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Companies Act 2006

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This is the original version (as it was originally enacted).

Charges requiring registration

878Charges created by a company

(1)A company that creates a charge to which this section applies must deliver the prescribed particulars of the charge, together with a copy certified as a correct copy of the instrument (if any) by which the charge is created or evidenced, to the registrar for registration before the end of the period allowed for registration.

(2)Registration of a charge to which this section applies may instead be effected on the application of a person interested in it.

(3)Where registration is effected on the application of some person other than the company, that person is entitled to recover from the company the amount of any fees properly paid by him to the registrar on the registration.

(4)If a company fails to comply with subsection (1), an offence is committed by—

(a)the company, and

(b)every officer of the company who is in default.

(5)A person guilty of an offence under this section is liable—

(a)on conviction on indictment, to a fine;

(b)on summary conviction, to a fine not exceeding the statutory maximum.

(6)Subsection (4) does not apply if registration of the charge has been effected on the application of some other person.

(7)This section applies to the following charges—

(a)a charge on land or any interest in such land, other than a charge for any rent or other periodical sum payable in respect of the land,

(b)a security over incorporeal moveable property of any of the following categories—

(i)goodwill,

(ii)a patent or a licence under a patent,

(iii)a trademark,

(iv)a copyright or a licence under a copyright,

(v)a registered design or a licence in respect of such a design,

(vi)a design right or a licence under a design right,

(vii)the book debts (whether book debts of the company or assigned to it), and

(viii)uncalled share capital of the company or calls made but not paid,

(c)a security over a ship or aircraft or any share in a ship,

(d)a floating charge.

879Charges which have to be registered: supplementary

(1)A charge on land, for the purposes of section 878(7)(a), includes a charge created by a heritable security within the meaning of section 9(8) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35).

(2)The holding of debentures entitling the holder to a charge on land is not, for the purposes of section 878(7)(a), deemed to be an interest in land.

(3)It is immaterial for the purposes of this Chapter where land subject to a charge is situated.

(4)The deposit by way of security of a negotiable instrument given to secure the payment of book debts is not, for the purposes of section 878(7)(b)(vii), to be treated as a charge on those book debts.

(5)References in this Chapter to the date of the creation of a charge are—

(a)in the case of a floating charge, the date on which the instrument creating the floating charge was executed by the company creating the charge, and

(b)in any other case, the date on which the right of the person entitled to the benefit of the charge was constituted as a real right.

(6)In this Chapter “company” means an incorporated company registered in Scotland.

880Duty to register charges existing on property acquired

(1)Subsection (2) applies where a company acquires any property which is subject to a charge of any kind as would, if it had been created by the company after the acquisition of the property, have been required to be registered under this Chapter.

(2)The company must deliver the prescribed particulars of the charge, together with a copy (certified to be a correct copy) of the instrument (if any) by which the charge was created or is evidenced, to the registrar for registration before the end of the period allowed for registration.

(3)If default is made in complying with this section, an offence is committed by—

(a)the company, and

(b)every officer of it who is in default.

(4)A person guilty of an offence under this section is liable—

(a)on conviction on indictment, to a fine;

(b)on summary conviction, to a fine not exceeding the statutory maximum.

881Charge by way of ex facie absolute disposition, etc

(1)For the avoidance of doubt, it is hereby declared that, in the case of a charge created by way of an ex facie absolute disposition or assignation qualified by a back letter or other agreement, or by a standard security qualified by an agreement, compliance with section 878(1) does not of itself render the charge unavailable as security for indebtedness incurred after the date of compliance.

(2)Where the amount secured by a charge so created is purported to be increased by a further back letter or agreement, a further charge is held to have been created by the ex facie absolute disposition or assignation or (as the case may be) by the standard security, as qualified by the further back letter or agreement.

(3)In that case, the provisions of this Chapter apply to the further charge as if—

(a)references in this Chapter (other than in this section) to a charge were references to the further charge, and

(b)references to the date of the creation of a charge were references to the date on which the further back letter or agreement was executed.

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