8 Interests of heritable creditors.S
(1)The rights of a third party with an interest in the matrimonial home as a creditor under a secured loan in relation to the non-performance of any obligation under the loan shall not be prejudiced by reason only of the occupancy rights of the non-entitled spouse; but where a non-entitled spouse has or obtains occupation of a matrimonial home and—
(a)the entitled spouse is not in occupation; and
(b)there is a third party with such an interest in the matrimonial home,
the court may, on the application of the third party, make an order requiring the non-entitled spouse to make any payment due by the entitled spouse in respect of the loan.
(2)This section shall not apply [F1to secured loans in respect of which the security was granted prior to the commencement of section 13 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985] unless the third party in granting the secured loan acted in good faith and . . . F2 there was produced to the third party by the entitled spouse—
(a)an affidavit sworn or affirmed by the entitled spouse declaring that there is no non-entitled spouse; or
(b)a renunciation of occupancy rights or consent to the taking of the loan which bears to have been properly made or given by the non-entitled spouse.
[F3(2A)This section shall not apply to secured loans in respect of which the security was granted after the commencement of section 13 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 unless the third party in granting the secured loan acted in good faith and . . . F4 there was produced to the third party by the grantor—
(a)an affidavit sworn or affirmed by the grantor declaring that the security subjects are not [F5or were not at the time of the granting of the security] a matrimonial home in relation to which a spouse of the grantor has [F6or had] occupancy rights; or
(b)a renunciation of occupancy rights or consent to the granting of the security which bears to have been properly made or given by the non-entitled spouse.
(2B)for the purposes of subsections (2) and (2A) above, the time of granting a security, in the case of a heritable security, is the date of delivery of the deed creating the security.]
Textual Amendments
F1Words inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 49:6), ss. 13(7), 60(6)
F2Words repealed by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2, 68A:2), s. 74, Sch. 8 para. 31(2)(a), Sch. 9
F3S. 8(2A)(2B) inserted by Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73, SIF 49:6), ss. 13(8), 60(6)
F4Words repealed by Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40, SIF 76:2, 68A:2), s. 74, Sch. 8 para. 31(2)(b)(i), Sch. 9