Citation, commencement and interpretation
1. This Order may be cited as the Home Owner and Debtor Protection (Scotland) Act 2010 (Transitional and Saving Provisions) Order 2010 and comes into force on 30th September 2010.
2. In this Order—
“the 1894 Act” means the Heritable Securities (Scotland) Act 1894(1);
“the 1970 Act” means the Conveyancing and Feudal Reform (Scotland) Act 1970(2);
“the 1985 Act” means the Bankruptcy (Scotland) Act 1985(3);
“the 2001 Act” means the Mortgage Rights (Scotland) Act 2001(4);
“the 2010 Act” means the Home Owner and Debtor Protection (Scotland) Act 2010; and
“the relevant date” means 30th September 2010.
Effect of this Order
3. The coming into force of the provisions specified in the Home Owner and Debtor Protection (Scotland) Act 2010 (Commencement) Order 2010(5) are subject to the transitional and saving provisions in articles 4 to 7 of this Order.
Saving provision relating to court applications made before the relevant date
4. Where a creditor has made an application to the court under section 5 of the 1894 Act or section 24(1) of the 1970 Act before the relevant date, the provisions of Part 1 of the 2010 Act do not apply in respect of that application.
Transitional and saving provisions relating to default before the relevant date
5. Where before the relevant date a creditor has served a calling-up notice under section 19 of the 1970 Act or a notice of default under section 21 of the 1970 Act, in respect of a standard security over land or a real right in land used to any extent for residential purposes—
(a)the provisions of sections 1 and 8 of the 2010 Act do not apply in relation to the calling-up notice or notice of default; but
(b)if an application is made to the court under section 24(1B) of the 1970 Act or section 5(1) of the 1894 Act, the repeals made by section 8(4) of the 2010 Act (repeals of sections of the 2001 Act) and the amendments made by section 8(5) of the 2010 Act (amendment of the Homelessness (Scotland) Act 2003(6)) have effect in relation to the court application.
6. Where a debtor has entered into default before the relevant date and—
(a)an application is to be made to the court under section 5(1) of the 1894 Act by a creditor in a security over land or a real right in land used to any extent for residential purposes; or
(b)an application is to be made to the court under section 24(1B) of the 1970 Act,
then for the purposes of section 24(1C) of the 1970 Act and section 5(3) of the 1894 Act, article 2(4) of the Application by Creditors (Pre-Action Requirements) (Scotland) Order 2010(7) applies subject to the modification that any required information which has not been provided at any time following the default and before the relevant date must be provided as soon as is reasonably practicable on or after the relevant date.
Transitional and saving provisions in respect of sequestrations and trust deeds
7.—(1) The repeal of section 5(2A) of the 1985 Act, by section 9(1)(a) and (b) of the 2010 Act, does not apply in respect of debtor applications under section 5(2A) of the 1985 Act received by the Accountant in Bankruptcy within 30 days after the coming into force of the repeal provided the concurrence of the qualified creditor or creditors referred to in that subsection was prior to the coming into force of the repeal.
(2) The amendments to the 1985 Act effected by section 10 of the 2010 Act, apply only in respect of trust deeds entered into after the coming into force of section 10 of the 2010 Act.
(3) The repeals of the 1985 Act effected by section 12 of the 2010 Act do not affect sequestrations awarded prior to the coming into force of that section.
ALEX NEIL
Authorised to sign by the Scottish Ministers
St Andrew’s House,
Edinburgh
3rd September 2010