Search Legislation

Home Owner and Debtor Protection (Scotland) Act 2010

What Version

 Help about what version

Opening Options

 Help about opening options

Status:

This is the original version (as it was originally enacted).

5Application to court by entitled residents

This section has no associated Explanatory Notes

(1)After section 24A of the 1970 Act (inserted by section 4 of this Act) insert—

24BSection 24(1B) applications: application to court by entitled residents

(1)An entitled resident may, in proceedings on an application under section 24(1B) of this Act, apply to the court to continue the proceedings or make any other order that the court thinks fit, despite not being called as a defender in the application.

(2)In determining an application under subsection (1) above the court is to have regard in particular to the matters set out in subsection (7) of section 24, reading the first reference to the debtor in paragraph (b) as including a reference to the entitled resident.

(3)Subsection (2) above does not affect—

(a)any power that the court may have; or

(b)any rights that an entitled resident may have,

under any other enactment or rule of law.

24CEntitled residents: definition

(1)For the purposes of sections 24B, 24D and 24E, an entitled resident is a person whose sole or main residence is the security subjects (in whole or in part) and who is—

(a)the proprietor of the security subjects (where the proprietor is not the debtor in the standard security);

(b)the non-entitled spouse of the debtor or the proprietor of security subjects which are (in whole or in part) a matrimonial home;

(c)the non-entitled civil partner of the debtor or the proprietor of security subjects which are (in whole or in part) a family home;

(d)a person living together with the debtor or the proprietor as husband and wife;

(e)a person living together with the debtor or the proprietor in a relationship which has the characteristics of the relationship between civil partners;

(f)a person who lived together with the debtor or the proprietor in a relationship described in paragraph (d) or (e) if—

(i)the security subjects (in whole or in part) are not the sole or main residence of the debtor or the proprietor;

(ii)the person lived together with the debtor or the proprietor throughout the period of 6 months ending with the date on which the security subjects ceased to be the sole or main residence of the debtor or the proprietor; and

(iii)the security subjects (in whole or in part) are the sole or main residence of a child aged under 16 who is a child of both parties in that relationship.

(2)In this section—

  • “child” includes a stepchild and any person brought up, or treated, by both parties to the relationship as their child;

  • “family home” has the meaning given by section 135(1) of the Civil Partnership Act 2004;

  • “matrimonial home” has the meaning given by section 22 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981;

  • “non-entitled civil partner” has the same meaning as “non-entitled partner” in section 101(1) of the Civil Partnership Act 2004;

  • “non-entitled spouse” has the meaning given by section 1 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981..

(2)After section 5B of the 1894 Act (inserted by section 4 of this Act) insert—

5CApplication to court by entitled residents

(1)An entitled resident may, in proceedings on an application to which section 5A applies, apply to the court to continue the proceedings or make any other order that the court thinks fit, despite not being called as a defender in the application.

(2)In determining an application under subsection (1) of this section the court is to have regard in particular to the matters set out in subsection (7) of section 5A, reading the first reference to the debtor in paragraph (b) as including a reference to the entitled resident.

(3)Subsection (2) does not affect—

(a)any power that the court may have, or

(b)any rights that an entitled resident may have,

under any other enactment or rule of law.

5DEntitled residents: definition

(1)For the purposes of sections 5C, 5E and 5F, an entitled resident is a person whose sole or main residence is the security subjects (in whole or in part) and who is—

(a)the proprietor of the security subjects (where the proprietor is not the debtor in the security),

(b)the non-entitled spouse of the debtor or the proprietor of security subjects which are (in whole or in part) a matrimonial home,

(c)the non-entitled civil partner of the debtor or the proprietor of security subjects which are (in whole or in part) a family home,

(d)a person living together with the debtor or the proprietor as husband and wife,

(e)a person living together with the debtor or the proprietor in a relationship which has the characteristics of the relationship between civil partners,

(f)a person who lived together with the debtor or the proprietor in a relationship described in paragraph (d) or (e) if—

(i)the security subjects (in whole or in part) are not the sole or main residence of the debtor or the proprietor,

(ii)the person lived together with the debtor or the proprietor throughout the period of 6 months ending with the date on which the security subjects ceased to be the sole or main residence of the debtor or the proprietor, and

(iii)the security subjects (in whole or in part) are the sole or main residence of a child aged under 16 who is a child of both parties in that relationship.

(2)In this section—

  • “child” includes a stepchild and any person brought up, or treated, by both parties to the relationship as their child,

  • “family home” has the meaning given by section 135(1) of the Civil Partnership Act 2004,

  • “matrimonial home” has the meaning given by section 22 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981,

  • “non-entitled civil partner” has the same meaning as “non-entitled partner” in section 101(1) of the Civil Partnership Act 2004,

  • “non-entitled spouse” has the meaning given by section 1 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981..

Back to top

Options/Help

Print Options

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made):The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

See additional information alongside the content

Show Explanatory Notes for Sections: Displays relevant parts of the explanatory notes interweaved within the legislation content.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Notes

Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources