Mortgage Rights (Scotland) Act 2001

2001 asp 11

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 20th June 2001 and received Royal Assent on 25th July 2001

An Act of the Scottish Parliament to provide for the suspension in certain circumstances of enforcement rights of a creditor in a standard security over property used for residential purposes and the continuation of proceedings relating to those rights; to make provision for notifying tenants and other occupiers of enforcement action by a creditor in a standard security; and for connected purposes.

F1 1 Application to suspend enforcement of standard security S

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Textual Amendments

F1 Ss. 1-3 repealed (30.9.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 8(4)(a), 17(3) (with s. 14); S.S.I. 2010/314, art. 3 (with transitional provisions and savings in S.S.I. 2010/316, arts. 4, 5)

F1 2 Disposal of application S

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Textual Amendments

F1 Ss. 1-3 repealed (30.9.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 8(4)(a), 17(3) (with s. 14); S.S.I. 2010/314, art. 3 (with transitional provisions and savings in S.S.I. 2010/316, arts. 4, 5)

F1 3 Registration of order under section 2 S

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Textual Amendments

F1 Ss. 1-3 repealed (30.9.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 8(4)(a), 17(3) (with s. 14); S.S.I. 2010/314, art. 3 (with transitional provisions and savings in S.S.I. 2010/316, arts. 4, 5)

4 Notices to debtors, proprietors and occupiers S

(1) After section 19 of the 1970 Act there is inserted—

“19A Notice to occupier of calling-up

(1) Where a creditor in a standard security over an interest in land used to any extent for residential purposes serves a calling-up notice, he shall serve a notice in conformity with Form BB (notice to occupier) of Schedule 6 to this Act together with a copy of the calling-up notice.

(2) Notices under subsection (1) above shall be sent by recorded delivery letter addressed to “The Occupier” at the security subjects.

(3) If a creditor fails to comply with subsections (1) and (2) above, the calling-up notice shall be of no effect.”

(2) In section 21 (notice of default) of that Act, after subsection (2) there is inserted—

“(2A) Section 19A of this Act applies where the creditor serves a notice of default as it applies where he serves a calling-up notice.”

(3) In section 24 (application by creditor to court for remedies on default) of that Act, after subsection (2) there is inserted—

“(3) Where the creditor applies to the court under subsection (1) above, he shall, if the standard security is over an interest in land used to any extent for residential purposes—

(a) serve on the debtor and (where the proprietor is not the debtor) on the proprietor a notice in conformity with Form E of Schedule 6 to this Act, and

(b) serve on the occupier of the security subjects a notice in conformity with Form F of that Schedule.

(4) Notices under subsection (3) above shall be sent by recorded delivery letter addressed—

(a) in the case of a notice under subsection (3)(a), to the debtor or, as the case may be, the proprietor at his last known address,

(b) in the case of a notice under subsection (3)(b), to “The Occupier” at the security subjects.”

F2 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2 (5A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The schedule to this Act, Part 1 of which amends Schedule 6 to the 1970 Act (forms to be used in relation to calling-up and default) and Part 2 of which sets out the Forms referred to in subsection (4), has effect.

(7) The Scottish Ministers may, by order made by statutory instrument, amend—

(a) the Notes inserted in Forms A and B in Schedule 6 to the 1970 Act by Part 1 of the schedule to this Act,

(b) Forms BB, E and F in Schedule 6 to the 1970 Act,

(c) the Forms set out in Part 2 of the schedule to this Act.

(8) A statutory instrument containing an order under subsection (7) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

Textual Amendments

F2 S. 4(4)-(5A) repealed (30.9.2010) by Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6), ss. 8(4)(b), 17(3) (with s. 14); S.S.I. 2010/314, art. 3 (with transitional provisions and savings in S.S.I. 2010/316, arts. 4, 5)

5 Crown application S

This Act binds the Crown.

6 Interpretation S

Except so far as the context otherwise requires, expressions used in this Act and in Part II of the 1970 Act have the same meanings in this Act as they have in that Part.

7 Commencement and short title S

(1) The preceding provisions of this Act come into force on such day as the Scottish Ministers may by order made by statutory instrument appoint.

(2) An order under subsection (1) may include such transitional and transitory provisions and savings as the Scottish Ministers think expedient.

(3) This Act may be cited as the Mortgage Rights (Scotland) Act 2001.

Subordinate Legislation Made

P1 S. 7(1)(2) power fully exercised: 3.12.2001 appointed by S.I. 2001/418, art. 2 (with transitional provisions in art. 3)

SCHEDULE S NOTICES TO DEBTORS, PROPRIETORS AND OCCUPIERS

(introduced by section 4)

PART 1 S AMENDMENTS TO SCHEDULE 6 TO THE 1970 ACT

1 S Schedule 6 to the 1970 Act (forms to be used in connection with calling-up of, or default under, standard security) is amended as follows.

2 S In Form A (notice of calling-up of standard security) there is inserted, at the end of the notice—

“NOTE: The Mortgage Rights (Scotland) Act 2001 gives you the right in certain circumstances to apply to the court to suspend the rights of C.D. You have two months (which may be shortened only with your consent) to make an application. The court will have regard in particular to the circumstances giving rise to the service of this notice, your ability to comply with this notice, any action taken by C.D. to assist the debtor in the standard security to fulfil the obligations under it and the ability of you and anyone else residing at the property to find reasonable alternative accommodation. If you wish to make such an application, you should consult a solicitor. You may be eligible for legal aid depending on your circumstances, and you can get information about legal aid from a solicitor. You may also be able to get advice, including advice about how to manage debt, from any Citizens Advice Bureau or from other advice agencies.”

3 S In Form B (notice of default under standard security) there is inserted, at the end of the notice—

“NOTE: The Mortgage Rights (Scotland) Act 2001 gives you the right in certain circumstances to apply to the court to suspend the rights of C.D. You have two months (which may be shortened only with your consent) to make an application. The court will have regard in particular to the nature of and reasons for the default, your ability to fulfil the obligations under the standard security, any action taken by C.D. to assist the debtor in the standard security to fulfil those obligations and the ability of you and anyone else residing at the property to find reasonable alternative accommodation. If you wish to make such an application, you should consult a solicitor. You may be eligible for legal aid depending on your circumstances, and you can get information about legal aid from a solicitor. You may also be able to get advice, including advice about how to manage debt, from any Citizens Advice Bureau or from other advice agencies.”

4 S After Form B there is inserted—

“FORM BB S NOTICE TO OCCUPIER

To the Occupier (address)

A Notice of Calling-up of a standard security/ Default under a standard security (delete as appropriate) has been served by C.D. on A.B. in relation to (address of subjects). A copy of the notice is attached.

If you are a tenant of A.B., in certain circumstances C.D. cannot take possession of the property without a court order. You should obtain legal advice about your rights as a tenant. You may be eligible for legal aid depending on your circumstances, and you can get information about legal aid from a solicitor. You may also be able to get advice from any Citizens Advice Bureau or from other advice agencies.

If you are the spouse or partner of A.B., the Mortgage Rights (Scotland) Act 2001 gives you the right in certain circumstances to apply to the court to suspend the rights of C.D. You have two months (which may be shortened only with your consent) to make an application. The court will have regard in particular to—

(for a Notice of Calling-up) the circumstances giving rise to the service of the Notice of Calling-up, your ability to comply with the notice, any action taken by C.D. to assist the debtor in the standard security to fulfil the obligations under it and the ability of you and anyone else residing at the property to find reasonable alternative accommodation.

(for a Notice of Default) the nature of and reasons for the default, your ability to fulfil the obligations under the standard security, any action taken by C.D. to assist the debtor in the standard security to fulfil those obligations and the ability of you and anyone else residing at the property to find reasonable alternative accommodation.

(delete as appropriate)

If you wish to make such an application, you should consult a solicitor. You may be eligible for legal aid depending on your circumstances, and you can get information about legal aid from a solicitor. You may also be able to get advice, including advice about how to manage debt, from any Citizens Advice Bureau or from other advice agencies.

Dated

(Signature of C.D., or signature and designation of C.D.’s agent followed by the words Agent of C.D.)”

5 S After Form D there is inserted—

“FORM E S

To A.B. (address)

C.D. (designation), the creditor in a standard security by you (or by E.F.) in favour of C.D. (or of G.H. to which C.D. now has right) recorded in the Register for» (or, as the case may be, registered in the Land Register for Scotland) on (date) has applied to the court under section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970 for warrant to exercise in relation to (address of security subjects) remedies to which he is entitled on the following default—

(specify in detail the default in respect of which the application is made)

A copy of the application is attached.

Dated

(Signature of C.D., or signature and designation of C.D.’s agent followed by the words Agent of C.D.)

NOTE: The Mortgage Rights (Scotland) Act 2001 gives you the right in certain circumstances to apply to the court for suspension of the rights of C.D. The court will have regard in particular to the nature of and reasons for the default, your ability to fulfil the obligations under the standard security, any action taken by C.D. to assist the debtor in the standard security to fulfil those obligations and the ability of you and anyone else residing at the property to find reasonable alternative accommodation. If you wish to make such an application, you should consult a solicitor. You may be eligible for legal aid depending on your circumstances, and you can get information about legal aid from a solicitor. You may also be able to get advice, including advice about how to manage debt, from any Citizens Advice Bureau or from other advice agencies.

FORM F S

To the Occupier (address)

C.D. (designation) has applied to the court under section 24 of the Conveyancing and Feudal Reform (Scotland) Act 1970 for warrant to exercise in relation to (address of security subjects) remedies to which he is entitled on the default of A.B. (designation) in the performance of his obligations under a standard security over (address of subjects). A copy of the application is attached.

If you are a tenant of A.B. (or, if A.B. is not the proprietor of the subjects, of E.F. (being the proprietor)), in certain circumstances C.D. cannot take possession of the property without a court order. You should obtain legal advice about your rights as a tenant. You may be eligible for legal aid depending on your circumstances, and you can get information about legal aid from a solicitor. You may also be able to get advice from any Citizens Advice Bureau or from other advice agencies.

If you are the spouse or partner of A.B., the Mortgage Rights (Scotland) Act 2001 gives you the right in certain circumstances to apply to the court to suspend the rights of C.D. The court will have regard in particular to the nature of and reasons for the default, your ability to fulfil the obligations under the standard security, any action taken by C.D. to assist the debtor in the standard security to fulfil those obligations and the ability of you and anyone else residing at the property to find reasonable alternative accommodation. If you wish to make such an application, you should consult a solicitor. You may be eligible for legal aid depending on your circumstances, and you can get information about legal aid from a solicitor. You may also be able to get advice, including advice about how to manage debt, from any Citizens Advice Bureau or from other advice agencies.

Dated

(Signature of C.D., or signature and designation of C.D.’s agent followed by the words Agent of C.D.)”

PART 2 S FORMS RELATING TO PROCEEDINGS UNDER SECTION 5 OF THE 1894 ACT

F3 Form 1 S

Textual Amendments

F3 Sch. Pt. 2 Forms 1, 2 substituted (30.9.2010) by The Home Owner and Debtor Protection (Scotland) Act 2010 (Consequential Provisions) Order 2010 (S.S.I. 2010/318), art. 1, sch. Pt para. 2

F3 Form 2 S