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Bankruptcy and Diligence etc. (Scotland) Act 2007

Section 191 – Money in common ownership

633.Section 191(1) permits money which is owned in common between a debtor and third party to be attached. Common ownership means that more than one person owns a share of the money.

634.Subsection (2) permits a third party who owns money in common with a debtor to buy out the debtor’s share in the money so that the third party becomes the sole owner. This is done by paying the judicial officer an amount equal to the debtor’s interest in the money. Before being able to buy out the debtor’s share, the third party must first satisfy the officer that the third party is a part owner of the money. But, if the officer is not satisfied, the third party can apply to the sheriff and if the sheriff is satisfied as to the third party’s ownership the buy out can go ahead.

635.Subsection (3) provides for the third party to apply to the sheriff for an order declaring the attachment of money owned in common to be unduly harsh to the third party. The application has to be made before the money is paid to the creditor under a payment order or is realised under an order for immediate realisation (see section 181). If the sheriff makes such an order the money attachment ceases in relation to the money owned in common.

636.Under subsection (4), where the third party buys out the debtor’s interest in money under subsection (2) or where a sheriff makes an order under subsection (3), the officer is permitted to attach other money owned and kept by the debtor at the place where the original attachment was carried out. This is an exception to the normal rule in section 176(3) that a second money attachment in the same place is not allowed.

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