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Bankruptcy and Diligence etc. (Scotland) Act 2007

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Part 15 SActions for removing from heritable property

214Expressions used in this PartS

(1)In this Part—

  • a decree for removing from heritable property” means—

    (a)

    a decree [F1, order] or warrant such as is mentioned in subsection (2) below; or

    (b)

    a document such as is mentioned in subsection (3) below; F2...

  • an action for removing from heritable property” means, in the case of a decree [F3, order] or warrant, the proceedings in which such a decree [F3, order] or warrant is obtained.

  • [F4“defender”, in relation to a decree for removing from heritable property of the type mentioned in subsection (2)(l), means any person against whom the decree is enforceable.]

  • [F5“the First-tier Tribunal” means the First-tier Tribunal for Scotland,]

(2)The decrees [F6, orders] and warrants referred to in subsection (1) above are—

(a)a decree of removing and warrant of ejection obtained in an action of removing;

(b)a decree and warrant of ejection obtained in an action of ejection;

(c)a summary warrant of ejection obtained by virtue of section 36 of the Sheriff Courts (Scotland) Act 1907 (c. 51) (in this section, the “1907 Act”);

(d)a warrant for summary ejection obtained by virtue of section 37 of the 1907 Act;

(e)a decree obtained by virtue of a summary application for removing under section 38 of the 1907 Act;

(f)a decree for recovery of possession of heritable property obtained by virtue of a summary cause under section 35(1)(c) of the Sheriff Courts (Scotland) Act 1971 (c. 58);

(g)an order for possession (within the meaning of section 115(1) of the Rent (Scotland) Act 1984 (c. 58)) obtained by virtue of the Housing (Scotland) Act 1987 (c. 26) or the Housing (Scotland) Act 1988 (c. 43);

(h)a warrant for ejection of a crofter granted under section 22(3) of the Crofters (Scotland) Act 1993 (c. 44);

(i)an order of removal or ejection made under section 84(1)(e) of the Agricultural Holdings (Scotland) Act 2003 (asp 11); F7...

(j)a warrant of ejection obtained by virtue of a summary application under section 38(1) of, or paragraph 3(1) of schedule 5 to, the Housing (Scotland) Act 2006 (asp 1), [F8; F9...

(k)an eviction order issued under section 51 of the Private Housing (Tenancies) (Scotland) Act 2016,][F10; and

(l)a decree of removing and warrant for ejection granted under section 266(8ZA) of the Proceeds of Crime Act 2002.]

being decrees [F6, orders] or warrants which, or extracts of which, authorise the removing or ejection of persons from subjects or premises.

(3)The documents referred to in subsection (1) above are—

(a)a lease, or an extract of a lease, having, by virtue of section 34 of the 1907 Act, the same force and effect as an extract decree of removing; and

(b)a letter of removal having, by virtue of section 35 of the 1907 Act, the same force and effect as an extract decree of removing.

(4)The Scottish Ministers may by order modify subsections (2) and (3) above by—

(a)adding types of decree, warrant or document to;

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

(c)varying the description of,

the types of decree, warrant or document referred to in those subsections.

Textual Amendments

F2Word in s. 214(1) omitted (27.4.2017 for specified purposes, 31.10.2017 for specified purposes, 31.1.2018 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 91(2)(a); S.I. 2017/991, reg. 2(y); S.I. 2018/78, reg. 5(1)(f)

F4Words in s. 214(1) inserted (27.4.2017 for specified purposes, 31.10.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 91(2)(b); S.I. 2017/991, reg. 2(y); S.I. 2018/78, reg. 5(1)(f)

F9Word in s. 214(2)(j) omitted (31.1.2018) by virtue of Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 91(3)(a); S.I. 2018/78, reg. 5(1)(f)

F10S. 214(2)(l) and word inserted (27.4.2017 for specified purposes, 31.10.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 91(3)(b); S.I. 2017/991, reg. 2(y); S.I. 2018/78, reg. 5(1)(f)

Commencement Information

I1S. 214 partly in force; s. 214 not in force at Royal Assent see s. 227; s. 214(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)

I2S. 214(1)-(3) in force at 4.4.2011 by S.S.I. 2011/179, art. 3(a) (with art. 4)

I3S. 214(4) in force at 4.4.2011 in so far as not already in force by S.S.I. 2011/179, art. 3(a) (with art. 4)

215Procedure for execution of removingS

The procedure and practice to be followed in the execution of any decree for removing from heritable property may be regulated and prescribed by Act of Sederunt [F11or by rules made under section 68 or paragraph 4 of schedule 9 of the Tribunals (Scotland) Act 2014] and, without prejudice to that generality, such Act [F12or rules] may, in particular—

(a)prescribe the form of any notices or certificates to be used in or for the purposes of any such execution; and

(b)prescribe the procedure for removal from subjects or premises of any property in or on those subjects or premises.

Textual Amendments

Commencement Information

I4S. 215 partly in force; s. 215 not in force at Royal Assent see s. 227; s. 215 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. 215 in force at 4.4.2011 in so far as not already in force by S.S.I. 2011/179, art. 3(a) (with art. 4)

216Service of charge before removingS

(1)A defender and any effects of the defender may, by virtue of a decree for removing from heritable property, be removed from subjects or premises but only if—

(a)the defender has been charged to remove from those subjects or premises within [F13the appropriate period] after the giving of the charge; and

(b)the period of charge has expired without the defender so removing.

[F14(1A)In subsection (1)(a), “the appropriate period” means—

(a)in the case of a decree for removing from heritable property of the type mentioned in paragraph (l) of section 214(2), 28 days,

(b)in the case of a decree for removing from heritable property of the type mentioned in any other paragraph of that section, 14 days.]

(2)Where—

(a)the subjects or premises are occupied by an occupant deriving right or having permission from the defender;

(b)the defender has been charged, under subsection (1) above, to remove from those subjects or premises; and

(c)the period of charge has expired without the occupant so removing,

that occupant and any effects of that occupant may be removed from the subjects or premises.

[F15(2A)Subsection (2) does not apply to an occupant with an assured tenancy [F16or private residential tenancy] F17... or any effects of that occupant where the decree for removing from heritable property was granted on an application—

(a)to which section 5A of the Heritable Securities (Scotland) Act 1894 (c.44) applies; or

(b)under section 24(1B) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c.35).]

[F18(2B)In subsection (2A)—

  • assured tenancy” has the same meaning as in Part 2 of the Housing (Scotland) Act 1988,

  • private residential tenancy” has the same meaning as in the Private Housing (Tenancies) (Scotland) Act 2016.]

(3)The [F19officer of court] removing the defender, any other occupant and any effects of such a defender or occupant from the subjects or premises—

(a)may, if necessary for the purposes of such removing, open shut and lockfast places; and

(b)must make an inventory of any effects removed.

(4)Where the decree [F20or order] for removing from heritable property is granted by a court [F21or the First-tier Tribunal], the court [F21or the First-tier Tribunal] may, on cause shown, dispense with or vary the period of charge.

(5)It is no longer necessary to obtain from the Court of Session letters of ejection before removing a person by virtue of subsection (1) or (2) above.

(6)The Scottish Ministers may, by regulations, prescribe the form of charge under subsection (1) above.

Textual Amendments

F13Words in s. 216(1)(a) substituted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 92(a); S.I. 2018/78, reg. 5(1)(g)

F14S. 216(1A) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 92(b); S.I. 2018/78, reg. 5(1)(g)

Commencement Information

I6S. 216 partly in force; s. 216 not in force at Royal Assent see s. 227; s. 216(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)

I7S. 216(1)-(5) in force at 4.4.2011 by S.S.I. 2011/179, art. 3(a) (with art. 4)

I8S. 216(6) in force at 4.4.2011 in so far as not already in force by S.S.I. 2011/179, art. 3(a) (with art. 4)

217When removing not competentS

(1)It is not competent to execute a decree for removing from heritable property on—

(a)a Sunday;

(b)a day which is a public holiday in the area in which the decree is to be executed; or

(c)such other day as may be prescribed by Act of Sederunt [F22or by rules made under section 68 or paragraph 4 of schedule 9 of the Tribunals (Scotland) Act 2014].

(2)The execution of such a decree must not—

(a)begin before 8 a.m. or after 8 p.m.; or

(b)be continued after 8 p.m.,

unless the [F23officer of court] has obtained prior authority from the sheriff for the district in which the subjects or premises are situated [F24, or from the First-tier Tribunal,] for such commencement or continuation.

Textual Amendments

Commencement Information

I9S. 217 partly in force; s. 217 not in force at Royal Assent see s. 227; s. 217(1)(c) 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)

I10S. 217(1)(a)(b)(2) in force at 4.4.2011 by S.S.I. 2011/179, art. 3(a) (with art. 4)

I11S. 217(1)(c) in force at 4.4.2011 in so far as not already in force by S.S.I. 2011/179, art. 3(a) (with art. 4)

218Preservation of property left in premisesS

(1)A court [F25or the First-tier Tribunal], when granting decree for removing from heritable property, may direct that the pursuer takes such steps as the court [F25or the First-tier Tribunal] considers appropriate for the preservation of any effects removed from the subjects or premises.

(2)The court [F25or the First-tier Tribunal] may, when making a direction under subsection (1) above, order that the defender is to be liable for any costs incurred in taking such steps as are specified by virtue of that subsection.

[F26(3)In the application of this section to the granting of a decree for removing from heritable property of the type mentioned in section 214(2)(l), “pursuer” means the trustee for civil recovery who is responsible by virtue of section 267(3)(ba) of the Proceeds of Crime Act 2002 for enforcing the decree.]

Textual Amendments

F26S. 218(3) inserted (27.4.2017 for specified purposes, 31.1.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 93; S.I. 2018/78, reg. 5(1)(g)

Commencement Information

I12S. 218 in force at 4.4.2011 by S.S.I. 2011/179, art. 3(a) (with art. 4)

219Caution for pecuniary claimsS

(1)In an action for removing from heritable property, the court may, on cause shown, order the defender to find caution for any payment claimed (other than by way of expenses) by the pursuer for loss arising from the occupation of the subjects or premises by the defender or any other occupant deriving right or having permission from the defender.

(2)Notwithstanding subsection (1) above, it is no longer competent to order a defender to find caution for violent profits.

(3)Where an order is made under subsection (1) above, the defender may provide caution—

(a)by means of a bond of caution or other guarantee; or

(b)by consigning an appropriate sum in court.

(4)For the avoidance of doubt, the loss referred to in subsection (1) above includes loss arising from the lawful occupation of the subjects or premises by the defender or such other occupant.

Commencement Information

I13S. 219 in force at 4.4.2011 by S.S.I. 2011/179, art. 3(a) (with art. 4)

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