Bankruptcy and Diligence etc. (Scotland) Act 2007

216 Service of charge before removing S

(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 [F1 the appropriate period] after the giving of the charge; and

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

[F2 (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.

[F3 (2A) Subsection (2) does not apply to an occupant with an assured tenancy [F4 or private residential tenancy] F5 ... 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).]

[F6 (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 [F7 officer 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 [F8 or order] for removing from heritable property is granted by a court [F9 or the First-tier Tribunal], the court [F9 or 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

F1 Words 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)

F2 S. 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)

F3 S. 216(2A) inserted (4.4.2011) by Housing (Scotland) Act 2010 (asp 17), ss. 152(3), 166(2); S.S.I. 2011/96, art. 2, Sch.

F4 Words in s. 216(2A) inserted (1.12.2017) by Private Housing (Tenancies) (Scotland) Act 2016 (asp 19), s. 79(2), sch. 4 para. 10(3)(a)(i); S.S.I. 2017/346, reg. 2, sch.

F5 Words in s. 216(2A) repealed (1.12.2017) by Private Housing (Tenancies) (Scotland) Act 2016 (asp 19), s. 79(2), sch. 4 para. 10(3)(a)(ii); S.S.I. 2017/346, reg. 2, sch.

F6 S. 216(2B) inserted (1.12.2017) by Private Housing (Tenancies) (Scotland) Act 2016 (asp 19), s. 79(2), sch. 4 para. 10(3)(b); S.S.I. 2017/346, reg. 2, sch.

F7 Words in s. 216(3) substituted (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 para. 24(2); S.S.I. 2011/30, art. 3(1)(3), Sch. 1

F8 Words in s. 216(4) inserted (6.3.2019) by The First-tier Tribunal for Scotland Housing and Property Chamber (Incidental Provisions) Regulations 2019 (S.S.I. 2019/51), regs. 1, 6(4)(a)

F9 Words in s. 216(4) inserted (6.3.2019) by The First-tier Tribunal for Scotland Housing and Property Chamber (Incidental Provisions) Regulations 2019 (S.S.I. 2019/51), regs. 1, 6(4)(b)

Commencement Information

I1 S. 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)

I2 S. 216(1)-(5) in force at 4.4.2011 by S.S.I. 2011/179, art. 3(a) (with art. 4)

I3 S. 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)