3(2) (as inserted by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp. 3), ss. 49(1), 227 (with s. 223))

C8S. 40(1)-(3) applied (prosp.) by 1967 c. 48, s. 3(2) (as inserted by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp. 3), ss. 49(1), 227 (with s. 223))

Prospective

41Ranking clausesS

(1)The document granting a floating charge over all or any part of the property of a company may make provision regulating the order in which the charge ranks with any other floating charge or any fixed security (including a future floating charge or fixed security) over that property or any part of it.

(2)Provision under subsection (1) above—

(a)may displace in whole or part—

(i)subsections (1) and (2) of section 40 of this Act;

(ii)subsections (5) and (6) of that section;

(b)may not affect the operation of subsection (4) of that section (whether as against subsections (1) and (2) of that section or other provision under subsection (1) above).

(3)Accordingly, subsections (1), (2), (5) and (6) of that section have effect subject to any provision made under subsection (1) above.

(4)Provision under subsection (1) above is not valid unless it is made with the consent of the holder of any subsisting floating charge, or any subsisting fixed security, which would be adversely affected by the provision.

(5)A document of consent for the purpose of subsection (4) above may be registered in the Register of Floating Charges.

Prospective

42Assignation of floating chargesS

(1)A floating charge may be assigned (and the rights under it vested in the assignee) by the registration in the Register of Floating Charges of a document of assignation subscribed by the holder of the charge.

(2)An assignation under subsection (1) above may be in whole or to such extent as may be specified in the document of assignation.

(3)This section is without prejudice to any other enactment, or any rule of law, by virtue of which a floating charge may be assigned.

[F7(4)This section does not apply where a floating charge is assigned (whether in whole or to a specified extent) to or by a central institution.]F7

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Amendments (Textual)

Prospective

43Alteration of floating chargesS

(1)A document of alteration may alter (whether by addition, deletion or substitution of text or otherwise) the terms of a document granting a floating charge.

(2)If (and in so far as) an alteration to the terms of a document granting a floating charge concerns—

(a)the ranking of the charge with any other floating charge or any fixed security; or

(b)the specification of—

(i)the property that is subject to the charge; or

(ii)the obligations that are secured by the charge,

the alteration is not valid unless subsection (3) below is satisfied.

(3)This subsection is satisfied if the alteration is made by a document of alteration which is—

(a)subscribed by—

(i)the company which granted the charge;

(ii)the holder of the charge; and

(iii)the holder of any other subsisting floating charge, or any subsisting fixed security, which would be adversely affected by the alteration; and

(b)registered in the Register of Floating Charges.

(4)[F8Paragraph]F8(a)(i) of subsection (3) above does not apply in respect of an alteration which—

(a)relates only to the ranking of the floating charge first-mentioned in that subsection with any other floating charge or any fixed security; and

(b)does not adversely affect the interests of the company which granted the charge.

[F9(4A)Paragraph (b) of subsection (3) above does not apply in respect of an alteration if—

(a)the holder of the floating charge is a central institution, or

(b)the holder of the floating charge is not a central institution but the alteration is to be made in connection with a floating charge which is held (or which has been or is to be held) by a central institution.]

F9(5)The granting, by the holder of a floating charge, of consent to the release from the scope of the charge of any particular property, or class of property, which is subject to the charge is to be treated as constituting an alteration—

(a)to the terms of the document granting the charge; and

(b)as to the specification of the property that is subject to the charge.

(6)For the purpose of subsection (5) above, property is not to be regarded as released from the scope of a floating charge by reason only of its ceasing to be the property of the company which granted the charge.

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Amendments (Textual)

F8Word in s. 43(4) substituted (21.2.2009) by Banking Act 2009 (c. 1), ss. 253(5)(a), 263(1)(2) (with s. 247); S.I. 2009/296, art. 3, Sch. para. 11

Prospective

44Discharge of floating chargesS

(1)A floating charge may be discharged by the registration in the Register of Floating Charges of a document of discharge subscribed by the holder of the charge.

(2)A discharge under subsection (1) above may be in whole or to such extent as may be specified in the document of discharge.

(3)This section is without prejudice to any other means by which a floating charge may be discharged or extinguished.

[F10(4)This section does not apply where the floating charge to be discharged (whether in whole or to a specified extent) is or has been held by a central institution.]F10

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Amendments (Textual)

Prospective

45Effect of floating charges on winding upS

(1)Where a company goes into liquidation, a floating charge created over property of the company attaches to the property to which it relates.

(2)But, in a case mentioned in subsection (7)(a) below, there is no attachment under subsection (1) above until such time as a notice of attachment is registered in the Register of Floating Charges on the application of the holder of the charge.

(3)The attachment of a floating charge to property under subsection (1) above is subject to the rights of any person who—

(a)has effectually executed diligence on the property to which the charge relates or any part of it;

(b)holds over that property or any part of it a fixed security ranking in priority to the floating charge; or

(c)holds over that property or any part of it another floating charge so ranking.

(4)Interest accrues in respect of a floating charge which has attached to property until payment is made of any sum due under the charge.

(5)Part IV, except section 185, of the Insolvency Act 1986 has (subject to subsection (1) above) effect in relation to a floating charge as if the charge were a fixed security over the property to which it has attached in respect of the principal of the debt or obligation to which it relates and any interest due or to become due on it.

(6)Subsections (1) to (5) above do not affect the operation of—

(a)sections 53(7) and 54(6) (attachment of floating charge on appointment of receiver) of the Insolvency Act 1986;

(b)sections 175 and 176A of that Act; or

(c)paragraph 115(3) of Schedule B1 (attachment of floating charge on delivery of a notice by an administrator) to that Act.

(7)For the purposes of this section, reference to a company going into liquidation—

(a)in a case where a court of a member State has under the [F11EU insolvency Regulation] jurisdiction as respects the company which granted the relevant floating charge, means the opening of insolvency proceedings in that State;

(b)in any other case, is to be construed in accordance with section 247(2) and (3) of the Insolvency Act 1986 (c. 45).

(8)In subsection (7)(a) above—

  • [F12“the EU insolvency Regulation” is Regulation (EU) 2015/848 of the European Parliament and of the Council on insolvency proceedings;]

  • court” is to be construed in accordance with [F13Article 2(6)] of that Regulation;

  • insolvency proceedings” is to be construed in accordance with [F14Article 2(4)] of that Regulation;

  • member State” means a member State of the European Union apart from the United Kingdom.

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Amendments (Textual)

Modifications etc. (not altering text)

C9S. 45(3)(c) applied (prosp.) by 1967 c. 48, s. 3(2) (as inserted by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp. 3), ss. 49(1), 227 (with s. 223))

Prospective

46Repeals, savings and transitional arrangementsS

(1)Part XVIII (floating charges: Scotland) of the Companies Act 1985 (c. 6) is repealed.

(2)Nothing in this Part (except sections 40 and 41 so far as they concern the ranking of floating charges subsisting immediately before the coming into force of this section) affects the validity or operation of floating charges subsisting before the coming into force of this section.

(3)So, despite the repeal of Chapters I and III of Part XVIII of that Act by subsection (1) above, the provisions of those Chapters are to be treated as having effect for the purposes of floating charges subsisting immediately before the coming into force of this section.

(4)In particular—

(a)floating charges subsisting immediately before the coming into force of this section rank with each other as they ranked with each other in accordance with section 464 of the Companies Act 1985 immediately before that section was repealed by subsection (1) above; and

(b)a floating charge subsisting immediately before the coming into force of this section ranks with a fixed security so subsisting as it ranked with the security in accordance with section 464 of the Companies Act 1985 immediately before that section was repealed by subsection (1) above.

(5)Section 140(floating charges (Scotland)) of the Companies Act 1989 (c. 40) is repealed (but, despite being repealed, is to be treated as having effect for the purposes of subsections (3) and (4) above).

Prospective

47InterpretationS

In this Part—

  • [F15central institution ” means—

    (a)

    the Bank of England,

    (b)

    the central bank of a country or territory outside the United Kingdom, or

    (c)

    the European Central Bank;]

  • F15company” means an incorporated company (whether or not a company [F16as defined in section 1(1) of the Companies Act 2006]F16);

  • fixed security”, in relation to any property of a company, means any security (other than a floating charge or a charge having the character of a floating charge) which on the winding up of the company in Scotland would be treated as an effective security over that property including, in particular, a heritable security (within the meaning of section 9(8) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35)).

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Amendments (Textual)

F15S. 47: definition of "central institution" inserted (21.2.2009) by Banking Act 2009 (c. 1), ss. 253(7), 263(1)(2) (with s. 247); S.I. 2009/296, art. 3, Sch. para. 11

Prospective

Related further provisionS

48Formalities as to documentsS

(1)In section 6 (registration of documents) of the Requirements of Writing (Scotland) Act 1995 (c. 7), after subsection (1)(a), insert—

(aa)to register a document in the Register of Floating Charges;.

(2)In section 46 (extract decree of reduction to be recorded) of the Conveyancing (Scotland) Act 1924 (c. 27)—

(a)in subsection (2), for the words “This section” substitute “ Subsection (1) above ”; and

(b)after subsection (2), insert—

(3)This section shall apply in relation to a document registered in the Register of Floating Charges as it applies in relation to a deed or other document pertaining to a heritable security which is recorded in the Register of Sasines (and the references to recording are to be read accordingly)..

(3)In section 8 (rectification of defectively expressed documents) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), after subsection (5), insert—

(5A)Subsection (5) above applies in relation to document registered in the Register of Floating Charges as it applies in relation to a document recorded in the Register of Sasines (and the references to recording are to be read accordingly)..

49Industrial and provident societiesS

(1)For [F17section 62 (floating charges created by Scottish societies) of the Co-operative and Community Benefit Societies Act 2014] (c. 48) substitute—

3Application to registered societies of provisions relating to floating charges

(1)The provisions of Part 2 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (in this section referred to as the “relevant provisions”) shall apply to a registered society as they apply to an incorporated company.

(2)Where, in the case of a registered society—

(a)there are in existence—

(i)a floating charge created under the relevant provisions (as applied by this section), and

(ii)an agricultural charge created under Part II of the Agricultural Credits (Scotland) Act 1929 (c. 13), and

(b)any assets of the society are subject to both charges,

sections 40(1) to (3) (including as subject to section 41(1) to (4)) and 45(3)(c) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 shall have effect for the purposes of determining the ranking with one another of those charges as if the agricultural charge were a floating charge created under the relevant provisions on the date of creation of the agricultural charge..

(2)Section [F1863] (filing of information relating to charges) of that Act is repealed.

(3)In section [F1964 (notification of charges etc: Scotland)] of that Act—

[F20(a)for paragraph (a) of subsection (1) substitute—

(a)the giving to the FCA of notice of any security, except a floating charge, granted by a registered society over any of its assets;]

(b)the references to section [F2163] of that Act are to be treated as references to that section as it had effect immediately before its repeal by subsection (2) above.

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Amendments (Textual)

Part 3S[F22Officers of court]

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Amendments (Textual)

Scottish Civil Enforcement CommissionS

F2350Scottish Civil Enforcement CommissionS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

[F24Advisory Council on Messengers-at-Arms and Sheriff Officers]S

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Amendments (Textual)

51[F25Advisory Council's] annual reportS

F26(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)[F27The Advisory Council on Messengers-at-Arms and Sheriff Officers (the “Advisory Council”)] must prepare a report on its activities during the whole of each financial year as soon as practicable after the end of the period to which the report relates.

(3)A report prepared under subsection (2) above—

F28(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)may include a statistical analysis of the performance by [F29officers of court] of their functions and the undertaking by officers of activities during the period to which the report relates or any other period specified by the [F30Advisory Council] in the report.

(4)The [F31Advisory Council] may, in preparing the report under subsection (2) above, require [F32the professional association designated by regulations under section 63(1)(a)] to provide any information [F33provided by virtue of regulations under section 63(1A) which the Advisory Council] considers necessary or proper for the purposes of preparing the report.

(5)The [F34Advisory Council] must—

(a)send a copy of each report prepared under subsection (2) above to the Scottish Ministers; and

(b)publish the report.

F35(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Commencement Information

I2S. 51(2)(3)(b)(4)(5) in force at 31.1.2011 by S.S.I. 2011/31, art. 3(a)

Prospective

F3652Publication of guidance and other informationS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

53Published information not to enable identificationS

Information—

(a)contained in a report prepared under section 51(2); F37...

F37(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

of this Act must not be in a form which identifies or enables the identification of [F38officers of court] or persons against whom diligence has been executed.

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Amendments (Textual)

Commencement Information

I3S. 53 in force at 31.1.2011 by S.S.I. 2011/31, art. 3(b)

Prospective

F3954Register of judicial officersS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Prospective

F3955Code of practiceS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Prospective

F3956Publication of information relating to informal debt collectionS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Judicial officersS

Prospective

F3957Judicial officersS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F3958Appointment of judicial officerS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Prospective

F3959Annual feeS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Prospective

Abolition of offices of messenger-at-arms and sheriff officerS

F3960Abolition of offices of messenger-at-arms and sheriff officerS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Regulation of [F40officers of court]S

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Amendments (Textual)

61Regulation of [F41officers of court]S

(1)The Scottish Ministers may, by regulations—

(a)confer functions on;

(b)remove functions from; or

(c)otherwise modify the functions of,

[F42officers of court].

(2)The Scottish Ministers may, by regulations—

(a)prescribe the types of business association which [F43officers of court] may form in order to carry out their functions;

(b)make provision about the ownership, membership, management and control of those business associations;

(c)prescribe conditions which must be satisfied by those business associations;

F44(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Before making regulations under subsection (1) or (2) above, the Scottish Ministers must consult [F45

(a)the Lord President of the Court of Session; and

(b)each sheriff principal.]

F46(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F46(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F46(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F46(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Commencement Information

I4S. 61 not in force at Royal Assent see s. 227; s. 61(1)(2)(3) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

I5S. 61(1)-(3) in force at 31.1.2011 in so far as not already in force by S.S.I. 2011/31, art. 3(c)

62Duty to notify [F47Lord President and sheriff principal] of bankruptcy etc.S

(1)Where, in relation to [F48an officer of court], any of the events mentioned in subsection (2) below occurs, the officer must, before the expiry of the period of 28 days beginning with the occurrence of the event—

[F49(a)in the case of a messenger-at-arms, notify the Lord President of the Court of Session in writing of the event;

(b)in the case of a sheriff officer, notify the sheriff principal from whom the officer holds a commission in writing of the event.]

(2)The events referred to in subsection (1) above are—

(a)the sequestration of the [F50officer of court];

(b)the granting by the officer of a trust deed for creditors;

(c)the making of a bankruptcy restrictions order in respect of the officer;

F51(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)the making, under the Company Directors Disqualification Act 1986 (c. 46), of a disqualification order against the officer;

(f)where the officer is a partner in a partnership the sole or main business of which is the provision of [F52officer of court] services—

(i)the granting by the partnership of a trust deed for creditors; or

(ii)the sequestration of the partnership;

(g)where the officer is a member in a limited liability partnership the sole or main business of which is the provision of [F53officer of court] services, the commencement of the winding up of that partnership on the ground of insolvency.

(3)In subsection (2) above, “trust deed” has the meaning given by section 5(4A) of the 1985 Act.

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Amendments (Textual)

Commencement Information

I6S. 62 in force at 1.4.2011 by S.S.I. 2011/31, art. 4

[F54Officers of court's] professional associationS

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Amendments (Textual)

F54Words in crossheading preceding s. 63 substituted (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 para. 15(2); S.S.I. 2011/30, art. 3(1)(3), Sch. 1

63[F55Officers of court's] professional associationS

(1)The Scottish Ministers, by regulations—

(a)must designate an association[F56(in this Part, the “professional association”)] as the professional association for [F57officers of court]; and

(b)may make provision in relation to the functions, constitution and procedures of the professional association.

[F58(1A)Regulations under subsection (1) may require an officer of court to provide such information as the professional association reasonably considers necessary.]

(2)The Scottish Ministers may not make regulations under subsection (1) above without first consulting—

[F59(a)the Lord President of the Court of Session;

(aa)each sheriff principal;]

(b)representatives of the professional association or, as the case may be, proposed professional association; and

(c)such other bodies or persons who appear to the Scottish Ministers to have an interest.

(3)A person may not hold a commission as [F60an officer of court] unless that person is a member of the professional association.

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Amendments (Textual)

F59 S. 63(2)(a) (aa) substituted for s. 63(2)(a) (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8) , s. 134(7) , Sch. 4 para. 15(1)(c) ; S.S.I. 2011/30 , art. 3(1) (3) , Sch. 1

Commencement Information

I7 S. 63 not in force at Royal Assent see s. 227; s. 63(1)(2) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115 , art. 3(4) , Sch. 3 (with arts. 4-6 , 10 )

I8 S. 63(1)(2) in force at 31.1.2011 for specified purposes by S.S.I. 2011/31 , art. 3(d)

I9S. 63(1)(2) in force at 1.4.2011 in so far as not already in force by S.S.I. 2011/31, art. 4

I10S. 63(3) in force at 1.4.2011 by S.S.I. 2011/31, art. 4

[F6163ACode of practiceS

(1)The professional association—

(a)must prepare and publish a code of practice in relation to the functions of officers of court; and

(b)may prepare and publish such a code in relation to the undertaking of activities by such officers.

(2)The professional association may revise the whole or any part of a code published under this section.

(3)Where a code or any part of a code is revised under subsection (2), the professional association—

(a)in a case where the revision results in substantial changes, must publish the revised code;

(b)in any other case, may publish the revised code.

(4)The professional association must not publish a code of practice or a revised code of practice under this section without the prior approval of the Lord President of the Court of Session.

(5)The professional association must send a copy of each code of practice published under this section to—

(a)the Scottish Ministers;

(b)the Lord President of the Court of Session;

(c)each sheriff principal; and

(d)each officer of court.]

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Amendments (Textual)

64Duty of professional association to forward complaints F62...S

Where the professional association receives a complaint about [F63an officer of court] or any services provided by the officer, the association must send details of the complaint and any material which accompanies it —

[F64(a)to the Lord President of the Court of Session;

(b)in the case of a complaint about a messenger-at-arms, to the sheriff principal from whom the messenger-at-arms holds a commission as a sheriff officer; and

(c)in the case of a complaint about a sheriff officer, to the sheriff principal from whom the sheriff officer holds a commission.]

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Amendments (Textual)

Commencement Information

I11S. 64 in force at 1.4.2011 by S.S.I. 2011/31, art. 4

65Information from professional associationS

The [F65Lord President of the Court of Session or any sheriff principal] may require the professional association to provide any information the [F66Lord President or, as the case may be, sheriff principal] considers necessary or proper for the purposes of—

(a)any inspection under section 66 of this Act;

(b)any investigation under section [F6779(2) of the 1987 Act]; or

[F68(c)any disciplinary proceedings brought under section 79(3) of that Act.]

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Amendments (Textual)

Commencement Information

I12S. 65 in force at 1.4.2011 by S.S.I. 2011/31, art. 4

[F69Annual fee for officers of courtS

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Amendments (Textual)

65AAnnual feeS

(1)The professional association may make rules requiring every officer of court holding a commission to pay an annual fee to the association.

(2)Rules made under subsection (1) above may include provision—

(a)specifying the date by which the fee must be paid each year;

(b)specifying the manner in which it must be paid; and

(c)about any other matters in relation to the fee that the professional association considers appropriate.

(3)Rules under this section may be made only with the approval of the Lord President of the Court of Session.]

Investigation of [F70officers of court]S

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Amendments (Textual)

F70Words in crossheading preceding s. 66 substituted (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 para. 20(3); S.S.I. 2011/30, art. 3(1)(3), Sch. 1

66Inspection of [F71officer of court]S

(1)The [F72Lord President of the Court of Session or any sheriff principal] may appoint a person to inspect the work or particular aspects of the work of [F73an officer of court].

(2)A person appointed under subsection (1) above must, if required to do so by the [F74Lord President or, as the case may be, the sheriff principal], inquire into any activities undertaken for remuneration by the [F75officer of court].

(3)A person appointed under subsection (1) above must submit a report of the inspection and of any inquiry under subsection (2) above to the [F76Lord President or, as the case may be, the sheriff principal].

(4)The [F77Scottish Ministers] must pay a person appointed under subsection (1) above—

(a)a fee, unless the person is employed in the civil service and the person carries out the inspection in that person's capacity as a civil servant; and

(b)any outlays reasonably incurred by the person,

in connection with an inspection, inquiry and report under this section.

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Amendments (Textual)

Commencement Information

I13S. 66 in force at 31.1.2011 by S.S.I. 2011/31, art. 3(e)

Prospective

F7867Investigation of alleged misconduct by judicial officerS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Prospective

F7868Suspension of judicial officer pending outcome of disciplinary or criminal proceedingsS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Prospective

F7869Commission's duty in relation to offences or misconduct by judicial officerS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Prospective

F7870Commission's power in relation to judicial officer's bankruptcy etc.S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Prospective

Disciplinary proceedingsS

F7871Referrals to the disciplinary committeeS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F7872Disciplinary committee's powersS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F7873Orders under sections 68 and 72: supplementary provisionS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

Prospective

AppealsS

F7874Appeals from decisions under sections 58, 68 and 72S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

MiscellaneousS

75[F79Officer of court's] actions void where officer has interestS

(1)Anything done by [F80an officer of court] in exercising or purporting to exercise a prescribed function in relation to a matter in which the officer has an interest is void.

(2)[F81An officer of court] has an interest in a matter where the matter—

(a)is one in which the officer has an interest as an individual; or

(b)consists of or includes a debt in relation to which any of the circumstances mentioned in subsection (3) below apply.

(3)The circumstances referred to in subsection (2)(b) above are that the debt is due to or by—

(a)a business associate of the [F82officer of court];

(b)a member of the officer's family; or

(c)a company or firm, and the officer, a business associate of the officer or a member of the officer's family—

(i)is a director or partner of that company or firm;

(ii)holds, either alone or along with an other person, a controlling interest in that company or firm; or

(iii)has a pecuniary interest in that company or firm and the sole or main business of the company or firm is the purchase of debts for enforcement.

(4)Any reference in subsection (3) above to—

(a)a business associate of [F83an officer of court] is to be construed as a reference to a co-director, partner, employer, employee, agent or principal of the officer;

(b)a controlling interest in a company is to be construed as a reference to an interest giving a person control of a company within the meaning of section 840 of the Income and Corporation Taxes Act 1988 (c. 1) (meaning of “control”).

(5)Any reference in subsection (3) above to a member of [F84an officer of court's] family is to be construed as a reference to—

(a)the spouse of the officer;

(b)a person living together with the officer as husband and wife;

(c)a civil partner of the officer;

(d)a person living with the officer in a relationship which has the characteristics of the relationship between a husband and wife except that the person and the officer are of the same sex;

(e)a parent of the officer;

(f)a brother or sister of the officer;

(g)a child of the officer, including—

(i)a stepchild; and

(ii)any child brought up or treated by the officer or any person mentioned in paragraph (b), (c) or (d) above as a child of the officer or, as the case may be, of that person;

(h)a grandchild of the officer,

and any relationships of the half blood or by affinity are to be construed as relationships of the full blood.

(6)In subsection (4)(a) above, “principal” does not include a principal in a contract for the carrying out by the [F85officer of court] of the prescribed function in relation to the debt concerned.

(7)In subsections (1) and (6) above, “prescribed function” means any function conferred on [F86an officer of court] by virtue of this Act or any other enactment which the Scottish Ministers by regulations specify for the purposes of this section.

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Amendments (Textual)

Commencement Information

I14S. 75 not in force at Royal Assent see s. 227; s. 75(7) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

I15S. 75(1)-(6) in force at 31.1.2011 by S.S.I. 2011/31, art. 3(f)

I16S. 75(7) in force at 31.1.2011 in so far as not already in force by S.S.I. 2011/31, art. 3(f)

Prospective

F8776Measure of damages payable by judicial officer for negligence or other faultS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

77Effect of code of practiceS

(1)[F88An officer of court] must, in exercising the officer's functions or undertaking any activities, have regard to the provisions (so far as they are applicable) of any code of practice published under section [F8963A] of this Act.

(2)A failure on the part of [F90an officer of court] to comply with any provision of a code of practice does not of itself render the officer liable to any criminal or civil proceedings.

(3)A code of practice is admissible in evidence in any criminal or civil proceedings.

(4)If any provision of a code of practice appears to—

(a)the court or tribunal conducting any civil or criminal proceedings; or

[F91(b)a relevant court (within the meaning of subsection (8) of section 79 of the 1987 Act (investigation of alleged misconduct)) in disciplinary proceedings under that section;]

to be relevant to any question arising in the proceedings, that provision of the code may be taken into account in determining that question.

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Amendments (Textual)

Commencement Information

I17S. 77 in force at 31.1.2011 by S.S.I. 2011/31, art. 3(g)

78Electronic publications and communicationsS

In this Part—

(a)references to “publishing” include publishing by electronic means and cognate expressions are to be construed accordingly; and

(b)any reference to a notification, F92... being in writing includes a reference to that notification, F92... being an electronic communication.

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Amendments (Textual)

Commencement Information

I18S. 78 in force at 31.1.2011 by S.S.I. 2011/31, art. 3(g)

Part 4 SLand attachment and residual attachment

Prospective

Chapter 1SAbolition of adjudication for debt

79Abolition of adjudication for debtS

(1)The diligence of adjudication for debt is abolished and any enactment or rule of law enabling an action of adjudication for debt to be raised ceases to have effect.

(2)Subsection (1) above does not affect an action of adjudication for debt—

(a)raised before; and

(b)in which decree of adjudication is granted no later than 6 months after,

the day this section comes into force.

80Renaming of the Register of Inhibitions and AdjudicationsS

(1)The Register of Inhibitions and Adjudications is renamed the Register of Inhibitions.

(2)Any reference in an enactment to—

(a)the Register of Inhibitions and Adjudications;

(b)the General Register of Inhibitions; or

(c)the Register of Adjudications,

is to be construed as a reference to the Register of Inhibitions.

Chapter 2SAttachment of land

Land attachmentS

81Land attachmentS

(1)There is to be a form of diligence over land to be known as land attachment.

(2)Land attachment is competent to enforce payment of a debt but only if—

(a)the debt is constituted by a decree or document of debt;

(b)the debtor has been charged to pay the debt;

(c)the period for payment specified in the charge has expired without payment being made; and

(d)where the debtor is an individual, the creditor has, no earlier than 12 weeks before registering the notice of land attachment, provided the debtor with a debt advice and information package.

(3)A land attachment is, subject to sections 83(6) and 121(1) of this Act, created at the beginning of the day which falls immediately after the expiry of the period of 28 days beginning with the day or, as the case may be, the last day on which a notice of land attachment in relation to the land is registered.

(4)During the period of 28 days referred to in subsection (3) above, the notice has effect as if it were an inhibition—

(a)registered against the debtor in the Register of Inhibitions; and

(b)restricted to the land described in the notice.

(5)A land attachment—

(a)confers on the creditor a subordinate real right over the land described in the notice (in this Chapter, the “attached land”); and

(b)secures the sum (in this Chapter, the “sum recoverable by the land attachment”) mentioned in subsection (6) below.

(6)That sum is—

(a)the sum for the payment of which the charge was served, together with any interest accruing after such service and before the attachment ceases to have effect; and

(b)all expenses which are chargeable against the debtor by virtue of the attachment.

(7)The Scottish Ministers may, by regulations—

(a)substitute for the period of 28 days referred to in subsection (3) above such other period; and

(b)make such amendment of enactments (including this Act) in consequence of such a substitution,

as they think fit.

(8)In this Act, “debt advice and information package” means the debt advice and information package referred to in section 10(5) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) (in this Act, the “2002 Act”).

Prospective

82Attachable landS

(1)In this Chapter, “land” means—

(a)land (including buildings and other structures and land covered with water) owned by the debtor; and

(b)a long lease of land in relation to which the debtor is the tenant.

(2)It is not competent to create a land attachment over—

(a)land—

(i)to which a title has never been registered; or

(ii)to which the debtor does not have a registered title;

(b)a proper liferent in relation to which the debtor is the liferenter; or

(c)a long lease which is not assignable.

(3)Subsection (2)(c) above does not apply to a lease which is assignable only with the consent of the landlord, whether or not it is a condition of the lease that consent must not be withheld unreasonably.

83Notice of land attachmentS

(1)A notice of land attachment must—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt;

(b)describe the land to be attached; and

(c)be registered in both—

(i)the property register in which title to the land is registered (in this Chapter, the “appropriate property register”); and

(ii)the Register of Inhibitions.

(2)It is not competent to register a notice of land attachment unless the sum which the debtor has been charged to pay exceeds the sum mentioned in subsection (3) below.

(3)That sum is—

(a)£3,000; or

(b)such other sum as may be prescribed by the Scottish Ministers by regulations.

(4)It is competent to register a single notice of land attachment in relation to two or more sums which, under separate warrants for diligence in execution, the debtor has been charged to pay.

(5)The [F93officer of court] must, on or as soon as is reasonably practicable after the day or, as the case may be, the last day on which the notice of land attachment is registered, serve a copy of the notice on—

(a)the debtor;

(b)any person who owns the land (whether solely or in common with the debtor); and

(c)any tenant under a long lease of the land.

(6)If, before the expiry of the period of 28 days referred to in section 81(3) of this Act, the creditor does not register a certificate of service on the debtor, the notice of land attachment is, and is deemed always to have been, void.

(7)Subsection (1) above applies to a certificate of service as it applies to a notice of land attachment.

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Amendments (Textual)

Commencement Information

I19S. 83 partly in force; s. 83 not in force at Royal Assent see s. 227; s. 83(1)(a)(3)(b) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Consequences of land attachmentS

Prospective

84Debts secured by land attachment not rendered heritableS

The creation of a land attachment does not convert any moveable debt, in relation to the enforcement of which the notice of land attachment was registered, into a heritable one.

Prospective

85Restriction on priority of ranking of certain securitiesS

After section 13 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35), insert—

13AEffect of subsequent land attachment on ranking of standard securities

(1)This section applies where—

(a)a notice of land attachment, relating to land (or any part of it) which is subject to an existing standard security duly[F94registered or] recorded, is registered in accordance with section 83(1)(c) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3);

(b)a copy of that notice is served on the creditor in that existing standard security; and

(c)a land attachment is subsequently created on the expiry of the period of 28 days mentioned in section 81(3) of that Act.

(2)Section 13(1) of this Act shall apply in relation to the effect on the preference in ranking of that existing standard security from the day on which the period referred to in subsection (1)(c) above expires..

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Amendments (Textual)

Prospective

86Lease granted after registration of notice of land attachmentS

(1)This section applies where—

(a)a notice of land attachment is registered;

(b)during the period of 28 days mentioned in section 81(3) of this Act—

(i)the debtor; or

(ii)a tenant of the debtor,

grants a lease of land (or a part of it) specified in the notice; and

(c)a land attachment is, on the expiry of that period, created.

(2)Subject to section 163(2) to (4) of this Act (restriction on reduction of leases granted in breach of inhibition), any such lease is reducible at the instance of the creditor.

(3)In subsection (1)(b) above, “tenant” includes any subtenant of the tenant and “lease” includes a sublease.

Prospective

87Assignation of title deeds etc.S

(1)A land attachment assigns to the creditor the title deeds, including searches and all unregistered conveyances, affecting the attached land or any part of it.

(2)The creditor is, in the event of a sale of the attached land (or part of it) in pursuance of a warrant under section 97(2) of this Act, entitled to—

(a)deliver the title deeds (so far as in the creditor's possession and subject to the rights of any person holding prior rights to their possession) to the purchaser; and

(b)assign to the purchaser any right the creditor has to have the title deeds made forthcoming.

88Acquisition of right to execute land attachmentS

(1)This section applies where—

(a)a person acquires a right as mentioned in section 88(1) (acquisition of right to decree, document, order or determination authorising diligence) of the Debtors (Scotland) Act 1987 (c. 18) (in this Act, the “1987 Act”); and

(b)a notice of land attachment has, before that acquisition, been registered in pursuance of that right.

(2)The person acquiring the right may, by registering a notice such as is mentioned in subsection (3) below, take or continue to take any steps necessary to enforce the debt by land attachment as if the appropriate clerk had, under section 88(4) of the 1987 Act, granted warrant authorising the person to do so.

(3)The notice referred to in subsection (2) above must—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

(b)be registered in—

(i)the appropriate property register; and

(ii)the Register of Inhibitions.

(4)References in this Chapter to a “creditor” include, unless the context otherwise requires, references to a person who registers a notice under subsection (2) above.

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Commencement Information

I20S. 88 partly in force; s. 88 not in force at Royal Assent see s. 227; s. 88(3)(a) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

89Effect of debtor's death before land attachment createdS

(1)This section applies where—

(a)a debtor, in relation to whose land a creditor has taken steps to commence or execute a land attachment, dies; and

(b)a land attachment has not, before the date of death of the debtor, been created.

(2)Any steps taken as mentioned in subsection (1)(a) above cease to have effect and any charge relating to the debt is, from the date of death of the debtor, void.

(3)Nothing in subsection (2) above stops the creditor from subsequently proceeding to raise against any executor or other representative of the debtor an action to constitute the debt.

(4)Any warrant for diligence in an extract of a decree in such an action authorises land attachment.

Prospective

90Effect of debtor's death after land attachment createdS

(1)For the avoidance of doubt, where a debtor, whose land is subject to a land attachment, dies, the land attachment continues to have effect in relation to the attached land.

(2)The Court of Session may, by Act of Sederunt, provide for the operation of this Chapter in a case to which this section applies and may, in particular—

(a)modify the provisions about service of notices of applications for warrant for sale and foreclosure; and

(b)confer power on the sheriff to dispense with or modify procedures under this Chapter.

91Caveat by purchaser under missivesS

(1)This section applies where—

(a)a person has entered into a contract to purchase land from a debtor; and

(b)ownership has not been transferred to that person.

(2)The person may, for the purpose of receiving intimation of any application, under section 92(1) of this Act, for a warrant for sale of the land, register in the Register of Inhibitions a notice in (or as nearly as may be in) the form prescribed by Act of Sederunt.

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Commencement Information

I21S. 91(2) partly in force; s. 91 not in force at Royal Assent see s. 227; s. 91(2) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Preparations for sale of attached landS

92Application for warrant to sell attached landS

(1)Where—

(a)a land attachment is in effect;

(b)the period of 6 months, beginning with the day or, as the case may be, the last day on which the notice of land attachment is registered, has expired;

(c)the sum recoverable by the land attachment exceeds the sum mentioned in subsection (3) below (in this Chapter, the “prescribed sum”); and

(d)the sum recoverable has not been paid,

the creditor may, subject to subsection (2) below, apply to the sheriff for a warrant for sale of the attached land or such part of it as may be specified in the application.

(2)The Scottish Ministers may by regulations provide that where attached land, or any part of it, is—

(a)a dwellinghouse; or

(b)a dwellinghouse of such description or class as may be specified in the regulations,

an application under subsection (1) above may be made only in relation to such part of the attached land which is not a dwellinghouse or, as the case may be, such a dwellinghouse.

(3)The prescribed sum is—

(a)£3,000; or

(b)such other sum as may be prescribed by the Scottish Ministers by regulations.

(4)An application under subsection (1) above must—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt;

(b)specify—

(i)the attached land (or part of it) in relation to which the warrant for sale is sought; and

(ii)a solicitor who is willing to execute any warrant for sale granted; and

(c)be accompanied by—

(i)a report on a search in the appropriate property register in respect of the land specified in the application;

(ii)a report on a search in the Register of Inhibitions in respect of the debtor and any person who owns the attached land in common with the debtor;

(iii)a copy of the notice of land attachment;

(iv)a copy of the certificate of service of that notice on the debtor;

(v)a declaration signed by the solicitor mentioned in paragraph (b)(ii) above; and

(vi)any other document prescribed by Act of Sederunt.

(5)An application under subsection (1) above must be intimated to—

(a)the debtor;

(b)if the report mentioned in subsection (4)(c)(ii) above discloses that a notice has been registered under section 91 of this Act, the person at whose instance the notice was registered;

(c)any person holding any security or diligence ranking prior to or pari passu with the land attachment;

(d)any occupier of the land;

(e)any person who owns the land in common with the debtor; and

(f)any other person belonging to a class of persons prescribed by the Scottish Ministers by regulations.

(6)A person who receives intimation under subsection (5) above may, before the expiry of the period of 14 days beginning with the day on which intimation is made, lodge objections to the application.

(7)The Scottish Ministers may, by regulations, make further provision about the reports on searches mentioned in subsection (4)(c)(i) and (ii) above which are to accompany an application under subsection (1) above.

(8)Where provision is made by virtue of this Chapter or by any other enactment permitting the application under subsection (1) above to be an electronic communication—

(a)the requirement in paragraph (c) of subsection (4) above that the application be accompanied by the documents mentioned in that paragraph is satisfied by the provision of electronic communications; and

(b)the requirement that the declaration mentioned in sub-paragraph (v) of that paragraph be signed is satisfied by a certified electronic signature.

(9)In this section, “sheriff” means a sheriff of the sheriffdom in which the attached land or any part of it is situated.

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Commencement Information

I22S. 92 partly in force; s. 92 not in force at Royal Assent see s. 227; s. 92(2)(3)(b)(4)(a)(4)(c)(vi)(5)(f)(7) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

93Notice to local authority of application for warrant for saleS

(1)Where a creditor (other than a local authority) applies under section 92(1) of this Act for a warrant for sale of attached land which comprises or includes a dwellinghouse, the creditor must give notice of that fact to the local authority in whose area the dwellinghouse is situated.

(2)A notice under subsection (1) above must be given in the form and manner prescribed under section 11(3) of the Homelessness etc. (Scotland) Act 2003 (asp 10).

Prospective

94Preliminary hearing on application for warrant to sellS

(1)The sheriff must, on receiving an application under section 92(1) of this Act and after expiry of the period mentioned in subsection (6) of that section—

(a)hold a hearing; and

(b)give the persons mentioned in subsection (5) of that section the opportunity of making representations.

(2)The creditor must attend the hearing whether or not the application is opposed.

(3)The sheriff must, if satisfied that the application is in order, make an order—

(a)fixing a date for a hearing on the application under section 97 of this Act;

(b)requiring the creditor to intimate that date to the persons mentioned in section 92(5) of this Act;

(c)appointing a chartered surveyor or other suitably qualified person to report on the open market value of the land specified in the application (that surveyor or other person, and their report, being referred to in this Chapter as the “valuer” and the “valuation report” respectively); and

(d)where any security or diligence is held in relation to the land specified in the application and the creditor has been unable to ascertain the amount of the sums secured by that other security or diligence, requiring the holder of that security or diligence to disclose to the creditor—

(i)the amount of the sums secured; and

(ii)where the security holder is obliged to pay any other sums which would be secured by that security to the debtor, the amount of such sums.

Prospective

95Valuation reportS

(1)The valuer appointed under section 94(3)(c) of this Act—

(a)may take all steps which are reasonably necessary (including inspecting the attached land) to produce a valuation report; and

(b)must send a copy of the report to—

(i)the creditor; and

(ii)the persons mentioned in section 92(5) of this Act.

(2)The debtor and any other person in occupation of attached land must allow the valuer to inspect the land and carry out any other steps which are necessary to produce the valuation report.

(3)The creditor is liable for the valuer's reasonable remuneration and outlays incurred in exercising functions under this section.

(4)Such remuneration and outlays are expenses incurred by the creditor in executing the land attachment.

96Creditor's duties prior to full hearing on application for warrant for saleS

(1)The creditor must, no later than 7 clear days before the date fixed for the hearing under section 97 of this Act, lodge—

(a)the valuation report;

(b)a continuation of the report on the search in the appropriate property register mentioned in section 92(4)(c)(i) of this Act;

(c)a continuation of the report on the search in the Register of Inhibitions mentioned in section 92(4)(c)(ii) of this Act; and

(d)a note specifying the amount outstanding under any security or diligence over the land specified in the application.

(2)Where a report lodged under subsection (1)(b) or (c) above reveals a deed registered since the date of the report mentioned in section 92(4)(c)(i) of this Act or, as the case may be, a notice under section 91 of this Act registered since the date of the report mentioned in section 92(4)(c)(ii) of this Act, the sheriff—

(a)must make an order requiring—

(i)the application; and

(ii)the date fixed for the hearing,

to be intimated to the person who registered that deed or, as the case may be, that notice; and

(b)may, if it appears necessary to do so, make an order—

(i)postponing the hearing to a later date; and

(ii)requiring the creditor to intimate that date to that person and to the persons mentioned in section 92(5) of this Act.

(3)Where the sheriff makes an order under subsection (2)(b)(i) above postponing the hearing, the sheriff may make such ancillary orders as the sheriff thinks fit including, without prejudice to that generality, an order requiring fresh continuations of the reports on searches mentioned in subsection (1)(b) and (c) above to be lodged.

(4)Subsection (6) of section 92 of this Act applies to a person who receives intimation under subsection (2) above as it applies to a person who receives intimation under subsection (5) of that section.

(5)The Scottish Ministers may, by regulations, make further provision about the continuations of the reports on searches mentioned in subsection (1)(b) and (c) above which are to be lodged under that subsection.

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Commencement Information

I23S. 96 partly in force; s. 96 not in force at Royal Assent see s. 227; s. 96(5) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

97Full hearing on application for warrant for saleS

(1)At the hearing on an application under section 92(1) of this Act, the sheriff must not make any order without first giving any person who has lodged objections under section 92(6) of this Act an opportunity to be heard.

(2)Subject to subsections (3) and (5) below and to sections 98, 99 and 102 of this Act, the sheriff may, if satisfied that the application is in order, make an order—

(a)subject to subsection (4) below, granting a warrant for sale of the attached land; and

(b)authorising the solicitor specified in the application (or such other solicitor the sheriff specifies) to execute that warrant (in this Chapter, that solicitor being referred to as the “appointed person”).

(3)The sheriff may, if satisfied that granting a warrant for sale would be unduly harsh to the debtor or any other person having an interest—

(a)make an order under subsection (2) above but suspend its effect for a period not exceeding 1 year beginning with the date on which the order is made; or

(b)make an order refusing to grant such a warrant.

(4)The sheriff—

(a)must specify in the warrant granted the period within which the attached land is to be sold; and

(b)may grant warrant—

(i)to sell only part of the attached land;

(ii)to sell the attached land by lots.

(5)The sheriff must make an order refusing the application for a warrant for sale if satisfied that any of the grounds mentioned in subsection (6) below apply.

(6)The grounds referred to in subsection (5) above are that—

(a)the land attachment is invalid;

(b)the land attachment has ceased to have effect;

(c)the attached land (or any part of it) is not capable of being sold;

(d)the sum recoverable by the land attachment does not exceed the prescribed sum;

(e)a warrant for sale of the attached land (or any part of it) has been granted to another creditor of the debtor;

(f)a heritable creditor of the debtor is exercising that creditor's right to sell the attached land (or any part of it) under the security;

(g)if the attached land (or any part of it) were sold, the likely net proceeds of the sale would not exceed the sum mentioned in subsection (7) below.

(7)The sum referred to in subsection (6)(g) above is the aggregate of—

(a)the expenses of the land attachment chargeable against the debtor; and

(b)whichever is the lesser of—

(i)the sum of £1,000; and

(ii)the sum equal to 10 per cent of the sum mentioned in section 81(6)(a) of this Act or so much of that sum as is outstanding,

or such other sum or percentage as may be prescribed by the Scottish Ministers by regulations.

(8)In subsection (6)(g) above, “likely net proceeds” means the sum likely to be raised by the sale of the attached land less any sums that would be due to a creditor holding a security or diligence over the attached land which ranks prior to or pari passu with the land attachment.

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Commencement Information

I24S. 97 partly in force; s. 97 not in force at Royal Assent see s. 227; s. 97(7) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

98Application for warrant for sale of sole or main residenceS

(1)This section applies where—

(a)the creditor applies under section 92(1) of this Act for a warrant for sale of attached land which comprises or includes a dwellinghouse; and

(b)that dwellinghouse is the sole or main residence of—

(i)the debtor;

(ii)where the owner of the dwellinghouse is not the debtor, that owner; or

(iii)any person mentioned in subsection (2) below.

(2)Those persons are—

(a)a non-entitled spouse of the debtor or the owner;

(b)a person living together with the debtor or the owner as husband and wife;

(c)a civil partner of the debtor or the owner;

(d)a person living together with the debtor in a relationship which has the characteristics of the relationship between a husband and wife except that the person and the debtor or the owner are of the same sex;

(e)a person to whom subsection (3) below applies.

(3)This subsection applies to a person where—

(a)the debtor or the owner does not reside in the dwellinghouse;

(b)a child of the debtor or the owner, who is also a child of the person, does so reside; and

(c)the person has lived together with the debtor or the owner as is mentioned in paragraph (b) or (d) of subsection (2) above throughout the period of 6 months ending with the day on which the debtor or the owner ceased to so reside.

(4)Before making, under section 97(2) of this Act, an order granting a warrant for sale, the sheriff must have regard to the matters mentioned in subsection (5) below.

(5)Subject to subsection (6) below, those matters are—

(a)the nature of and reasons for the debt secured by the land attachment;

(b)the debtor's ability to pay, if the effect of the warrant for sale were suspended by an order under subsection (7) below, the debt outstanding (including any interest and expenses chargeable against the debtor);

(c)any action taken by the creditor to assist the debtor in paying that debt;

(d)the ability of those occupying the dwellinghouse as their sole or main residence to secure reasonable alternative accommodation.

(6)The Scottish Ministers may by regulations modify subsection (5) above to—

(a)add to;

(b)remove from; or

(c)vary,

the matters mentioned there.

(7)Where the sheriff makes, under section 97(2) of this Act, an order granting a warrant for sale, the sheriff may suspend the effect of the warrant for a period not exceeding 1 year beginning with the day on which the order is made.

(8)For the purposes of subsection (1) above, a dwellinghouse may be a sole or main residence irrespective of whether it is used, to any extent, by the debtor or a person mentioned in subsection (2) above for the purposes of any profession, trade or business.

(9)In this section—

  • child” means—

    (a)

    a child under the age of 16 years; and

    (b)

    includes—

    (i)

    a stepchild; and

    (ii)

    any child brought up or treated by any person to whom subsection (3) above applies or by the debtor or the owner as a child of that person, of the debtor or of the owner;

  • dwellinghouse” includes any yard, garden, outbuilding or other pertinents; and

  • non-entitled spouse” is to be construed in accordance with section 1(1) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (c. 59).

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Commencement Information

I25S. 98 partly in force; s. 98 not in force at Royal Assent see s. 227; s. 98(6) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

99Protection of purchaser under contract where creditor applies for warrant for saleS

(1)This section applies where—

(a)the creditor applies under section 92(1) of this Act for a warrant for sale of attached land; and

(b)a person, at whose instance a notice was, by virtue of section 91 of this Act, registered (in this section, a “prospective purchaser”), has lodged objections to the application.

(2)At the hearing under section 97(1) of this Act, the sheriff may, if satisfied as to the matters mentioned in subsection (3) below, make an order—

(a)sisting the application;

(b)requiring the prospective purchaser to pay the price under the contract to the creditor; and

(c)making such other incidental or consequential provision as the sheriff thinks fit.

(3)The matters are that—

(a)the prospective purchaser did not, in entering into the contract for the purchase of the land, seek to defeat the rights of creditors of the debtor; and

(b)both the prospective purchaser and the debtor will proceed with the purchase under the contract without undue delay.

(4)Section 116 of this Act applies to the proceeds of sale paid to the creditor in pursuance of an order under subsection (2) above as it applies to a sale in pursuance of a warrant for sale subject to the modification that references to the “appointed person” are references to the “creditor”.

Prospective

100Protection of purchaser under contract where warrant for sale grantedS

(1)This section applies where—

(a)a warrant for sale has been granted under section 97(2) of this Act; and

(b)a person (in this section, the “prospective purchaser”) had, before the notice of land attachment was registered, entered into a contract to purchase attached land from the debtor.

(2)The sheriff may, on the application of the prospective purchaser and if satisfied as to the matters mentioned in section 99(3) of this Act, make an order—

(a)suspending the warrant for sale for a period not exceeding 1 year from the day on which the order is made;

(b)requiring the prospective purchaser to pay the price under the contract to the appointed person; and

(c)making such other incidental or consequential provision as the sheriff thinks fit.

(3)Section 116 of this Act applies to the proceeds of sale paid to the appointed person in pursuance of an order under subsection (2) above as it applies to a sale in pursuance of a warrant for sale.

Prospective

101Provision supplementary to sections 99 and 100S

(1)This section applies where an order is made under section 99(2) or 100(2) of this Act.

(2)The sheriff may, on the application of the creditor or the appointed person, as the case may be, if satisfied as to the matters mentioned in subsection (3) below, revoke the order under section 99(2) or, as the case may be, section 100(2) of this Act.

(3)The matters are that—

(a)the prospective purchaser and the debtor entered into the contract for the purchase of the land in order to defeat the rights of creditors of the debtor; or

(b)there has been undue delay in completing the purchase.

Prospective

102Warrant for sale of attached land owned in commonS

(1)This section applies where attached land specified in an application under section 92(1) of this Act is a pro indiviso share owned in common by the debtor and a third party.

(2)Subject to subsection (3) below, the sheriff may, under section 97(2) of this Act, make an order granting a warrant for sale of the land specified in the application.

(3)The sheriff must specify in the order whether the warrant—

(a)authorises—

(i)division of the land owned in common; and

(ii)sale of the part, specified in the warrant, which, after such division, would belong to the debtor as sole owner (in this section, the “debtor's part”); or

(b)sale of the land owned in common and, subject to subsection (5) below, division of the proceeds.

(4)Where the warrant authorises division of the land owned in common—

(a)with effect from the day on which the order granting the warrant is made—

(i)the debtor's part is subject to the land attachment; and

(ii)the remaining land is disburdened of the land attachment; and

(b)this Chapter applies as if the warrant for sale granted were a warrant for sale of the debtor's part only.

(5)Where the warrant authorises sale of the land owned in common and division of the proceeds, the appointed person must—

(a)subject to the rights of any creditor of the third party holding a security over the third party's pro indiviso share of the land, pay to the third party the share of the proceeds of sale due to that person; and

(b)deal, under section 116 of this Act, with the share of the proceeds that is attributable to the debtor's share in the land as if those proceeds were proceeds from the sale of land owned by the debtor as sole owner.

(6)Where land to which this section applies is divided and sold, or sold, in pursuance of a warrant for sale, the third party who, immediately before that warrant is granted, owned the land in common with the debtor may purchase the debtor's part or, as the case may be, the land.

(7)Where the third party purchases land which is sold under a warrant authorising sale and division of the proceeds—

(a)the third party need pay to the appointed person only the share of the price attributable to the debtor's share in the land; and

(b)subsection (5)(a) above does not apply.

Prospective

103Intimation of sheriff's decision at full hearingS

(1)Where a warrant for sale is granted under section 97(2) of this Act, the creditor must, as soon as is reasonably practicable, send a copy of the warrant to—

(a)the debtor; and

(b)the appointed person.

(2)Where a warrant for sale is refused under section 97(3)(b) or (5) of this Act, the sheriff clerk must, as soon as is reasonably practicable, send a copy of the order to the debtor and to any other person appearing to the sheriff clerk to have an interest.

Prospective

104Supplementary orders as respects saleS

(1)The sheriff may, either when making an order granting a warrant for sale or subsequently, make such order as appears to the sheriff to be appropriate in connection with the sale of the attached land.

(2)In particular, the sheriff may, on the application of the appointed person—

(a)extend the period specified in the warrant granted under section 97(2) of this Act within which the land is to be sold;

(b)remove that appointed person and appoint another solicitor as the appointed person; and

(c)on the application of the creditor, the debtor or any other person appearing to the sheriff to have an interest—

(i)in a case where the appointed person has died, appoint another solicitor as the appointed person;

(ii)in a case where the appointed person is unable to carry out the appointed person's functions due to ill health or incapacity, remove that person and appoint another solicitor as appointed person;

(iii)in any other case, on cause shown, so remove and appoint.

(3)An order made under this section after the grant of a warrant for sale must be intimated by the creditor—

(a)in such form and manner;

(b)before the expiry of such period; and

(c)to the debtor and such other persons,

as the sheriff may direct.

Prospective

105Effect of certain refusals of application for warrant for sale under section 97(5)S

Where, under section 97(5) of this Act, an order is made refusing an application for a warrant for sale by virtue of a ground mentioned in paragraph (d), (e), (f) or (g) of subsection (6) of that section—

(a)the land attachment does not, by reason only of that refusal, cease to have effect; and

(b)it is competent for the creditor to make a further application under section 92(1) of this Act.

106Termination of debtor's right to occupy landS

(1)Where an order is made granting a warrant for sale, the creditor may, by notice served on—

(a)the debtor; and

(b)any other person having a right, derived from the debtor, to occupy the land to which the warrant relates,

terminate, with effect from such day as the creditor specifies in the notice (being a day not less than 7 days after the date of service), any right of the debtor (or other person) to occupy that land.

(2)A notice under subsection (1) above must be—

(a)in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

(b)served on the debtor or, as the case may be, other person.

(3)Any right of a person (other than the debtor) to occupy land which, before a notice of land attachment relating to the land was registered, would have been binding on a singular successor of the debtor is not affected by subsection (1) above.

(4)A certificate, in (or as nearly as may be in) the form prescribed by Act of Sederunt, of service of a notice such as is mentioned in subsection (1) above may be registered.

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Commencement Information

I26S. 106 partly in force; s. 106 not in force at Royal Assent see s. 227; s. 106(2)(4) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

107Consequences of giving notice under section 106(1)S

(1)From the date on which the creditor gives notice under section 106(1) of this Act until the land attachment ceases to have effect the creditor (in place of the debtor) has the rights and obligations of a heritable creditor in lawful possession of the land.

(2)Without prejudice to the generality of subsection (1) above, those rights and obligations—

(a)include any rights and obligations under any lease, or under any permission or right of occupancy, granted in respect of the land, including the right to receive rent from any tenant;

(b)do not include the power to grant a lease.

(3)Subsection (2)(a) above applies only as respects rent payable on or after the date on which the creditor intimates in writing to the tenant that the notice has been given.

(4)A creditor who has given notice under section 106(1) of this Act—

(a)may apply to the sheriff for an order—

(i)authorising the carrying out of works of reconstruction, alteration or improvement if they are works reasonably required to maintain the market value of the land; and

(ii)to recover from the debtor any expenses and outlays reasonably incurred in so doing;

(b)may bring an action of ejection against the debtor; and

(c)has title to bring any action of removing, intrusion or ejection which the debtor might competently have brought in respect of the land.

(5)Any—

(a)expenses or outlays incurred as mentioned in subsection (4)(a)(ii) above; and

(b)expenses of any action of removing, intrusion or ejection brought by virtue of subsection (4)(b) or (c) above,

are expenses incurred in executing the land attachment.

(6)The reference in subsection (3) above to intimation in writing includes a reference to intimation by electronic communication.

The saleS

108Appointed personS

(1)The appointed person—

(a)is an officer of the court; and

(b)must act independently of the creditor, the debtor and any other interested person.

(2)Before exercising any functions conferred by virtue of this Chapter, the appointed person must lodge a bond of caution for such amount as may be prescribed by Act of Sederunt.

(3)The appointed person may apply to the sheriff who granted the warrant for sale under section 97(2) of this Act for directions as to how to exercise any of that person's functions.

(4)In executing a warrant for sale granted under section 97(2) of this Act, the appointed person must—

(a)exercise the functions conferred—

(i)by this Chapter; and

(ii)by the Scottish Ministers under subsection (8) below; and

(b)comply with any directions made under subsection (3) above.

(5)The appointed person is liable to the creditor, the debtor, any person who owns the attached land in common with the debtor and any secured creditor for any patrimonial loss caused as a result of the appointed person's negligence in executing the warrant for sale.

(6)The creditor is liable for the appointed person's reasonable remuneration and outlays incurred in exercising functions conferred by virtue of this Chapter.

(7)Such remuneration and outlays are expenses incurred by the creditor in executing the land attachment.

(8)The Scottish Ministers may, by regulations—

(a)confer functions on;

(b)remove functions from; or

(c)otherwise modify the functions of,

appointed persons.

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Commencement Information

I27S. 108 partly in force; s. 108 not in force at Royal Assent see s. 227; s. 108(2)(8) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

109Method of saleS

(1)The land in relation to which a warrant for sale is granted under section 97(2) of this Act must be sold in execution of that warrant by the appointed person.

(2)The land may, unless the sheriff otherwise directs, be sold by private bargain or at auction.

(3)The appointed person must consult the creditor before determining which of the methods of sale mentioned in subsection (2) above is to be used.

(4)The appointed person must—

(a)advertise the sale of the attached land; and

(b)ensure that the price at which the land is sold is the best that can reasonably be obtained.

Prospective

110Legal incapacity or disability of debtor not to affect title of purchaserS

Any legal incapacity or disability of a debtor has no effect on the title passed to a purchaser of attached land which has been sold in execution of a warrant for sale.

111Title of purchaser not to be affected by certain irregularitiesS

(1)Where a disposition bearing to be granted in execution of a warrant for sale is registered in the appropriate property register, the validity of that disposition is not, if the conditions mentioned in subsection (2) below are satisfied, challengeable on the ground—

(a)that the land attachment was irregularly executed; or

(b)that, before the date of settlement of the sale, the land attachment had ceased to have effect.

(2)The conditions are that—

(a)the purchaser acted in good faith in relation to the purchase of the land; and

(b)the appointed person grants a certificate, in (or as nearly as may be in) the form prescribed by Act of Sederunt, to the purchaser confirming that the land attachment was regularly executed.

(3)In subsection (2)(a) above, a purchaser is deemed to have acted in good faith where, immediately before the date of settlement, the purchaser was not aware and could not reasonably have become aware that the land attachment was irregularly executed or, as the case may be, that it had, before that date, ceased to have effect.

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Commencement Information

I28S. 111 partly in force; s. 111 not in force at Royal Assent see s. 227; s. 111(2)(b) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

112Effect of registration of disposition on securitiesS

Where a disposition of attached land is granted in execution of a warrant for sale to a purchaser, then, on the registration of the disposition, the land is disburdened of—

(a)the land attachment; and

(b)any—

(i)heritable security; or

(ii)diligence,

ranking pari passu with, or after, the land attachment.

113Report of saleS

(1)Where attached land is sold in execution of a warrant for sale, the appointed person must, before the expiry of the period of 28 days beginning with the day on which the sale price is paid, lodge with the sheriff clerk for the court which granted the warrant a report of the sale.

(2)A report lodged under subsection (1) above must—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

(b)contain—

(i)a description of the land (or part) sold and the sale price;

(ii)a description of any land which is unsold and the price at which it was last offered for sale (or, if offered for sale at auction, the reserve price);

(iii)a statement of the expenses incurred by the creditor in executing the land attachment;

(iv)a statement of the amount due under any security or diligence ranking on the proceeds of sale prior to, or pari passu with, the land attachment;

(v)a statement of the amount due under any security or diligence ranking on the proceeds of sale after the land attachment;

(vi)a note of the amount of any surplus of the sale proceeds payable to the debtor; and

(vii)a note of any balance of the debt due by the debtor to the creditor.

(3)If the appointed person—

(a)without reasonable excuse makes a report of sale after the expiry of the period mentioned in subsection (1) above; or

(b)wilfully refuses to make, or delays making, a report after the expiry of that period,

the sheriff may make an order providing that the appointed person is not entitled to payment from the creditor of the reasonable remuneration and outlays incurred in executing the warrant for sale or so much of such remuneration and outlays as the sheriff specifies.

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Commencement Information

I29S. 113 partly in force; s. 113 not in force at Royal Assent see s. 227; s. 113(2)(a) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

114Audit of report of saleS

(1)Where a report is lodged under section 113(1) of this Act, the sheriff must remit it to the auditor of court for the auditor to report on it within such time as the sheriff may specify.

(2)The auditor must—

(a)tax the expenses of the land attachment chargeable against the debtor;

(b)certify the balance due to or by the debtor following the sale; and

(c)submit a report to the sheriff.

(3)The auditor is not entitled to charge a fee in respect of the report submitted under subsection (2)(c) above.

(4)The report of sale and the auditor's report must be retained by the sheriff clerk for such period as may be prescribed by Act of Sederunt and during that period must be available for inspection by any interested person on payment of such fee as may be prescribed in an order made under [F95section 107(1) of the Courts Reform (Scotland) Act 2014 (asp 18)].

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Amendments (Textual)

Prospective

115Sheriff's consideration of reportS

(1)Where the auditor has submitted a report to the sheriff under section 114(2)(c) of this Act, the sheriff may, after considering that report and the report on sale lodged under section 113(1) of this Act—

(a)make an order approving the report of sale subject to such amendments (if any) made—

(i)following a hearing under subsection (2) below, by the sheriff; or

(ii)by the auditor,

as may be specified in the order;

(b)if the sheriff is satisfied that there has been a substantial irregularity in the land attachment, make an order—

(i)declaring the land attachment to be void; and

(ii)making such consequential order as appears to the sheriff to be necessary in the circumstances.

(2)The sheriff may not make an order under subsection (1) above without first giving all interested persons an opportunity to be heard.

(3)The sheriff clerk must intimate the order of the sheriff under subsection (1) above to the debtor and any other person appearing to the sheriff clerk to have an interest.

(4)Any order under subsection (1)(b) above does not affect the title of any person to land sold in execution of the warrant for sale to which the report relates.

Prospective

116Proceeds of saleS

(1)Where attached land is sold in execution of a warrant for sale, the proceeds of the sale must be disbursed by the appointed person in the following order—

(a)subject to subsection (2) below, any expenses due to the creditor by virtue of section 114(2)(a) of this Act;

(b)any sums due to any other creditor holding a security or diligence over the land which ranks prior to the land attachment;

(c)any sums due to—

(i)the attaching creditor in respect of the sum recoverable by the land attachment (other than any such expenses as are mentioned in paragraph (a) above); and

(ii)any creditor under a security or diligence which ranks pari passu with the land attachment;

(d)any sums due to any other creditor under any security or diligence which ranks after the land attachment; and

(e)subject to section 37(8C)(b) of the 1985 Act, any balance due to the debtor.

(2)Subject to section 113(3) of this Act, the appointed person may deduct and retain from the sum mentioned in subsection (1)(a) above such remuneration and outlays incurred by the appointed person in executing the warrant for sale.

(3)Where there is a balance due to the debtor, the appointed person must pay it to the debtor or any person authorised to give a receipt for the balance on the debtor's behalf.

(4)Where, by virtue of subsection (1) above, a creditor receives the sums due to the creditor under a security or diligence, that creditor must grant a discharge of that security or diligence.

(5)If the appointed person is unable to obtain from—

(a)the debtor; or

(b)any creditor of the debtor;

a receipt or discharge in respect of the disbursement of the proceeds of sale, the appointed person may consign the amount due in the sheriff court for the person having right to it.

(6)Any such consignation discharges the obligation to pay the amount due; and a certificate of the sheriff clerk is sufficient evidence of the discharge.

ForeclosureS

117ForeclosureS

(1)This section applies where the appointed person—

(a)has exposed to sale the land specified in the warrant for sale; and

(b)has—

(i)failed to find a purchaser; or

(ii)succeeded in selling only part of the land, and that at a price which is less than the sum secured by the land attachment and by any security or diligence ranking prior to, or pari passu with, the land attachment.

(2)The appointed person may apply, in (or as nearly as may be in) the form prescribed by Act of Sederunt, to the sheriff who granted the warrant for sale for a decree of foreclosure.

(3)The application under subsection (2) above must be accompanied by—

(a)a statement setting out the whole amount secured—

(i)by the land attachment; and

(ii)by any other security or diligence ranking prior to or pari passu with the land attachment; and

(b)where part of the land has been sold, a report on that sale under section 113(1) of this Act.

(4)A copy of an application under subsection (2) above must be served by [F96an officer of court] on—

(a)the debtor;

(b)where the debtor does not own the land, the owner;

(c)any occupier of the land specified in the warrant for sale;

(d)any creditor in a heritable security affecting the land, as disclosed in a report of a search in the appropriate property register brought down to a date no later than 3 clear days before the day on which the application is made; and

(e)any other person having a land attachment or other diligence over the land.

(5)The sheriff, after affording any person on whom a copy of the application was served under subsection (4) above an opportunity to make representations, may—

(a)grant the decree of foreclosure applied for;

(b)sist the application for a period not exceeding 3 months to allow the debtor to pay the sum recoverable by the land attachment; or

(c)appoint a valuer to fix a reserve price at which the land (or remaining part of that land) must be—

(i)auctioned; or

(ii)advertised for sale and if unsold auctioned.

(6)The debtor may—

(a)bid and purchase at any auction under subsection (5)(c)(i) or (ii) above; or

(b)purchase at the price advertised under subsection (5)(c)(ii) above.

(7)Where an order has been made under subsection (5)(c) above and the appointed person—

(a)produces an auctioneer's certificate that the land in question has been duly exposed to sale at the reserve price but is unsold; or

(b)certifies in (or as nearly as may be in) the form prescribed by Act of Sederunt that the land has been advertised at the reserve price but is unsold,

the sheriff may, without further intimation, grant decree of foreclosure.

(8)A decree of foreclosure granted under this section must—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt;

(b)describe the land in relation to which it is granted; and

(c)contain a declaration of the price at which, on registration of an extract of the decree, the creditor is deemed to have acquired the land.

(9)Where provision is made by virtue of this Chapter or by any other enactment permitting the application under subsection (2) above to be an electronic communication, the requirement in subsection (3) above that the application be accompanied by the statement and report mentioned in that subsection is satisfied by the provision of electronic communications.

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Amendments (Textual)

Commencement Information

I30S. 117 partly in force; s. 117 not in force at Royal Assent see s. 227; s. 117(2)(7)(b)(8)(a) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

118Registration of decree of foreclosureS

(1)On registration of an extract of the decree of foreclosure in the appropriate property register—

(a)any right to discharge the land attachment by payment is extinguished;

(b)the creditor has right to, and is vested in, the land as if an irredeemable disposition of the land, granted in favour of the creditor by the debtor, had been delivered to the creditor and, on the date of registration of the extract of the decree, duly registered;

(c)the land is disburdened of the land attachment and of any security or diligence ranking after the land attachment; and

(d)the creditor has the like right as the debtor to redeem or as the case may be to discharge by payment any security or diligence ranking prior to, or pari passu with, the land attachment.

(2)Notwithstanding the registration of an extract of a decree of foreclosure, any personal obligation of the debtor under any security remains in full force and effect in so far as not extinguished by the price for which the creditor is deemed to have acquired the land and the price for which any part of the land has been sold.

(3)Title acquired by virtue of a decree of foreclosure under this section is not challengeable on the ground of any irregularity in the proceedings for, or in any diligence which preceded, foreclosure.

(4)Notwithstanding subsection (3) above, nothing in this section affects the competency of any claim for damages in respect of such proceedings or diligence as are mentioned in that subsection.

Payments to account and expensesS

Prospective

119AscriptionS

(1)This section applies where any sums are—

(a)recovered by a land attachment; or

(b)paid to account of the sum recoverable by the land attachment while it is in effect.

(2)Such sums must be ascribed to the following in the order in which they are mentioned—

(a)the expenses which are chargeable against the debtor incurred in the land attachment;

(b)any interest which has accrued, at the day or, as the case may be, the last day on which the notice of land attachment was registered, on the sum for payment of which the charge was served;

(c)any sum for payment of which that charge was served together with such interest as has accrued after the day mentioned in paragraph (b) above.

120Expenses of land attachmentS

(1)The expenses incurred by the creditor in executing a land attachment are chargeable against the debtor.

(2)Expenses which, in accordance with subsection (1) above, are chargeable against the debtor are recoverable from the debtor by the land attachment but not by any other legal process.

(3)Where any expenses such as are mentioned in subsection (2) above have not been recovered by the time the land attachment is completed, or otherwise ceases to have effect, they cease to be so recoverable.

(4)In subsection (2) above, the reference to expenses does not include a reference to the expenses of service of a charge.

(5)The sheriff may, if satisfied that the debtor has objected on frivolous grounds to—

(a)an application for a warrant for sale; or

(b)an application for a decree of foreclosure,

award expenses, not exceeding such amount as may be prescribed by the Scottish Ministers by regulations, against the debtor.

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Commencement Information

I31S. 120 partly in force; s. 120 not in force at Royal Assent see s. 227; s. 120(5) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Termination, discharge etc. of land attachmentS

Prospective

121Termination by payment etc.S

(1)If the full sum for payment of which the charge was served is, before the expiry of the period of 28 days mentioned in section 81(3) of this Act, either paid or tendered to the creditor, to [F97an officer of court] or to any other person who has authority to receive payment on behalf of the creditor—

(a)the land attachment is not created; and

(b)the notice of land attachment ceases to have effect.

(2)Subject to subsection (3) below, if the full sum recoverable by a land attachment is either paid or tendered to—

(a)any of the persons mentioned in subsection (1) above; or

(b)the appointed person,

the land attachment ceases to have effect.

(3)Subsection (2) above does not apply unless the sum is paid before—

(a)where a warrant for sale of the attached land (or part of it) is granted, a contract of sale of the attached land is concluded; or

(b)an extract of a decree of foreclosure in relation to the attached land (or part of it) is registered.

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Amendments (Textual)

Prospective

122DischargeS

(1)This section applies where—

(a)under section 121(1)(b) of this Act, a notice of land attachment ceases to have effect; or

(b)under subsection (2) of that section, a land attachment ceases to have effect.

(2)The creditor must discharge—

(a)the notice of land attachment; or

(b)the land attachment,

provided that the expenses of discharge are paid or tendered to any of the persons mentioned in section 121(1) of this Act.

(3)It is competent to register any such discharge.

123Recall and restriction of land attachmentS

(1)The debtor or any other person having an interest may apply to the sheriff for an order—

(a)recalling a land attachment; or

(b)restricting such an attachment.

(2)An application under subsection (1) above must—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

(b)be intimated to the creditor.

(3)The sheriff must, if satisfied—

(a)that the land attachment—

(i)is invalid;

(ii)has been executed incompetently or irregularly; or

(iii)has ceased to have effect; or

(b)that the creditor is, under section 122(2)(b) of this Act, obliged to discharge it,

make an order declaring that to be the case and recalling the land attachment.

(4)The sheriff may, if satisfied that a land attachment is valid but—

(a)having regard to the sum recoverable by the land attachment, that significantly more land is attached than need be; and

(b)that it is reasonable to do so,

make an order restricting the effect of the land attachment to part only of the land to which it relates.

(5)An order of recall or restriction must be in (or as nearly as may be in) the form prescribed by Act of Sederunt.

(6)It is competent for a person who obtains an order of recall or restriction to register that order in the appropriate property register.

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Commencement Information

I32S. 123 partly in force; s. 123 not in force at Royal Assent see s. 227; s. 123(2)(a)(5) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

124Duration of land attachmentS

(1)Subject to sections 121 to 123 of this Act and to subsection (2) below, a land attachment ceases to have effect on the expiry of the period of 5 years beginning with the day or, as the case may be, the last day on which the notice of land attachment is registered.

(2)The creditor may extend the period mentioned in subsection (1) above for a further period of 5 years.

(3)Such an extension is effected by the creditor registering, during the period of 2 months ending with the day on which the period mentioned in subsection (1) above ends, a notice of extension in (or as nearly as may be in) the form prescribed by Act of Sederunt.

(4)The creditor may extend the period for which a land attachment has effect on more than one occasion and subsections (1) to (3) above apply as if for the reference in subsection (1) above to the day on which the notice of land attachment is registered there were substituted a reference to the day or, as the case may be, the last day on which the notice of extension is last registered.

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Commencement Information

I33S. 124 partly in force; s. 124 not in force at Royal Assent see s. 227; s. 124(2) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

Land attachment subsequent to reduction of deed granted in breach of inhibitionS

125Land attachment subsequent to reduction of deed granted in breach of inhibitionS

(1)Notwithstanding section 82(2)(a)(ii) of this Act, where—

(a)a debtor has granted a deed to a person (in this section, a “third party”) in breach of an inhibition; and

(b)the deed has been reduced by the inhibiting creditor on the ground that it breached the inhibition,

it is competent for the inhibiting creditor to register a notice of land attachment in relation to land to which the reduced deed relates.

(2)A land attachment created following registration of a notice of land attachment in the circumstances mentioned in subsection (1) above enjoys preference in ranking in any competition with—

(a)a security granted over any land described in the notice in favour of; and

(b)a land attachment over any such land executed by,

a creditor of the third party.

(3)Where a notice of land attachment is registered in the circumstances mentioned in subsection (1) above, this Chapter applies with the following modifications (and in those modifications “third party” means a third party within the meaning given by subsection (1) above).

(4)The references mentioned in subsection (5) below to the “debtor” are to be read as references to the debtor and the third party.

(5)Those references are the references in sections 83(5)(a), 92(4)(c)(iv) and (5)(a), 103(1)(a), 104(3)(c), 106(1)(a), 108(5) and 117(4)(a).

(6)The references mentioned in subsection (7) below to the “debtor” are to read as references to the debtor or the third party.

(7)Those references are—

(a)the references in sections 86(1)(b), 91(1)(a), 95(2), 98(1)(b), (2), (3), (8) and (9)(b)(ii), 99(3)(b), 100(1)(b), 106(1) (except the reference in paragraph (a)), 107(1) and (4)(b) and (c), 113(2)(b)(vi), 116(3) and (5), 117(4) and (6) and 120(5); and

(b)the first reference in section 101(3)(a).

(8)In section 114(2)(b), after “to” insert “ the debtor or third party ”.

(9)In section 116(1), after paragraph (d) insert—

(da)any balance due to the third party;.

General and miscellaneousS

Prospective

126Land attachment as heritable securityS

For the avoidance of doubt, a land attachment is not a heritable security for the purposes of the Heritable Securities (Scotland) Act 1894 (c. 44).

Prospective

127Statement on impact of land attachmentS

(1)The Scottish Ministers must, within 15 months of the commencement of this Chapter, prepare, publish and lay before the Scottish Parliament a statement setting out the impact of land attachment on debt recovery and homelessness.

(2)The statement must specify—

(a)the number of land attachments registered;

(b)the number of warrants for sale—

(i)granted;

(ii)refused; or

(iii)suspended,

under section 97;

(c)the number of persons made homeless as a consequence of this Chapter;

(d)the mean and median sums recovered by land attachment; and

(e)the effect which land attachment appears to have had on debtors' abilities to meet ongoing financial obligations and repay other debts.

(3)In this section, “homeless” has the meaning given in section 24 of the Housing (Scotland) Act 1987 (c. 26).

[F98127AAmendment of Bankruptcy (Scotland) Act 2016S

(1)The Bankruptcy (Scotland) Act 2016 is amended as follows.

(2)After section 23 there is inserted—

23AEffect of sequestration on land attachment

(1)No land attachment of the heritable property of a debtor, created within the 6 months before the date of sequestration (whether or not subsisting at that date), is effectual to create a preference for the creditor.

(2)A creditor who creates a land attachment within the 6 months mentioned in subsection (1) is entitled to payment, out of the attached land or out of the proceeds of sale of it, of the expenses incurred—

(a)in obtaining the extract of the decree, or other document, containing the warrant for land attachment, and

(b)in serving the charge for payment, registering the notice of land attachment, serving a copy of that notice, and registering certificate of service of that copy.

(3)A notice of land attachment—

(a)registered on or after the date of sequestration against land forming part of the debtor's heritable estate (including any estate vesting under section 86(5) in the trustee in the sequestration) is of no effect,

(b)registered before that date and in relation to which, by that date, no land attachment is created is of no effect.

(4)It is not competent for a creditor to insist in a land attachment—

(a)created over the debtor's heritable estate before the beginning of the 6 months mentioned in subsection (1), and

(b)which subsists on the date of sequestration.

(5)But subsection (4) is subject to subsections (6) to (9).

(6)Where, in execution of a warrant for sale, a contract to sell the land has been concluded—

(a)the trustee must concur in and ratify the deed implementing that contract, and

(b)the appointed person must account for and pay to the trustee in the sequestration any balance of the proceeds of sale (being the balance which would, but for the sequestration, be due to the debtor) after disbursing those proceeds in accordance with section 116 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (disbursement of proceeds of sale of attached land).

(7)Subsection (6) does not apply where the deed implementing the contract is not registered within 28 days beginning with the day on which—

(a)the certified copy of the order of the sheriff granting warrant is recorded, under subsection (1)(a) of section 26, in the Register of Inhibitions, or

(b)the certified copy of the determination of AiB awarding sequestration is recorded, under subsection (2) of that section, in that register.

(8)Where a decree of foreclosure has been granted but an extract of it has not been registered, the creditor may proceed to complete title to the land by registering that extract provided that the creditor does so before the expiry of the days mentioned in subsection (7).

(9)The Scottish Ministers may, as they think fit, prescribe a period in substitution for the days mentioned in subsection (7); and a different period may be prescribed for the purposes of subsection (8) than is prescribed for the purposes of subsection (7).

(10)Expressions used in this section which also occur in Chapter 2 of Part 4 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 have the same meanings in this section as they have in that Chapter..

(3)In section 25 (effect of sequestration on diligence: estate of deceased debtor)—

(a)in subsection (1), for the words “Section 24 applies” there is substituted “ Sections 23A(1) and (2) and 24 apply ” and

(b)in subsection (3), the words “to raise or insist in an adjudication against the estate of a debtor (including any estate vesting under section 86(5) or” are omitted.]

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Amendments (Textual)

128InterpretationS

(1)In this Chapter, unless the context otherwise requires—

  • appointed person” has the meaning given by section 97(2)(b) of this Act;

  • appropriate property register” has the meaning given by section 83(1)(c)(i) of this Act;

  • attached land” has the meaning given by section 81(5)(a) of this Act;

  • decree” has the meaning given in section 221 of this Act (except that paragraphs (c), (g) and (h) of the definition of “decree” in that section do not apply) being a decree which, or an extract of which, authorises land attachment;

  • document of debt” has the meaning given in section 221 of this Act, being a document which, or an extract of which, authorises land attachment;

  • F99...

  • land” has the meaning given by section 82(1) of this Act;

  • long lease” has the same meaning as in section [F1009(2) of the Land Registration etc. (Scotland) Act 2012 (asp 5)];

  • notice of land attachment” has the meaning given by section 83(1) of this Act;

  • [F101officer of court ” means the officer of court appointed by the creditor; ]

  • prescribed sum” has the meaning given by section 92(1)(c) of this Act;

  • property register” means the Land Register of Scotland or, as the case may be, the General Register of Sasines;

  • registering”, in relation to any document, means, unless the context otherwise requires, registering an interest in land or information relating to an interest in land (being an interest or information for which that document provides) in the Land Register of Scotland or, as the case may be, recording the document in the Register of Sasines (cognate expressions being construed accordingly);

  • sum recoverable by the land attachment” has the meaning given by section 81(5)(b) of this Act; and

  • warrant for sale” means a warrant granted under section 97(2) of this Act.

(2)In this Chapter—

(a)any reference to a purchase, sale, conveyance or disposition is, in a case where the attached land is a lease, to be construed as a reference to an assignation; and

(b)any reference to the ownership of land in such a case is to be construed as a reference to the right of lease,

and cognate expressions are to be construed accordingly.

(3)The Scottish Ministers may by order modify the definitions of “decree” and “document of debt” in subsection (1) above by—

(a)adding types of decree or document to;

(b)removing types of decree or document from; or

(c)varying the description of,

the types of decree or document to which those definitions apply.

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Amendments (Textual)

Commencement Information

I34S. 128 partly in force; s. 128 not in force at Royal Assent see s. 227; s. 128(3) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Chapter 3SResidual attachment

Residual attachmentS

129Residual attachmentS

(1)There is to be a form of diligence over property of a debtor to be known as residual attachment.

(2)Residual attachment may be used to attach property (heritable or moveable) only of such description or class as may be specified by the Scottish Ministers by regulations.

(3)The Scottish Ministers may specify any property but only if—

(a)it is transferable; and

(b)it is not—

(i)attachable by; or

(ii)exempt from,

any other diligence.

(4)The Scottish Ministers may not specify—

(a)a right of a debtor as tenant of a dwellinghouse which is the debtor's sole or main residence; or

(b)a right of a debtor as tenant of a croft.

(5)Property which is owned in common by a debtor and a third party may be attached by residual attachment in satisfaction of the debts of the debtor.

(6)Regulations under subsection (2) above may—

(a)vary the description of; or

(b)remove property of such description or class from,

the property which may be attached by residual attachment.

(7)Regulations under subsection (2) above may make further provision, in the case of property of a particular description or class, about—

(a)the content and effect of an application for an order under section 132(2) of this Act (in this Chapter, a “residual attachment order”);

(b)the effect of such an order;

(c)the content and effect of an application for an order under section 136(2) of this Act (in this Chapter, a “satisfaction order”);

(d)the effect of such an order and, in particular—

(i)the methods for and procedures involved in satisfying the sum recoverable by the residual attachment out of the attached property which such an order may authorise;

(ii)the duration of such an order; and

(iii)the disbursement of any sums recovered by such an order;

(e)the powers of the court in relation to residual attachment orders, satisfaction orders and other orders made by virtue of this Chapter; and

(f)the termination of residual attachment.

(8)Regulations under subsection (2) above may make further provision—

(a)about the effect of the making of time to pay directions and time to pay orders on residual attachment; and

(b)about the effect of sequestration on residual attachment including, without prejudice to that generality, provision—

(i)that a residual attachment created during such period before the date of sequestration as may be prescribed is not to be effectual to create a preference for the creditor;

(ii)about the effect of sequestration on the rights of a creditor to insist in a residual attachment created before any such period; and

(iii)about the effect of sequestration on the rights of a creditor to create a residual attachment on or after the date of sequestration.

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Commencement Information

I35S. 129 partly in force; s. 129 not in force at Royal Assent see s. 227; s. 129 in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Application for residual attachment orderS

130Application for residual attachment orderS

(1)A creditor may apply to the court for a residual attachment order but only if—

(a)the debt is constituted by a decree or document of debt;

(b)the debtor has been charged to pay the debt;

(c)the period for payment specified in the charge has expired without payment being made; and

(d)where the debtor is an individual, the creditor has, no earlier than 12 weeks before applying for the residual attachment order, provided the debtor with a debt advice and information package.

(2)An application for a residual attachment order, must—

(a)be in (or nearly as may be in) the form prescribed by Act of Sederunt;

(b)specify the property which it is sought to attach;

(c)state—

(i)how, were a satisfaction order made, the value of that property would be realised; and

(ii)that doing so would result in the sum mentioned in section 134(3) of this Act being paid off or reduced; and

(d)be intimated to—

(i)the debtor; and

(ii)any other person having an interest.

(3)A person who receives intimation of the application may, before the expiry of the period of 14 days beginning with the day on which that intimation is made, lodge objections to the application.

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Commencement Information

I36S. 130 partly in force; s. 130 not in force at Royal Assent see s. 227; s. 130(2)(a) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

131Effect of application for residual attachment orderS

(1)Where an application for a residual attachment order is intimated to a debtor, the debtor must not, during the period mentioned in subsection (2) below, take any of the steps mentioned in subsection (3) below in relation to the property specified in the application.

(2)The period referred to in subsection (1) above is the period—

(a)beginning with the day on which the application is intimated to the debtor; and

(b)ending with the day on which the court—

(i)makes a residual attachment order; or

(ii)dismisses the application.

(3)The steps referred to in subsection (1) above are—

(a)transferring or otherwise disposing of the property;

(b)burdening the property;

(c)granting any licence or sub-licence in relation to the property; or

(d)entering into any agreement to do anything mentioned in paragraph (a), (b) or (c) above in relation to the property.

(4)Any step mentioned in subsection (3) above which is taken in breach of subsection (1) above is void.

(5)Breach by the debtor or any other person of subsection (1) above may be dealt with as a contempt of court.

Residual attachment orderS

Prospective

132Residual attachment orderS

(1)At the hearing on an application under section 130(1) of this Act, the court must not make any order without first giving any person who has lodged objections under subsection (3) of that section an opportunity to be heard.

(2)Subject to subsection (4) below, the court may, if satisfied that the application is in order, make—

(a)a residual attachment order; and

(b)any other order which the court thinks fit in consequence of the residual attachment order.

(3)A residual attachment order must—

(a)specify the property to be attached;

(b)require the creditor to intimate the order to—

(i)the debtor; and

(ii)any other person the court specifies; and

(c)state on whom the schedule of residual attachment must be served.

(4)The court must make an order refusing the application for a residual attachment order if satisfied—

(a)that the property specified in the application (or any part of it) is not capable of being attached by residual attachment; or

(b)that—

(i)were the satisfaction order proposed in the application made, it would not result in the value of that property being realised; or

(ii)were that order made and the value of that property realised, it would not result in the sum recoverable by the residual attachment being paid off or reduced.

(5)Without prejudice to the generality of subsection (2)(b) above, an order under that paragraph may—

(a)prohibit a specified person from acting so as to defeat the residual attachment in whole or in part;

(b)prohibit a specified person from making payments due to the debtor in respect of the property to be attached;

(c)appoint a judicial factor to ingather and manage that property;

(d)require a specified person to produce to the court documents relating to the debtor's right to that property;

(e)authorise the creditor to complete title in the name of the debtor to that property; and

(f)authorise the creditor to take specified action to preserve the value of that property.

133Schedule of residual attachmentS

(1)Where the court grants a residual attachment order, the creditor may serve a schedule of residual attachment.

(2)A schedule of residual attachment must—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt;

(b)be served on—

(i)the debtor; and

(ii)any person specified in the residual attachment order; and

(c)specify the property which is being attached.

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Commencement Information

I37S. 133 partly in force; s. 133 not in force at Royal Assent see s. 227; s. 133(2)(a) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

134Creation and effect of residual attachmentS

(1)A residual attachment is, subject to section 142(1) of this Act, created over the property specified in the schedule of residual attachment (in this Chapter, the “attached property”) at the beginning of the day after the day on which that schedule is served on the debtor.

(2)A residual attachment—

(a)confers on the creditor a right in security over the attached property; and

(b)secures the sum mentioned in subsection (3) below (in this Chapter, the “sum recoverable by the residual attachment”).

(3)That sum is—

(a)the sum for the payment of which the charge was served, together with any interest accruing after such service and before the residual attachment ceases to have effect; and

(b)all expenses which are chargeable against the debtor by virtue of the attachment.

Satisfaction orderS

135Application for satisfaction orderS

(1)The creditor may, where a residual attachment is in effect, apply to the court for a satisfaction order authorising the satisfaction of the sum recoverable by the residual attachment out of the attached property.

(2)An application under subsection (1) above must—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt;

(b)specify the attached property (or part of it) in relation to which the application is made;

(c)state—

(i)how, were a satisfaction order made, the value of that property would be realised; and

(ii)that doing so would result in the sum recoverable by the residual attachment being paid off or reduced; and

(d)be accompanied by—

(i)a copy of the schedule of residual attachment; and

(ii)any other document prescribed by Act of Sederunt.

(3)An application under subsection (1) above must be intimated to—

(a)the debtor;

(b)any person to whom the residual attachment order was intimated; and

(c)any other person having an interest.

(4)A person who receives intimation under subsection (3) above may, before the expiry of the period of 14 days beginning with the day on which intimation is made, lodge objections to the application.

(5)Where provision is made by virtue of this Chapter or by any other enactment permitting the application under subsection (1) above to be an electronic communication, the requirement in paragraph (d) of subsection (2) above that the application be accompanied by the documents mentioned in that paragraph is satisfied by the provision of electronic communications.

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Commencement Information

I38S. 135 partly in force; s. 135 not in force at Royal Assent see s. 227; s. 135(2)(a)(d)(ii) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

136Satisfaction orderS

(1)At the hearing on an application under section 135(1) of this Act, the court must not make any order without first giving any person who has lodged objections under subsection (4) of that section an opportunity to be heard.

(2)Subject to subsection (6) below, the court may, if satisfied that the application is in order, make—

(a)a satisfaction order authorising the satisfaction of the sum recoverable by the residual attachment out of the attached property (or part of it) specified in the order; and

(b)any other order which the court thinks fit in consequence of the satisfaction order.

(3)A satisfaction order must—

(a)specify the attached property to which it applies; and

(b)require the creditor to intimate the order to—

(i)the debtor; and

(ii)any other person the court specifies.

(4)Without prejudice to the generality of subsection (2) above, a satisfaction order may authorise—

(a)the creditor to sell the attached property;

(b)the transfer of ownership of the property to the creditor;

(c)the transfer of income derived from the property to the creditor; or

(d)the creditor to lease or licence the property.

(5)Where the court makes a satisfaction order—

(a)authorising the sale of attached property, it must—

(i)appoint a suitably qualified person (in this Chapter, the “appointed person”) who is willing to execute the order; and

(ii)specify in the order the period within which the attached property is to be sold;

(b)it may appoint a suitably qualified person to report on the market value of the attached property.

(6)The court must make an order refusing the application for a satisfaction order if satisfied that any of the grounds mentioned in subsection (7) below apply.

(7)The grounds referred to in subsection (6) above are—

(a)the residual attachment is invalid;

(b)the residual attachment has ceased to have effect; or

(c)that—

(i)were the satisfaction order proposed in the application made, it would not result in the value of that property being realised; or

(ii)were that order made and the value of that property realised, it would not result in the sum recoverable by the residual attachment being paid off or reduced.

(8)The court may, if satisfied that making a satisfaction order would be unduly harsh to the debtor or any other person having an interest—

(a)make a satisfaction order but suspend its effect for a period not exceeding 1 year beginning with the day on which the order is made; or

(b)make an order refusing the application.

Prospective

137Intimation of court's decisionS

(1)Where a satisfaction order is made, the creditor must, as soon as is reasonably practicable, send a copy of the order to—

(a)the debtor;

(b)where the satisfaction order authorises the sale of the attached property, the appointed person; and

(c)any other person the court specifies in the order.

(2)Where the court refuses to make a satisfaction order, the court must, as soon as is reasonably practicable, send a copy of the order to the debtor and to any other person appearing to the court to have an interest.

Prospective

138Effect of certain refusals of application for satisfaction orderS

Where, under section 136(6) of this Act, an order is made refusing an application for a satisfaction order by virtue of the ground mentioned in paragraph (c) of subsection (7) of that section—

(a)the residual attachment does not, by reason only of that refusal, cease to have effect; and

(b)it is competent for the creditor to make a further application under section 135(1) of this Act.

Termination, discharge etc. of residual attachmentS

Prospective

139Termination by payment etc.S

(1)Subject to subsection (2) below, if the full sum recoverable by the residual attachment is either paid or tendered to—

(a)the creditor;

(b)where one has been appointed, the appointed person; or

(c)[F102an officer of court] or any other person who has authority to receive payment on behalf of the creditor,

the residual attachment ceases to have effect.

(2)Subsection (1) above does not apply unless the sum is paid or tendered before—

(a)where a satisfaction order authorising sale of the attached property is made, a contract of sale of the attached property is concluded; or

(b)in any other case, the attached property is otherwise disposed of.

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Amendments (Textual)

140RecallS

(1)The debtor or any other person having an interest may apply to the court for an order—

(a)recalling a residual attachment; or

(b)restricting such an attachment.

(2)An application under subsection (1) above must—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

(b)be intimated to the creditor.

(3)The court must, if satisfied that the residual attachment—

(a)is invalid;

(b)has been executed incompetently or irregularly; or

(c)has ceased to have effect,

make an order declaring that to be the case and recalling the residual attachment.

(4)The court may, if satisfied that the residual attachment is valid but—

(a)having regard to the sum recoverable by the residual attachment, that significantly more property is attached than need be; and

(b)that is it reasonable to do so,

make an order restricting the effect of a residual attachment to part only of the property to which it relates.

(5)An order of recall or restriction must be in (or as nearly as may be in) the form prescribed by Act of Sederunt.

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Commencement Information

I39S. 140 partly in force; s. 140 not in force at Royal Assent see s. 227; s. 140(2)(a)(5) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

141Duration of residual attachmentS

(1)Subject to sections 139 and 140 of this Act and to subsection (2) below, a residual attachment ceases to have effect on the expiry of the period of 5 years beginning with the day on which the schedule of residual attachment is served on the debtor.

(2)The court may, on the application of the creditor during the period of 2 months ending with the day on which the period mentioned in subsection (1) above ends, extend the period during which a residual attachment has effect.

(3)The court may extend the period for which a residual attachment has effect on more than one occasion and subsections (1) and (2) above apply as if for the reference in subsection (1) above to the day on which the schedule of residual attachment is served on the debtor there were substituted a reference to the day on which the court last extended that period.

Prospective

142Effect of death of debtorS

(1)Where, in relation to a debt—

(a)the creditor has taken any steps towards obtaining a residual attachment order against the debtor; but

(b)has not, before the date of death of the debtor, served a schedule of residual attachment on the debtor,

any such steps cease to have effect; and accordingly any residual attachment order relating to that debt becomes, on that date, void.

(2)Where a residual attachment is created before the death of the debtor, it continues to have effect in relation to the attached property after that death.

(3)The Court of Session may, by Act of Sederunt, provide for the operation of this Chapter in a case to which this section applies and may, in particular—

(a)modify the provisions about intimation of applications for satisfaction orders; and

(b)confer power on the sheriff to dispense with or modify procedures under this Chapter.

General and miscellaneousS

143Expenses of residual attachmentS

(1)The expenses incurred by the creditor in executing a residual attachment are chargeable against the debtor.

(2)Expenses which, in accordance with subsection (1) above, are chargeable against the debtor are recoverable from the debtor by the residual attachment but not by any other legal process.

(3)Where any expenses such as are referred to in subsection (2) above have not been recovered by the time the residual attachment is completed, or otherwise ceases to have effect, they cease to be so recoverable.

(4)In subsection (2) above, the reference to expenses does not include a reference to expenses of service of a charge.

(5)The court may, if satisfied that the debtor has objected to an application for a satisfaction order on frivolous grounds, award expenses, not exceeding such amount as may be prescribed by the Scottish Ministers by regulations, against the debtor.

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Commencement Information

I40S. 143 partly in force; s. 143 not in force at Royal Assent see s. 227; s. 143(5) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Prospective

144AscriptionS

(1)This section applies where any sums are—

(a)recovered by a residual attachment; or

(b)paid to account of the sum recoverable by the residual attachment while it is in effect.

(2)Such sums must be ascribed to the following in the order in which they are mentioned—

(a)the expenses which are chargeable against the debtor incurred in the residual attachment;

(b)any interest which has accrued, at the date of the making of the residual attachment order, on the sum for payment for which the charge was served;

(c)any sum for payment of which that charge was served together with such interest as has accrued after the day mentioned in paragraph (b) above.

145InterpretationS

(1)In this Chapter—

  • appointed person” has the meaning given by section 136(5)(a)(i) of this Act;

  • attached property” has the meaning given by section 134(1) of this Act;

  • court” means—

    (a)

    the Court of Session; or

    (b)

    the sheriff,

    and references to applying to the court are references to applying by petition or, as the case may be, by summary application;

  • croft” has the meaning given by section 3 of the Crofters (Scotland) Act 1993 (c. 44);

  • decree” has the meaning given in section 221 of this Act (except that paragraphs (c), (g) and (h) of the definition of “decree” in that section do not apply) being a decree which, or an extract of which, authorises residual attachment;

  • document of debt” has the meaning given in section 221 of this Act, being a document which, or an extract of which, authorises residual attachment;

  • dwellinghouse” includes any yard, garden, outbuilding or other pertinents;

  • [F103officer of court ” means the officer of court appointed by the creditor; ]

  • F104...

  • residual attachment order” means an order under section 132(2) of this Act;

  • satisfaction order” means an order under section 136(2) of this Act; and

  • sum recoverable by the residual attachment” has the meaning given by section 134(2)(b) of this Act.

(2)The Scottish Ministers may by order modify the definitions of “decree” and “document of debt” in subsection (1) above by—

(a)adding types of decree or document to;

(b)removing types of decree or document from; or

(c)varying the description of,

the types of decree or document to which those definitions apply.

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Amendments (Textual)

Commencement Information

I41S. 145 partly in force; s. 145 not in force at Royal Assent see s. 227; s. 145(2) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10)

Part 5 SInhibition

CreationS

146Certain decrees and documents of debt to authorise inhibition without need for letters of inhibitionS

(1)Inhibition in execution is competent to enforce—

(a)payment of a debt constituted by a decree or document of debt;

(b)subject to subsection (2) below, an obligation to perform a particular act (other than payment) contained in a decree.

(2)Inhibition under subsection (1)(b) above is competent only if the decree is a decree—

(a)in an action containing an alternative conclusion or crave for payment of a sum other than by way of expenses; or

(b)for specific implement of an obligation to convey heritable property to the creditor or to grant in the creditor's favour a real right in security, or some other right, over such property.

(3)In section 3 of the Writs Execution (Scotland) Act 1877 (c. 40) (warrant in extract writ to authorise diligence), after paragraph (b) insert—

(ba)in relation to an ordinary debt within the meaning of the Debtors (Scotland) Act 1987, inhibition against the debtor;.

(4)In section 7(1) of the Sheriff Courts (Scotland) Extracts Act 1892 (c. 17) (warrant in extract decree to authorise diligence), after paragraph (b) insert—

(ba)in relation to an ordinary debt within the meaning of the Debtors (Scotland) Act 1987, inhibition against the debtor;.

(5)In section 87(2) of the 1987 Act (warrant in extract decree to authorise diligence), after paragraph (b) insert—

(ba)in relation to an ordinary debt, inhibition against the debtor;.

(6)It is not competent for the Court of Session to grant letters of inhibition.

(7)In a case where inhibition is executed under subsection (1)(b) above—

(a)sections 165 and 166 of this Act do not apply; and

(b)sections 158, 159, 160 and 163 of this Act have effect as if references to a “debtor” or “creditor” were references to the debtor or creditor in the obligation.

(8)In this Part—

  • decree” has the meaning given by section 221 of this Act, except that paragraphs (c), (g) and (h) of the definition of “decree” in that section do not apply; and

  • document of debt” has the meaning given by section 221 of this Act.

(9)The Scottish Ministers may by order modify the definitions of “decree” and “document of debt” in subsection (8) above by—

(a)adding types of decree or document to;

(b)removing types of decree or document from; or

(c)varying the description of,

the types of decree or document to which those definitions apply.

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Commencement Information

I42S. 146 wholly in force at 22.4.2009; s. 146 not in force at Royal Assent see s. 227; s. 146(9) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 146 otherwise in force at 22.4.2009 by S.S.I. 2009/67, art. 3(1) (with transitional modifications and savings in arts. 4-6)

147Provision of debt advice and information package when executing inhibitionS

Where the debtor is an individual, a schedule of inhibition served in execution of an inhibition under section 146(1) of this Act (other than an inhibition such as is mentioned in section 146(2)(b)) must be accompanied with a debt advice and information package.

148Registration of inhibitionS

(1)An inhibition is registered only by registering—

(a)the schedule of inhibition; and

(b)the certificate of execution of the inhibition,

in the Register of Inhibitions.

(2)References in any enactment to registering or, as the case may be, recording an inhibition must, unless the context otherwise requires, be construed as references to registration in accordance with subsection (1) above.

(3)The—

(a)schedule of inhibition; and

(b)certificate of execution of the inhibition,

must be in (or as nearly as may be in) the form prescribed by the Scottish Ministers by regulations.

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Commencement Information

I43S. 148 wholly in force; s. 148 not in force at Royal Assent see s. 227; s. 148(3) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 148 otherwise in force at 22.4.2009 by S.S.I. 2009/67, art. 3(1) (with transitional modifications and savings in arts. 4-6)

149Date on which inhibition takes effectS

In the Titles to Land Consolidation (Scotland) Act 1868 (c. 101) (in this Chapter, the “1868 Act”), for section 155 (date on which inhibitions take effect) substitute—

155Date on which inhibition takes effect

(1)An inhibition has effect from the beginning of the day on which it is registered unless the circumstances referred to in subsection (2) below apply.

(2)Those circumstances are—

(a)a notice of inhibition is registered in the Register of Inhibitions;

(b)the schedule of inhibition is served on the debtor after that notice is registered; and

(c)the inhibition is registered before the expiry of the period of 21 days beginning with the day on which the notice is registered.

(3)In those circumstances the inhibition has effect from the beginning of the day on which the schedule of inhibition is served.

(4)A notice of inhibition must be in (or as nearly as may be in) the form prescribed..

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Commencement Information

I44S. 149 wholly in force at 22.4.2009; s. 149 not in force at Royal Assent see s. 227; s. 149 in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 149 otherwise in force at 22.4.2009 by S.S.I. 2009/67, art. 3(1) (with transitional modifications and savings in arts. 4-6)

EffectS

150Property affected by inhibitionS

(1)Subject to section 153 of this Act, inhibition may affect any heritable property.

(2)Any enactment or rule of law by virtue of which inhibition may affect other property ceases to have effect.

(3)For the purposes of subsection (1) above and section 157 of the 1868 Act, a person acquires property at the beginning of the day on which the deed conveying or otherwise granting a real right in the property is delivered to that person.

151Effect on inhibition to enforce obligation when alternative decree grantedS

Where—

(a)an inhibition is executed to enforce a decree such as is mentioned in section 146(2)(a) of this Act; and

(b)decree is subsequently granted in terms of the alternative conclusion or crave mentioned in that section,

the inhibition continues to have effect for the purposes of enforcing payment of the debt constituted by that subsequent decree.

152Effect of conversion of limited inhibition on the dependence to inhibition in executionS

[F105(1)F105][F106Subject to subsection (2) below,]F106 where—

(a)a creditor obtains a decree for payment of all or part of a principal sum concluded or craved for in proceedings on the dependence of which warrant for inhibition was granted; and

(b)the warrant was limited to specified property by virtue of section 15J(b) of the 1987 Act (property affected by inhibition on dependence),

[F107any inhibition on the dependence which, on decree, becomes an inhibition in execution of that decree, is no longer limited to that property]

[F108F107(2)Subsection (1) above has effect from the beginning of the day on which–

(a)an extract of the decree (or a copy of the interlocutor certified by the clerk of court); and

(b)a notice in (or as nearly as may be in) the form set out in the Schedule to the Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order 2009,

are registered in the Register of Inhibitions.F108]

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Amendments (Textual)

F105S. 152 renumbered as s. 152(1) (22.4.2009) by The Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order (S.S.I. 2009/219), {art. 2(a)}

F106Words in s. 152(1) inserted (22.4.2009) by The Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order (S.S.I. 2009/219), {art. 2(b)}

F107Words in s. 152(1) substituted (22.4.2009) by The Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order (S.S.I. 2009/219), {art. 2(b)}

F108S. 152(2) inserted (22.4.2009) by The Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order (S.S.I. 2009/219), {art. 2(c)} (with transitional modifications in art. 4)

153Property affected by inhibition to enforce obligation to convey heritable propertyS

Where a decree such as is mentioned in section 146(2)(b) of this Act is granted, any inhibition executed to enforce that decree is limited to the property to which the decree relates.

154Inhibition not to confer a preference in rankingS

(1)An inhibition does not confer any preference in any—

(a)sequestration;

(b)insolvency proceedings; or

(c)other process in which there is ranking.

(2)Subsection (1) above does not affect any preference claimed in—

(a)a sequestration;

(b)insolvency proceedings; or

(c)any other process,

where the inhibition has effect before this section comes into force.

(3)For the avoidance of doubt, in this section, “other process” includes the process, under section 27(1) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35), of applying the proceeds of sale where a creditor in a standard security has effected a sale of the security subjects.

(4)In this section, “insolvency proceedings” means—

(a)winding up;

(b)receivership;

(c)administration; and

(d)proceedings in relation to a company voluntary arrangement,

within the meaning of the Insolvency Act 1986 (c. 45).

155Power of receiver or liquidator in creditors' voluntary winding up to dispose of property affected by inhibitionS

(1)The Insolvency Act 1986 (c. 45) is amended as follows.

(2)After section 61(1) (which sets out the process by which a receiver may dispose of property subject to both the floating charge and to another security, other encumbrance or diligence) insert—

(1A)For the purposes of subsection (1) above, an inhibition which takes effect after the creation of the floating charge by virtue of which the receiver was appointed is not an effectual diligence..

(3)After section 166(1) (which applies the provisions of that section to a liquidator nominated by the company in a creditors' voluntary winding up) insert—

(1A)The exercise by the liquidator of the power specified in paragraph 6 of Schedule 4 to this Act (power to sell any of the company's property) shall not be challengeable on the ground of any prior inhibition..

TerminationS

156Termination of effect of inhibitionS

In section 44(3) of the Conveyancing (Scotland) Act 1924 (c. 27) (limitation of effect of certain entries in the Register of Inhibitions and Adjudications)—

(a)in paragraph (a), the word “inhibitions,”, where it second occurs, is repealed; and

(b)after that paragraph insert—

(aa)all inhibitions shall cease to have effect on the lapse of five years from the date on which they take effect..

157Inhibition terminated by payment of full amount owingS

(1)This section applies where—

(a)an inhibition executed to enforce payment of a debt has effect; and

(b)a sum is paid, in respect of the debt constituted by the decree or document of debt authorising the inhibition, to the creditor, [F109an officer of court] or any other person who has authority to receive payment on behalf of the creditor.

(2)Where the sum paid amounts to the sum of—

(a)the debt (including any interest due under the decree or document of debt);

(b)the expenses incurred by the creditor in executing an inhibition (referred to in this section and in sections 165 and 166 as the “inhibition expenses”); and

(c)the expenses of discharging the inhibition,

the inhibition ceases to have effect.

(3)Any rule of law to the effect that an inhibition ceases to have effect on payment or tender of the debt constituted by the decree or document of debt is abolished.

(4)This section and sections 165 and 166 of this Act do not apply to an inhibition on the dependence of an action.

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Amendments (Textual)

158Inhibition terminated by compliance with obligation to performS

Where—

(a)an inhibition executed to enforce an obligation to perform a particular act (other than payment) contained in a decree has effect; and

(b)the debtor has complied with the decree,

the inhibition ceases to have effect.

159Termination of inhibition when property acquired by third partyS

(1)Notwithstanding section 160 of this Act, an inhibition ceases to have effect (and is treated as never having had effect) in relation to property if a person acquires the property (or a right in the property) in good faith and for adequate consideration.

(2)For the purposes of subsection (1) above, a person acquires property (or a right in the property) when the deed conveying (or granting the right in) the property is delivered to the person.

(3)An acquisition under subsection (1) above may be from the inhibited debtor or any other person who has acquired the property or right (regardless of whether that person acquired in good faith or for value).

(4)For the purposes of subsection (1) above, a person is presumed to have acted in good faith if the person—

(a)is unaware of the inhibition; and

(b)has taken all reasonable steps to discover the existence of an inhibition affecting the property.

BreachS

160Breach of inhibitionS

An inhibited debtor breaches the inhibition when the debtor delivers a deed—

(a)conveying; or

(b)otherwise granting a right in,

property over which the inhibition has effect to a person other than the inhibiting creditor.

161Prescription of right to reduce transactions in breach of inhibitionS

For the avoidance of doubt, section 8(1) of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (extinction of certain rights relating to property by prescriptive period of 20 years) applies to the right of an inhibitor to have a deed granted in breach of an inhibition reduced.

162Registration of notice of litigiosity and discharge of noticeS

After section 159 of the 1868 Act insert—

159ARegistration of notice of summons of action of reduction

(1)This section applies where a pursuer raises an action of reduction of a conveyance or deed of or relating to lands granted in breach of an inhibition.

(2)The pursuer shall, as soon as is reasonably practicable after the summons in the action is signeted—

(a)register a notice of that signeted summons in accordance with section 159 of this Act; and

(b)register in the Land Register of Scotland or, as the case may be, record in the Register of Sasines a copy of that notice.

(3)Where a decree of reduction is not obtained in the action to which the notice relates, the pursuer shall, as soon as is reasonably practicable—

(a)register in the Register of Inhibitions; and

(b)register in the Land Register of Scotland or, as the case may be, record in the Register of Sasines,

a discharge of that notice in (or as nearly as may be in) the form prescribed..

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Commencement Information

I45S. 162 wholly in force at 22.4.2009; s. 162 not in force at Royal Assent see s. 227; s. 162 in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 162 otherwise in force at 22.4.2009 by S.S.I. 2009/67, art. 3(1) (with transitional modifications and savings in arts. 4-6)

163Reduction of lease granted in breach of inhibitionS

(1)This section applies where an inhibited debtor grants a lease of property affected by the inhibition.

(2)A lease which, on the date an action of reduction of the lease is raised, has an unexpired duration of not less than 5 years is reducible.

(3)A lease which, on the date an action of reduction of the lease is raised, has an unexpired duration of less than 5 years may be reduced only if the Court of Session is satisfied that it would be fair and reasonable in all the circumstances to do so.

(4)In calculating the unexpired duration of a lease for the purposes of subsections (2) and (3) above—

(a)any provision in the lease (however expressed) enabling the lease to be terminated earlier than the date on which the lease would otherwise terminate must be disregarded; and

(b)where the lease includes provision (however expressed) requiring the landlord to renew it, the duration of any such renewed lease must be added to the duration of the original lease.

General and miscellaneousS

164Power to prescribe forms in the 1868 ActS

(1)In section 159 of the 1868 Act (no litigiosity before date notice of summons is registered), for the words from “set” to “annexed” substitute “ be in (or as nearly as may be in) the form prescribed. ”.

(2)After section 159A of that Act (which is inserted by section 162 of this Act) insert—

159BPower of the Scottish Ministers to prescribe forms

(1)In sections 155, 159 and 159A of this Act, “prescribed” means prescribed by the Scottish Ministers by regulations.

(2)The power conferred on the Scottish Ministers to make regulations under subsection (1) above is exercisable by statutory instrument.

(3)A statutory instrument containing regulations made under subsection (1) above is subject to annulment in pursuance of a resolution of the Scottish Parliament..

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Commencement Information

I46S. 164 wholly in force at 22.4.2009; s. 164 not in force at Royal Assent see s. 227; s. 164(1)(2) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 164 otherwise in force at 22.4.2009 by S.S.I. 2009/67, art. 3(1) (with transitional modifications and savings in arts. 4-6)

165Expenses of inhibitionS

(1)Subject to subsection (3) below, the inhibition expenses are chargeable against the debtor.

(2)Inhibition expenses are recoverable from the debtor by land attachment or residual attachment executed for the purpose of enforcing payment of the debt to which the inhibition relates but not by any other legal process.

(3)Where a creditor has executed an inhibition, the expenses of only one further inhibition in relation to the debt to which the first inhibition relates are chargeable against the debtor as inhibition expenses.

(4)For the purposes of a sequestration or other process in which there is ranking, the inhibition expenses must be treated as part of the debt constituted by the decree or document of debt authorising the inhibition.

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Commencement Information

I47S. 165 partly in force; s. 165 not in force at Royal Assent see s. 227; s. 165(1)(3)(4) in force at 22.4.2009 by S.S.I. 2009/67, art. 3 (with transitional modifications and savings in arts. 4-6)

166AscriptionS

(1)This section applies where—

(a)an inhibition has effect; and

(b)any sums are paid to account of the sums recoverable from the debtor by virtue of the decree or document of debt authorising the inhibition.

(2)Such sums must be ascribed to the following in the order in which they are mentioned—

(a)the expenses which are chargeable against the debtor incurred in respect of any diligence (other than the inhibition) authorised by the decree or document of debt;

(b)the inhibition expenses;

(c)any interest which has accrued, at the date on which the inhibition takes effect, on the debt constituted by the decree or document of debt;

(d)the debt constituted by the decree or document of debt together with such interest as has accrued after the date on which the inhibition takes effect.

167Keeper's duty to enter inhibition on title sheetS

In section 6 of the Land Registration (Scotland) Act 1979 (c. 33) (content of title sheet)—

(a)in subsection (1)(c), at the beginning insert “ subject to subsection (1A) below, ”; and

(b)after subsection (1) insert—

(1A)The Keeper shall enter an inhibition registered in the Register of Inhibitions in the title sheet only when completing registration of an interest in land where the interest has been transferred or created in breach of the inhibition..

168Inhibition effective against judicial factorS

(1)Notwithstanding the appointment of a judicial factor on a debtor's estate, an inhibition has effect.

(2)But subsection (1) above does not apply in a case where—

(a)a judicial factor is appointed under section 11A of the Judicial Factors (Scotland) Act 1889 (c. 39) (application for judicial factor on deceased person's estate); and

(b)the inhibition was effective against the debtor prior to the debtor's death.

Part 6 SDiligence on the dependence

169Diligence on the dependenceS

After section 15 of the 1987 Act, insert—

Part 1A SDiligence on the dependence

Availability of diligence on the dependenceS
15ADiligence on the dependence of action

(1)Subject to subsection (2) below and to sections 15C to 15F of this Act, the Court of Session or the sheriff may grant warrant for diligence by—

(a)arrestment; or

(b)inhibition,

on the dependence of an action.

(2)Warrant for—

(a)arrestment on the dependence of an action is competent only where the action contains a conclusion for payment of a sum other than by way of expenses; and

(b)inhibition on the dependence is competent only where the action contains—

(i)such a conclusion; or

(ii)a conclusion for specific implement of an obligation to convey heritable property to the creditor or to grant in the creditor's favour a real right in security, or some other right, over such property.

(3)In this Part of this Act, “action” includes, in the sheriff court—

(a)a summary cause;

(b)a small claim; and

(c)a summary application,

and references to “summons”, “conclusion” and to cognate expressions shall be construed accordingly.

15BDiligence on the dependence of petition

(1)Subject to subsection (2) below and to sections 15C to 15F of this Act, the Court of Session may grant warrant for diligence by—

(a)arrestment; or

(b)inhibition,

on the dependence of a petition.

(2)Warrant for—

(a)arrestment on the dependence of a petition is competent only where the petition contains a prayer for payment of a sum other than by way of expenses; and

(b)inhibition on the dependence is competent only where the petition contains—

(i)such a prayer; or

(ii)a prayer for specific implement of an obligation to convey heritable property to the creditor or to grant in the creditor's favour a real right in security, or some other right, over such property.

(3)The provisions of this Act (other than section 15A), of any other enactment and of any rule of law relating to diligence on the dependence of actions shall, in so far as is practicable and unless the contrary intention appears, apply to petitions in relation to which it is competent to grant warrant for such diligence and to the parties to them as they apply to actions and to parties to them.

15CDiligence on the dependence to secure future or contingent debts

(1)It shall be competent for the court to grant warrant for diligence on the dependence where the sum concluded for is a future or contingent debt.

(2)In this section and in sections 15D to 15M of this Act, the “court” means the court before which the action is depending.

Application for diligence on the dependenceS
15DApplication for diligence on the dependence

(1)A creditor may, at any time during which an action is in dependence, apply to the court for warrant for diligence by—

(a)arrestment; or

(b)inhibition,

on the dependence of the action.

(2)An application under subsection (1) above shall—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt;

(b)subject to subsection (3) below, be intimated to and provide details of—

(i)the debtor; and

(ii)any other person having an interest;

(c)state whether the creditor is seeking the grant, under section 15E(1) of this Act, of warrant for diligence on the dependence in advance of a hearing on the application under section 15F of this Act; and

(d)contain such other information as the Scottish Ministers may by regulations prescribe.

(3)An application under subsection (1) above need not be intimated where the creditor is seeking the grant, under section 15E(1) of this Act, of warrant in advance of a hearing on the application under section 15F of this Act.

(4)The court, on receiving an application under subsection (1) above, shall—

(a)subject to section 15E of this Act, fix a date for a hearing on the application under section 15F of this Act; and

(b)order the creditor to intimate that date to—

(i)the debtor; and

(ii)any other person appearing to the court to have an interest.

15EGrant of warrant without a hearing

(1)The court may, if satisfied as to the matters mentioned in subsection (2) below, make an order granting warrant for diligence on the dependence without a hearing on the application under section 15F of this Act.

(2)The matters referred to in subsection (1) above are—

(a)that the creditor has a prima facie case on the merits of the action;

(b)that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of—

(i)the debtor being insolvent or verging on insolvency; or

(ii)the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets,

were warrant for diligence on the dependence not granted in advance of such a hearing; and

(c)that it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to do so.

(3)The onus shall be on the creditor to satisfy the court that the order granting warrant should be made.

(4)Where the court makes an order granting warrant for diligence on the dependence without a hearing on the application under section 15F of this Act, the court shall—

(a)fix a date for a hearing under section 15K of this Act; and

(b)order the creditor to intimate that date to—

(i)the debtor; and

(ii)any other person appearing to the court to have an interest.

(5)Where a hearing is fixed under subsection (4)(a) above, section 15K of this Act shall apply as if an application had been made to the court for an order under that section.

(6)Where the court refuses to make an order granting a warrant without a hearing under section 15F of this Act and the creditor insists in the application, the court shall—

(a)fix a date for such a hearing on the application; and

(b)order the creditor to intimate that date to—

(i)the debtor; and

(ii)any other person appearing to the court to have an interest.

15FHearing on application

(1)At the hearing on an application for warrant for diligence on the dependence, the court shall not make any order without first giving—

(a)any person to whom intimation of the date of the hearing was made; and

(b)any other person the court is satisfied has an interest,

an opportunity to be heard.

(2)The court may, if satisfied as to the matters mentioned in subsection (3) below, make an order granting warrant for diligence on the dependence.

(3)The matters referred to in subsection (2) above are—

(a)that the creditor has a prima facie case on the merits of the action;

(b)that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of—

(i)the debtor being insolvent or verging on insolvency; or

(ii)the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets,

were warrant for diligence on the dependence not granted; and

(c)that it is reasonable in all the circumstances, including the effect granting warrant may have on any person having an interest, to do so.

(4)The onus shall be on the creditor to satisfy the court that the order granting warrant should be made.

(5)Where the court makes an order granting or, as the case may be, refusing warrant for diligence on the dependence, the court shall order the creditor to intimate that order to—

(a)the debtor; and

(b)any other person appearing to the court to have an interest.

(6)Where the court makes an order refusing warrant for diligence on the dependence, the court may impose such conditions (if any) as it thinks fit.

(7)Without prejudice to the generality of subsection (6) above, those conditions may require the debtor—

(a)to consign into court such sum; or

(b)to find caution or to give such other security,

as the court thinks fit.

Execution before serviceS
15GExecution of diligence before service of summons

(1)This section applies where diligence by—

(a)arrestment; or

(b)inhibition,

on the dependence of an action is executed before service of the summons on the debtor.

(2)Subject to subsection (3) below, if the summons is not served on the debtor before the end of the period of 21 days beginning with the day on which the diligence is executed, the diligence shall cease to have effect.

(3)The court may, on the application of the creditor, make an order extending the period referred to in subsection (2) above.

(4)In determining whether to make such an order the court shall have regard to—

(a)the efforts of the creditor to serve the summons within the period of 21 days; and

(b)any special circumstances preventing or obstructing service within that period.

Restriction on property attachedS
15HSum attached by arrestment on dependence

(1)The court may, subject to subsection (2) below, when granting warrant for arrestment on the dependence, limit the sum which may be attached to funds not exceeding such amount as the court may specify.

(2)The maximum amount which the court may specify under subsection (1) above shall be the aggregate of—

(a)the principal sum concluded for;

(b)a sum equal to 20 per cent of that sum or such other percentage as the Scottish Ministers may, by regulations, prescribe;

(c)a sum equal to 1 year's interest on the principal sum at the judicial rate; and

(d)any sum prescribed under subsection (3) below.

(3)The Scottish Ministers may, by regulations, prescribe a sum which appears to them to be reasonable having regard to the expenses likely to be—

(a)incurred by a creditor; and

(b)chargeable against a debtor,

in executing an arrestment on the dependence.

(4)For the avoidance of doubt, section 73F of this Act applies to any sum attached under this section.

15JProperty affected by inhibition on dependence

Where the court grants warrant for diligence by inhibition on the dependence—

(a)in a case where the action is brought for specific implement of an obligation—

(i)to convey heritable property to the creditor;

(ii)to grant in the creditor's favour a real right in security over such property; or

(iii)to grant some other right over such property,

the court shall limit the property inhibited to that particular property; and

(b)in any other case, the court may limit the property inhibited to such property as the court may specify.

Recall etc. of diligence on the dependence.S
15KRecall or restriction of diligence on dependence

(1)This section applies where warrant is granted for diligence on the dependence.

(2)The debtor and any person having an interest may apply to the court for an order—

(a)recalling the warrant;

(b)restricting the warrant;

(c)if an arrestment or inhibition has been executed in pursuance of the warrant—

(i)recalling; or

(ii)restricting,

that arrestment or inhibition;

(d)determining any question relating to the validity, effect or operation of the warrant; or

(e)ancillary to any order mentioned in paragraphs (a) to (d) above.

(3)An application under subsection (2) above shall—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

(b)be intimated to—

(i)the creditor; and

(ii)any other person having an interest.

(4)At the hearing on the application under subsection (2) above, the court shall not make any order without first giving—

(a)any person to whom intimation of the application was made; and

(b)any other person the court is satisfied has an interest,

an opportunity to be heard.

(5)Where the court is satisfied that the warrant is invalid it—

(a)shall make an order—

(i)recalling the warrant; and

(ii)if an arrestment or inhibition has been executed in pursuance of the warrant, recalling that arrestment or inhibition; and

(b)may make an order ancillary to any order mentioned in paragraph (a) above.

(6)Where the court is satisfied that an arrestment or inhibition executed in pursuance of the warrant is incompetent, it—

(a)shall make an order recalling that arrestment or inhibition; and

(b)may make an order ancillary to any such order.

(7)Subject to subsection (8) below, where the court is satisfied that the warrant is valid but that—

(a)an arrestment or inhibition executed in pursuance of it is irregular or ineffective; or

(b)it is reasonable in all the circumstances, including the effect granting warrant may have had on any person having an interest, to do so,

the court may make any order such as is mentioned in subsection (2) above.

(8)If no longer satisfied as to the matters mentioned in subsection (9) below, the court—

(a)shall make an order such as is mentioned in subsection (5)(a) above; and

(b)may make an order such as is mentioned in subsection (5)(b) above.

(9)The matters referred to in subsection (8) above are—

(a)that the creditor has a prima facie case on the merits of the action;

(b)that there is a real and substantial risk enforcement of any decree in the action in favour of the creditor would be defeated or prejudiced by reason of—

(i)the debtor being insolvent or verging on insolvency; or

(ii)the likelihood of the debtor removing, disposing of, burdening, concealing or otherwise dealing with all or some of the debtor's assets; and

(c)that it is reasonable in all the circumstances, including the effect granting warrant may have had on any person having an interest, for the warrant or, as the case may be, any arrestment or inhibition executed in pursuance of it to continue to have effect.

(10)The onus shall be on the creditor to satisfy the court that no order under subsection (5), (6), (7) or (8) above should be made.

(11)In granting an application under subsection (2) above, the court may impose such conditions (if any) as it thinks fit.

(12)Without prejudice to the generality of subsection (11) above, the court may impose conditions which require the debtor—

(a)to consign into court such sum; or

(b)to find such caution or to give such other security,

as the court thinks fit.

(13)Where the court makes an order under this section, the court shall order the debtor to intimate that order to—

(a)the creditor; and

(b)any other person appearing to the court to have an interest.

(14)This section applies irrespective of whether warrant for diligence on the dependence is obtained, or executed, before this section comes into force.

15LVariation of orders and variation or recall of conditions

(1)Where—

(a)an order restricting warrant for diligence on the dependence is made under section 15K(7); or

(b)a condition is imposed by virtue of—

(i)section 15F(6); or

(ii)section 15K(11),

of this Act, the debtor may apply to the court for variation of the order or, as the case may be, variation or removal of the condition.

(2)An application under subsection (1) above shall—

(a)be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and

(b)be intimated to—

(i)the creditor; and

(ii)any other person having an interest.

(3)At the hearing on the application under subsection (1) above, the court shall not make any order without first giving—

(a)any person to whom intimation of the application was made; and

(b)any other person the court is satisfied has an interest,

an opportunity to be heard.

(4)On an application under subsection (1) above, the court may if it thinks fit—

(a)vary the order; or

(b)vary or remove the condition.

(5)Where the court makes an order varying the order or, as the case may be, varying or removing the condition, the court shall order the debtor to intimate that order to—

(a)the creditor; and

(b)any other person appearing to the court to have an interest.

General and miscellaneousS
15MExpenses of diligence on the dependence

(1)Subject to subsection (3)(a) below, a creditor shall be entitled to such expenses as the creditor incurs—

(a)in obtaining warrant for diligence on the dependence; and

(b)where an arrestment or inhibition is executed in pursuance of the warrant, in so executing the arrestment or inhibition.

(2)Subject to subsection (3)(b) below, a debtor shall be entitled, where—

(a)warrant for diligence on the dependence is granted; and

(b)the court is satisfied that the creditor was acting unreasonably in applying for it,

to the expenses incurred in opposing that warrant.

(3)The court may modify or refuse—

(a)such expenses as are mentioned in subsection (1) above if it is satisfied that—

(i)the creditor was acting unreasonably in applying for the warrant; or

(ii)such modification or refusal is reasonable in all the circumstances and having regard to the outcome of the action; and

(b)such expenses as are mentioned in subsection (2) above if it is satisfied as to the matter mentioned in paragraph (a)(ii) above.

(4)Subject to subsections (1) to (3) above, the court may make such finding as it thinks fit in relation to such expenses as are mentioned in subsections (1) and (2) above.

(5)Expenses incurred as mentioned in subsection (1) and (2) above in obtaining or, as the case may be, opposing an application for warrant shall be expenses of process.

(6)Subsections (1) to (5) above are without prejudice to any enactment or rule of law as to the recovery of expenses chargeable against a debtor as are incurred in executing an arrestment or inhibition on the dependence of an action.

15NApplication of this Part to admiralty actions

This Part of this Act (other than sections 15H, 15J and 15M) shall apply, in so far as not inconsistent with the provisions of Part V of the Administration of Justice Act 1956 (c. 46) (admiralty jurisdiction and arrestment of ships), to an arrestment on the dependence of an admiralty action as it applies to any other arrestment on the dependence..

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I48S. 169 partly in force; s. 169 not in force at Royal Assent see s. 227; s. 169 in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(1)(b)(i) (with arts. 4-6, 10); s. 169 in force for certain further purposes at 22.4.2009 by S.S.I. 2009/67, art. 3 (with transitional modifications and savings in arts. 4-6)

170Prescription of arrestmentS

After section 95 of the 1987 Act, insert—

95APrescription of arrestment

(1)Subject to subsection (2) below, an arrestment which is not insisted in prescribes—

(a)where it is on the dependence of an action, at the end of the period of 3 years beginning with the day on which a final interlocutor is obtained by the creditor for payment of all or part of a principal sum concluded for; or

(b)where it is in execution of an extract decree or other extract registered document relating to a due debt, at the end of the period of 3 years beginning with the day on which the arrestment is executed.

(2)Where the arrestment secures or enforces a future or contingent debt due to the creditor, it prescribes, if not insisted in, at the end of the period of 3 years beginning on the day on which the debt becomes due.

(3)In a case where—

(a)a time to pay direction;

(b)an interim order under section 6(3) of this Act; or

(c)a time to pay order,

has been made, there shall be disregarded, in computing the period at the end of which the arrestment prescribes, the period during which the time to pay direction, interim order or time to pay order is in effect.

(4)Nothing in this section shall apply to an earnings arrestment, a current maintenance arrestment or a conjoined arrestment order.

(5)Subsections (1) to (3) above apply irrespective of whether the arrestment is executed, or warrant for it obtained, before this section comes into force.

(6)For the purposes of subsection (1)(a) above, a final interlocutor is obtained when an interlocutor cannot be recalled or altered and is not subject to review..

171Abolition of letters of loosingS

(1)Subject to subsection (2) below, it is no longer competent for any court to loose an arrestment.

(2)Subsection (1) above does not affect—

(a)any enactment or rule of law relating to the loosing of an arrestment of a ship or its cargo; or

(b)the exercise of any other power of the court to recall or restrict an arrestment.

Prospective

172Abolition of adjudication in securityS

Any enactment or rule of law enabling adjudication in security to be used ceases to have effect.

Part 7 SInterim attachment

173Interim attachmentS

After section 9 of the 2002 Act, insert—

Part 1A SInterim attachment

Interim attachmentS
9AInterim attachment

(1)Subject to sections 9B to 9E below, the court may grant warrant for diligence by attachment of corporeal moveable property owned (whether alone or in common) by the debtor on the dependence of an action (such attachment is to be known as interim attachment).

(2)Warrant for interim attachment is competent only where an action contains a conclusion for payment of a sum other than by way of expenses.

(3)This Part of this Act shall apply to petitions in the Court of Session and to parties to them as it applies to actions and to parties to them.

(4)In this Part of this Act—

  • action” includes, in the sheriff court—

    (a)

    a summary cause;

    (b)

    a small claim; and

    (c)

    a summary application,

    and references to “summons”, “conclusion” and to cognate expressions shall be construed accordingly;

  • court” means—

    (a)

    the court before which the action is in dependence; or

    (b)

    where, by virtue of section 9L(1)(a) below, the interim attachment has effect after the creditor obtains a final interlocutor for payment, the court which granted that interlocutor;

  • creditor” means the party who concludes for payment and who seeks, obtains or executes warrant for interim attachment;

  • debtor” means the party against whom the conclusion for payment is addressed; and

expressions used in this Part of this Act have, unless the context otherwise requires, the same meanings as those expressions have in Part 2 of this Act.

9BArticles exempt from interim attachment

It is not competent to attach by interim attachment—

(a)any article within a dwellinghouse;

(b)any