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Home Owner and Debtor Protection (Scotland) Act 2010

Home Owner and Debtor Protection (Scotland) Act 2010

2010 asp 6

Introduction

1.These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

The Act

3.The Act is in three Parts—

  • Residential Standard Securities etc.: Creditor’s Rights on Default

  • Sequestration and Trust Deeds

  • General.

Part 1 – Residential Standard Securities Etc.: Creditor’s Rights on Default

4.Part 1 of the Act amends the Heritable Securities (Scotland) Act 1894 (“the 1894 Act”), the Conveyancing and Feudal Reform (Scotland) Act 1970 (“the 1970 Act”) and the Mortgage Rights (Scotland) Act 2001 (“the 2001 Act”).

5.Under section 5 of the 1894 Act a creditor may take proceedings to eject a proprietor in personal occupation of property given in security where the debtor has failed to pay the principal sum or interest due under the security.

6.The 1970 Act is the principal statutory provision dealing with standard securities in Scotland. The 1970 Act provides three ways in which a creditor may seek to repossess the property against which a debtor’s borrowing is secured: calling up a standard security under section 19; serving a notice of default under section 21; and applying to the court for a warrant to exercise remedies on default under section 24.

7.The 2001 Act modifies the 1970 Act and the 1894 Act to allow certain residents to apply to court to suspend enforcement rights of a creditor in a standard security over property used for residential purposes. They can also apply for the continuation of proceedings raised by the creditor relating to those rights. The 2001 Act also makes provision for notifying tenants and other occupiers of enforcement action by a creditor in a standard security.

8.The main effects of Part 1 of the Act are to:

  • Require all repossession cases relating to residential property to call in court, except in cases of voluntary surrender (which require written confirmation that the surrender was voluntary). This ensures shrieval scrutiny on the extent to which creditors have complied with the pre-action requirements. In cases where the debtor appears or is represented it also allows sheriffs to consider wider circumstances about the debtor and those living in the property before any decree for repossession is granted (sections 1, 2 and 3).

  • Set out pre-action requirements for creditors. These require creditors, before applying to repossess a residential property, to provide the debtor with information and to take reasonable steps to avoid repossessions occurring. They also require creditors to refrain from taking repossession proceedings in certain circumstances (section 4).

  • Preserve and extend the right of certain residents other than the debtor (entitled residents) to make representations to a court considering a repossession application (section 5).

  • Provide a right to seek recall of a decree for repossession already granted for the debtor and each entitled resident provided the person seeking recall has made no previous representations to the court (section 6). The creditor is also able to seek recall.

  • Give those facing repossession and entitled residents who make applications to the court the right to be represented in court by an approved lay representative (section 7).

9.A considerable number of technical amendments to the 1894 and 1970 Acts are made to give effect to the above. Much of the 2001 Act is repealed as the relevant provisions will be incorporated in the 1894 and 1970 Acts. In addition to subordinate legislation under the Act, the Sheriff Court Rules Council will be considering making provision in court rules to facilitate the operation of the procedures that the Act introduces.

Section 1 - residential standard securities: restriction of creditor’s remedies

10.Section 1 limits those situations in which a creditor can exercise the rights specified in standard conditions 10(2) and (3) of the standard security (set out in Schedule 3 to the 1970 Act), being the rights to sell or to enter into possession of the security subjects where the borrower is in default. The limitation applies only to property wholly or partially used for residential purposes; rights in relation to other property are unaffected.

11.The limitation provides that the rights can be exercised only where the residential property has been voluntarily surrendered or where a court has granted a warrant under section 24 of the 1970 Act, thereby ensuring that all cases for possession or sale of residential property require a court application. There is an exception for voluntarily surrendered unoccupied property, to allow a debtor to avoid the expense of court proceedings.

12.Section 1(1) amends section 20 of the 1970 Act by inserting a new subsection (2A), to apply this limitation of a creditor’s remedies to the service of a notice calling up a standard security.

13.Section 1(2) amends section 23 of the 1970 Act by inserting a new subsection (4), to apply this limitation of a creditor’s remedies to the service of a notice of default.

14.Section 1(3) of the Act amends the 1970 Act by inserting section 23A. Section 23A(1) specifies the requirements for a residential property to be voluntarily surrendered and section 23A(2) sets out those who must confirm their consent to surrender in writing. Subsections (1) and (2) require that:

  • the property be unoccupied;

  • the debtor and other interested persons (proprietor where not debtor, non entitled spouse or civil partner and cohabitees in terms of section 18 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981) confirm their consent in writing; and

  • the written confirmation certifies that the person: does not occupy the security subjects and is not aware of any occupation; consents to the exercise by the creditor of the creditor’s rights on default; and consents freely and without coercion of any kind.

Section 2 - court applications by creditor for remedies on default

15.Section 2 makes provision about court applications by a creditor under section 24 of the 1970 Act for warrant to exercise the creditor’s remedies where the borrower defaults in a standard security over residential property. It sets out a new procedure applying to such applications, including applications required as a result of section 1 of the Act (i.e. following a calling-up notice or notice of default).

16.Section 2(2) inserts subsections (1A) to (1D) into section 24 of the 1970 Act. Subsection (1C) requires a creditor to fulfil the pre-action requirements specified at section 24A of the 1970 Act (see section 4(1) of the Act) before making a section 24 application in respect of a residential property.

17.Subsection (1D) provides that a section 24 application in relation to a residential property is to be by summary application procedure. This applies regardless of whether the application includes a crave for some other remedy. That ensures that in all cases the court will set a date on which it will hear the case and on which the debtor will have an opportunity to defend the case or make submissions to the court.

18.Sections 2(3) and 2(4) make minor consequential changes to the 1970 Act.

19.Section 2(5) inserts new subsections (5) to (9) into section 24 of the 1970 Act. Subsection (5) confirms that a court may grant any order that it thinks fit on the application but may only grant it if it is satisfied that the pre-action requirements have been complied with and it is satisfied that it is reasonable in the circumstances of the case to grant the application.

20.Subsections (6) and (7) specify the matters to which the court must have regard when considering a creditor’s application in a case where the debtor appears or is represented (see section 5 of the Act for a case where an entitled resident makes an application). The matters in subsection (7) mirror the matters to which a court currently has regard in an application made under the 2001 Act. The matters are currently set out in section 2(2) of the 2001 Act (as amended by S.S.I 2004/468 to include reference to the Debt Arrangement Scheme established under the Debt Arrangement and Attachment (Scotland) Act 2002).

21.Subsection (9) clarifies the effect of a debtor remedying a default (within the meaning of standard condition 9(1)(a) or (b)) before a creditor has been granted decree in respect of a section 24 application in relation to a residential property. In those circumstances the standard security has effect as if the default had not occurred.

Section 3 - court powers in action for possession of residential property

22.Section 3(1)(b) inserts subsections (2) and (3) into section 5 of the 1894 Act. Subsection (2) provides for summary application procedure for proceedings under section 5 in relation to a residential property. This applies regardless of whether the application includes a crave for any other remedy.

23.Subsection (3) requires a creditor to comply with pre-action requirements before making an application. The requirements themselves are inserted as section 5B of the 1894 Act by section 4(2) of the Act.

24.Section 3(2) inserts section 5A into the 1894 Act, which relates to proceedings relating to residential property brought under the 1894 Act. In section 5A—

  • Subsections (2), (3) and (4) provide for the notification that a creditor must give, and the form that it must take, when bringing such proceedings. This sets out in the 1894 Act the requirements which were previously in section 4(4), (5) and (5A) of the 2001 Act.

  • Subsection (5) confirms that a court may grant any order that it thinks fit on the application but may only grant it if it is satisfied that the pre-action requirements have been complied with and it is satisfied that it is reasonable in the circumstances of the case to grant the application.

  • Subsections (6) and (7) specify the matters to which the court must have regard when considering an application in a case where the debtor appears or is represented (see section 5 of the Act for a case where an entitled resident makes an application). They mirror the matters to which the court would currently have regard in an application made under the 2001 Act, and are identical to the matters introduced into the 1970 Act by section 2(5) of the Act.

Section 4 – pre-action requirements

25.Section 4 outlines the pre-action requirements which creditors must satisfy before making an application under section 24(1B) of the 1970 Act or an application under section 5 of the 1894 Act in relation to residential property.

26.Section 4(1) inserts section 24A into the 1970 Act. This relates to proceedings described at section 24(1B) of the 1970 Act (i.e. in relation to residential property). The pre-action requirements at subsections (2) to (6) are that the creditor:

  • provides the debtor with clear information about the terms of the standard security, the amount due (including any arrears and charges in respect of late payment and redemption) and any other obligation under the security in respect of which the debtor is in default;

  • makes reasonable efforts to agree with the debtor proposals for future payments and the fulfilment of any other obligation under the security in respect of which the debtor is in default;

  • refrains from making a section 24 application for repossession or sale where the debtor is taking steps likely to result, within a reasonable period, in the payment of arrears or the principal sum and to fulfil any other obligation for which the debtor is in default;

  • provides the debtor with information about sources of advice and assistance in relation to management of debt;

  • encourages the debtor to contact the local authority in whose area the property is situated.

27.Subsection (7) requires creditors to have regard to guidance issued by Scottish Ministers. Subsection (8) allows Scottish Ministers by subordinate legislation to make further provision about and modify the pre-action requirements, but not to add new categories of pre-action requirements.

28.Section 4(2) inserts section 5B into the 1894 Act. This relates to proceedings described at section 5(2) of the 1894 Act (i.e. residential property). It repeats the pre-action requirements, guidance and powers set out for applications under section 24(1B) of the 1970 Act.

Section 5 – application to court by entitled residents

29.Section 5 makes provision for certain individuals to intervene in an application by a creditor under the 1894 Act or the 1970 Act in relation to residential property. The 2001 Act currently provides that the debtor and certain other residents of the property being possessed or sold can apply to the court for a suspension of the creditor’s rights or a continuation of court proceedings. The Act’s requirement for all possessions or sales to be by court application means that the debtor no longer needs the right to make such an application. Section 5 preserves and extends the 2001 Act rights of the other residents (entitled residents) to make an application to the court.

30.Section 5(1) inserts sections 24B and 24C into the 1970 Act. Section 24B allows entitled residents to apply to the court to continue the proceedings or to make any other order the court thinks fit. It provides that in such an application the court is to have regard to the same matters as it is required to consider if a debtor appears or is represented. These are the matters in new section 24(7) of the 1970 Act, which mirror the matters in section 2(2) of the 2001 Act (to which a court would currently to have regard in an application made under the 2001 Act).

31.Section 24C defines entitled residents. Other than the debtor, these individuals are the same as those who can make an application under section 2 of the 2001 Act.

32.Section 5(2) inserts sections 5C and 5D into the 1894 Act. These sections make provision in respect of applications under the 1894 Act corresponding to that in the new sections 24B and 24C of the 1970 Act.

Section 6 – recall of decree

33.Section 6 makes provision for the recall of a decree following the creditor’s application under section 24(1B) of the 1970 Act or section 5 of the 1894 Act (where section 5A applies). These are actions in respect of residential properties. Recall of a decree has the effect of reviving the original proceedings, thereby again giving the creditor, debtor and entitled residents the opportunity to make representations to the court.

34.Section 6(1) inserts section 24D into the 1970 Act. The debtor or an entitled resident may make an application for the recall of a decree only where they did not appear in the earlier proceedings. The creditor may also apply for recall. The application can be made at any time before the decree has been fully implemented An application for recall of decree can only be made by an entitled resident if they have not already been involved in the proceedings. Further provision will be made by court rules as regards notification of a recall application, which must be given to the creditor and debtor (unless they are the applicant) and to each entitled resident.

35.Section 6(2) inserts section 5E into the 1894 Act. This makes provision in respect of applications under the 1894 Act corresponding to that in new section 24D of the 1970 Act.

Section 7 – representation in repossession proceedings

36.Section 7 allows for the representation of the debtor or entitled resident by an approved lay representative in court proceedings in relation to the possession or sale of a residential property.

37.Section 7(1) inserts section 24E into the 1970 Act. Section 24E(1) allows approved lay representation of debtors and entitled residents in proceedings under section 24(1B) of the 1970 Act (i.e. creditor applications) and section 24D(1) (i.e. applications for recall of decree). Lay representation in these proceedings is not available in any circumstances which are prescribed by the Scottish Ministers.

38.Section 24E(2) requires a lay representative to satisfy the sheriff throughout the proceedings that they are competent to represent the debtor or entitled resident and are authorised to do so.

39.Section 24E(3) defines approved lay representative: an individual approved by a person, named body or description of body prescribed by Scottish Ministers by subordinate legislation. Section 24E(4) enables the Scottish Ministers to require organisations with approved lay representatives to provide information about approvals and withdrawals of approval. Under section 24E(4) the subordinate legislation may also, among other things, make provision about the approval and removal of approval process.

40.Section 7(2) inserts section 5F into the 1894 Act. This makes provision for lay representation in respect of applications to which section 5A applies or applications for recall of decree granted in respect of such an application under the 1894 Act, corresponding to the provision made in new section 24E of the 1970 Act. Lay representation in these proceedings is not available in any circumstances which are prescribed by the Scottish Ministers.

41.Section 7(3) amends section 32 of the Solicitors (Scotland) Act 1980 to ensure that approved lay representatives will not be in breach of the restrictions on unqualified persons preparing certain documents.

Section 8 – minor and consequential amendments

42.Section 8(1) inserts subsections (10A) and (10B) into section 19 the 1970 Act, replacing provisions currently found in section 1(8) of the 2001 Act. These make provision for the shortening of the notice period mentioned in a calling-up notice, stating that this requires the consent in writing of those specified at the inserted subsections (10B)(a) and (b). Section 8(1) also consequentially inserts subsection (12) into section 19, providing that a calling-up notice in relation to residential property expires after 5 years from the date of the notice, to clarify the effect of other changes.

43.Section 8(2) amends section 21 of the 1970 Act to apply section 19(10) and (10B) to notices of default. Section 8(4) repeals provisions in the 2001 Act that are superseded as a consequence of the provision in Part 1 of the Act.

44.Section 8(5) preserves the requirements under section 11 of the Homelessness etc. (Scotland) Act 2003 for lenders to have to notify local authorities when initiating court action to repossess, allowing repeal of related parts of the Mortgage Rights (Scotland) Act 2001

Part 2 – Sequestration and Trust Deeds

45.Part 2 of the Act amends the Bankruptcy (Scotland) Act 1985 (“the 1985 Act”).

46.The 1985 Act is the principal statute dealing with personal insolvency in Scotland. There have been several amendments to the 1985 Act. The most extensive amendments were made by the Bankruptcy (Scotland) Act 1993 and the Bankruptcy and Diligence etc. (Scotland) Act 2007 (“the 2007 Act”). Section 40 of the 1985 Act, which is referred to in the commentary below, was substantially amended by the Civil Partnership Act 2004.

47.A text of the 1985 Act showing amendments made to date is published on the Accountant in Bankruptcy’s website at: http://www.aib.gov.uk/guidance/Legislation/legistlationpostapril08/act1985amended08.

Section 9 – certificate for sequestration

48.Section 9 amends the 1985 Act by introducing a new route into bankruptcy on the basis of a certificate completed by an authorised person. It also removes the existing route into bankruptcy by debtor application with concurring creditors.

49.Section 9(1)(b) repeals section 5(2A) of the 1985 Act to remove the provision that allows a debtor to apply for an award of sequestration on the basis of creditor concurrence (i.e. that a creditor concurs to a debtor’s application for sequestration). Section 9(1)(a) contains a consequential amendment which removes a cross-reference to the repealed section 5(2A).

50.Section 9(1)(c) amends section 5(2B) of the 1985 Act to provide that a debtor may apply to the Accountant in Bankruptcy for an award of sequestration if they have been granted a certificate for sequestration. There may be a prescribed period for a valid application following the grant of a certificate (see new section 5B(5)(c) of the 1985 Act). The existing section 5(2B) requirements for a debtor application for sequestration, together with other requirements of the 1985 Act, will apply in addition to the requirement for a certificate.

51.The effect of the new certificated route and the repeal of the creditor concurrence route is that, under the amended provisions of the 1985 Act, a debtor will be able to apply for their own bankruptcy if they meet the following conditions—

  • they were habitually resident or had an established place of business in Scotland in the 1 year period preceding the date of their application – see section 9(1A) of the 1985 Act,

  • they owe debts totalling at least £1,500 – see section 5(2B)(a) of the 1985 Act and the non-commencement of section 25 of the 2007 Act in article 3(1)(a)(iii)(aa) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (Commencement No. 3, Saving and Transitionals) Order 2008 (S.S.I. 2008/115),

  • no award of bankruptcy has been made against them in the previous 5 years – see section 5(2B)(b) of the 1985 Act, and

  • either—

    • they are “apparently insolvent” as defined in section 7 of the 1985 Act,

    • they have granted a trust deed which has been rejected as a protected trust deed,

    • they meet the low income low asset conditions in section 5A of the 1985 Act, or

    • they have a certificate for sequestration issued within the prescribed period, confirming that they are insolvent and completed by an authorised person (this is the new certificated route).

52.Section 9(1)(d) inserts a new subsection (2F) in section 5 of the 1985 Act. This enables Scottish Ministers by secondary legislation to prescribe the maximum period allowed between the date on which an authorised person signs a certificate for sequestration and the date on which an application is made.

53.Section 9(2) inserts a new section 5B into the 1985 Act which introduces a certificate for sequestration (see below).

54.Section 9(3) amends section 12(1)(b) of the 1985 Act to remove the reference to section 5(2A) which is repealed by section 9(1)(b) of this Act.

New section 5B – Certificate for sequestration

55.Section 5B(1) defines a certificate for sequestration. A certificate for sequestration must be completed by an authorised person. The form of certificate will be prescribed but must state that the debtor can demonstrate that they are unable to pay their debts as they become due.

56.Section 5B(2) provides that an authorised person may not grant a certificate for sequestration unless the debtor has applied to the authorised person for such a certificate. “Debtor” is defined for these purposes by section 73(1) of the 1985 Act and includes both natural persons and entities such as trusts and partnerships which may be sequestrated under section 6 of that Act.

57.Section 5B(3) provides that the authorised person must grant a certificate for sequestration on behalf of a debtor if, and only if, the debtor is able to demonstrate that they are unable to pay their debts as they become due.

58.Section 5B(4) provides for the definition of authorised person by secondary legislation.

59.Section 5B(5) gives Scottish Ministers the power to make regulations in relation to certificates for sequestration in order to—

  • prescribe the classes of people who may grant a certificate for sequestration,

  • make provision about certification by an authorised person, including the form and manner of certificates and the fees, if any, which an authorised person is entitled to charge for granting a certificate or in connection with granting a certificate,

  • prescribe a period for the purpose of section 5(2)(c)(ib) (the period following the grant of a certificate during which a debtor can make an application), and

  • provide different rules in different cases or classes of case.

60.Regulations made under section 5B(5) are subject to the affirmative resolution procedure of the Scottish Parliament (see section 13 of the Act).

Section 10 – trust deeds

61.Section 10 amends the definition of trust deed in section 5(4A) of the 1985 Act (originally inserted by section 3(4) of the Bankruptcy (Scotland) Act 1993).

62.The current definition is restricted to trust deeds which convey the whole of the debtor’s estate to their trustee, except for assets which would not vest in a trustee in sequestration under section 33(1) of the 1985 Act.

63.The new definition is extended to include trust deeds which exclude whole or part of the debtor’s dwellinghouse from being conveyed to the trustee, where a secured creditor holds a security over it and has agreed not to claim under the trust deed.

64.The debtor’s ‘dwellinghouse’ is defined as a dwellinghouse including any yard, garden, outbuilding or other pertinents, which, on the day immediately preceding the date the trust deed was granted, is the sole or main residence of the debtor, and either owned by the debtor (whether alone or in common) or let under a long lease (a lease exceeding 20 years). This is irrespective of whether it is used to any extent by the debtor for the purposes of any profession, trade or business.

65.The extended definition of trust deed will apply to those provisions in the 1985 Act which apply to trust deeds generally, that is sections 34 (gratuitous alienations), 36 (unfair preferences) and 70 (supply of utilities) and Schedule 1 (determination of creditors’ claims) under Schedule 5, paragraph 4.

66.The extended definition will also apply to protected trust deeds. Discharge of debts under a protected trust deed which excludes a secured creditor or an asset which is subject to a security will not affect the rights of the secured creditor – see regulation 19(2) of the Protected Trust Deeds (Scotland) Regulations 2008 (S.S.I. 2008/143).

Section 11 – power in relation to debtor’s family home

67.Section 11 amends section 40 of the 1985 Act. Under section 33(1) of that Act the debtor’s estate as at the date of sequestration vests in their trustee, and this will include interest in a family home which is registered in the debtor’s name. It is part of the trustee’s function under section 3(1)(a) of that Act to “recover, manage and realise the debtor’s estate”. The Accountant in Bankruptcy’s Notes for Guidance of Trustees (see http://www.aib.gov.uk/guidance/DAS) states that if a trustee has identified that it would be in the financial interests of creditors to realise any equity in the family home, the trustee must take appropriate action to secure or realise that asset (Note 6.10.3). Section 39A of the 1985 Act, inserted by section 19 of the 2007 Act, provides that any right or interest in the debtor’s family home is reinvested in the debtor three years after the date of sequestration if no action is taken by the trustee. “Family home” is defined in section 40(4)(a) of the 1985 Act.

68.Section 40 of the 1985 Act currently provides that before a trustee in sequestration sells or disposes of any right or interest in the debtor’s family home, the trustee must obtain the consent of an occupant spouse, civil partner, former spouse, or former civil partner. If there is no such person and the debtor occupies the house with a child of the family, the trustee has to seek the debtor’s consent. “Child of the family” is defined in section 40(4)(b) of the 1985 Act. If consent cannot be obtained, the trustee must apply to the sheriff for permission to sell a family home. The sheriff, having considered the circumstances of the case, may refuse the trustee’s application, grant the application, or postpone granting it for up to one year.

69.Section 11(a) amends section 40 of the 1985 Act so that it applies to trust deeds as it applies to bankruptcies. Under section 4(1)(a) of the Trusts (Scotland) Act 1921, a trustee has a general power to sell the trust estate. The amendment to section 40 will require trustees under trust deeds which fall within the new definition to seek the relevant consent or the permission of the sheriff in the same way as a trustee in bankruptcy.

70.Section 11(b) amends section 40(2) of the 1985 Act to increase from one year to three years the maximum period that a sheriff can postpone the granting of an application by a trustee (in sequestration or under a trust deed) to sell a debtor’s family home without the relevant consent.

71.Section 11(c) inserts new subsections (3A) and (3B) into section 40 of the 1985 Act. Section 11 of the Homelessness (Scotland) Act 2003 provides that when a landlord raises repossession proceedings, the landlord must give notice to the local authority. The schedule to the 2003 Act imposes a similar duty on creditors taking steps to enforce standard securities. The form of notice for section 11 of the 2003 Act is prescribed in the Notice to Local Authorities (Scotland) Regulations 2008 (S.S.I. 2008/324).

72.The new subsection (3A) imposes a similar duty on the trustees of bankrupt estates or under trust deeds. The new subsection (3B) provides that Scottish Ministers may prescribe the form used by trustees to notify local authorities. Regulations made under section 40(3B) will be subject to the negative resolution procedure of the Scottish Parliament under section 72(1) of the 1985 Act.

73.Section 11(d) inserts a definition of “local authority” and modifies the definition of “relevant date” in the list of definitions in section 40(4) of the 1985 Act.

Section 12 – abolition of certain requirements to advertise in Edinburgh Gazette

74.Section 12 repeals sections 15(6) and 25(6) of the 1985 Act. Section 15(6) requires a trustee in sequestration to advertise the award of sequestration in the Edinburgh Gazette. The advert must contain the information prescribed by regulation 11 of the Bankruptcy (Scotland) Regulations 2008 (S.S.I. 2008/82). Section 25(6) requires a replacement trustee to advertise their appointment in the Edinburgh Gazette in the form prescribed as Form 5 to the those Regulations.

75.There are other requirements to advertise in the Edinburgh Gazette which are not affected by section 12 of the Act in sections 16(3), 29(2), 45(3) and Schedule 4 of the 1985 Act. There is also a requirement to advertise trust deeds in the Edinburgh Gazette before they become protected trust deeds (regulation 7 of the Protected Trust Deeds (Scotland) Regulations 2008 (S.S.I. 2008/143)).  The Scottish Government has indicated its intention to amend S.S.I. 2008/143 so that publicity requirements for protected trust deeds are in line with those applying to sequestrations following the section 12 amendments.

Section 13 – regulations under the 1985 Act

76.Section 13 makes provision about the Parliamentary procedure for regulations made under the provisions of the 1985 Act modified by Part 2 of the Act and modifies the power in the 1985 Act to make regulations in relation to protected trust deeds.

77.Section 13(1) amends section 72 of the 1985 Act to provide that the following regulations made by Scottish Ministers will be subject to affirmative parliamentary procedure—

  • section 5B(5) of the 1985 Act (as inserted by section 9(3) of the Act), and

  • paragraph 5(2)(aa) of Schedule 5 to the 1985 Act (as inserted by section 13(2)).

78.Section 13(2) amends the regulation making power in paragraph 5 of Schedule 5 to the 1985 Act. The amendment allows regulations made in relation to protected trust deeds to make different provisions for different cases or classes of case. This reflects the amendment to section 5(4A) of the 1985 Act made by section 10 of this Act in recognition of the additional types of trust deed which regulations about protected trust deeds will have to cover.

Part 3 – General

79.Part 3 of the Act confirms that the Act binds the Crown as creditor and sets out ancillary provision giving Scottish Ministers power to make supplemental, incidental, consequential, transitory, transitional or saving provision in relation to the Act. This includes the power to modify other enactments as required for these purposes. This is subject to affirmative procedure where the supplemental, incidental or consequential power is used.

80.Part 3 also contains definitions, the short title and provisions for commencement of the Act. Part 3 comes into force on Royal Assent and the other provisions come into force such day or days as Ministers appoint.

Parliamentary History

81.The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Bill for this Act, the dates on which the proceedings at that Stage took place, the references to the Official Report of those proceedings, the dates on which Committee Reports and other papers relating to the Bill were published, and references to those Reports and other papers.

Proceedings and ReportsReference
Introduction
Bill as introduced, 1 October 2009http://www.scottish.parliament.uk/s3/bills/32-homeOwner/b32s3-introd.pdf
SPICe Briefing (SB 09-73) on the Bill, as introduced 22 October 2009http://www.scottish.parliament.uk/business/research/briefings-09/SB09-73.pdf
Stage 1
(a) Local Government & Communities Committee
26th Meeting, 28 October 2009http://www.scottish.parliament.uk/s3/committees/lgc/or-09/lg09-2602.htm#Col2491
27th Meeting, 4 November 2009http://www.scottish.parliament.uk/s3/committees/lgc/or-09/lg09-2702.htm#Col2547
28th Meeting, 10 November 2009http://www.scottish.parliament.uk/s3/committees/lgc/or-09/lg09-2802.htm#Col2571
29th Meeting, 11 November 2009http://www.scottish.parliament.uk/s3/committees/lgc/or-09/lg09-2902.htm#Col2602
(b) Subordinate Legislation Committee
26th Meeting, 6 October 2009http://www.scottish.parliament.uk/s3/committees/subleg/or-09/su09-2602.htm#Col701
27th Meeting, 27 October 2009http://www.scottish.parliament.uk/s3/committees/subleg/or-09/su09-2702.htm#Col744
(c) Finance Committee
26th Meeting, 17th November 2009http://www.scottish.parliament.uk/s3/committees/finance/or-09/fi09-2602.htm#Col1678
Stage 1 Report (Local Government & Communities Committee) – includes reports from Subordinate Legislation Committee and Finance Committeehttp://www.scottish.parliament.uk/s3/committees/lgc/reports-09/lgr09-16-01.htm
(d) Consideration by Parliament
Stage 1 Debate, 17 December 2009http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-09/sor1217-02.htm#Col22360
After Stage 1
Subordinate Legislation Committee Official Report, 26 January 2010http://www.scottish.parliament.uk/s3/committees/subleg/or-10/su10-0302.htm#Col843
Stage 2
(a) Local Government and Communities Committee
3rd Meeting, 27 January 2010http://www.scottish.parliament.uk/s3/committees/lgc/or-10/lg10-0302.htm#Col2753
Bill as amended at Stage 2,  28 January 2010http://www.scottish.parliament.uk/s3/bills/32-homeOwner/b32as3-stage2.pdf
SPICe Briefing SB 10-11 on Bill (Parliamentary Consideration prior to Stage 3) published 4 February 2010http://www.scottish.parliament.uk/business/research/briefings-10/SB10-11.pdf
10th Report of the Subordinate Legislation Committee, 5 February 2010http://www.scottish.parliament.uk/s3/committees/subleg/reports-10/sur10-10.htm
Stage 3
Consideration by Parliament
Stage 3 Debate, 11 February 2010http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-10/sor0211-02.htm#Col23728
Bill passed, 11 February 2010http://www.scottish.parliament.uk/s3/bills/32-homeOwner/b32bs3-aspassed.pdf
Royal Assent, 18 March 2010

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