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Bankruptcy and Diligence etc. (Scotland) Act 2007

Section 102 – Warrant for sale of attached land owned in common

309.Section 102 applies where the land specified in an application for warrant to sell attached land is owned in common by the debtor and another person or persons. Land owned in common may be capable of being separated into part owned by the debtor and part owned by the co-owner. Where this is possible, the debtor’s part may be sold. Where this is not possible, the whole land would have to be sold and the proceeds of sale divided, with the debtor’s share going to pay the sum recoverable by the land attachment and the co-owner’s share being paid to that co-owner.

310.Subsection (2) provides that, subject to subsection (3), the sheriff may make an order under section 97(2) granting warrant for sale of the land owned in common.

311.Subsection (3) provides that the sheriff must specify in the order whether the warrant authorises the division of the land owned in common and the sale only of the part belonging to the debtor or sale of all the land owned in common and, subject to subsection (5), division of the proceeds.

312.Subsection (4) provides that, where the warrant authorises division of the land, from the day on which the order granting the warrant is made the debtor’s part will be subject to the land attachment and the remaining land will be released from it. The warrant will apply as if the land specified in it were the debtor’s part and the warrant for sale granted were warrant for sale of that part.

313.Subsection (5) provides that, where the warrant authorises the sale of the land owned in common and a division of the proceeds, the appointed person must pay the other owner of the land the share of the proceeds of sale due to that owner and deal, as specified in section 116, with the share of proceeds that would be due to the debtor. The appointed person’s duty to pay to the common owner the common owner’s share of the proceeds is subject to the rights of any creditor with a security over the third party’s interest in the land.

314.Subsections (6) and (7) make further provision providing that a common owner of common property may buy out the attached property and sets out the amount payable to the appointed person by such an owner if the whole land is bought by that owner and the proceeds fall to be divided.

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