Part 7

Repayment charges

Repayment charges
172
1
A local authority entitled to recover a sum under section 59(1) or (2) , section 61(3A), subsection (6A) below , paragraph 6(1) of schedule 5 or section 4A(5) of the Tenements (Scotland) Act 2004 (asp 11) may make in favour of itself a charge (a “repayment charge”)—
a
specifying the repayable amount and the property concerned, ...
b
providing that the property concerned is charged with the repayable amount.
c
providing that the repayable amount is payable in the number of equal annual instalments and on the date in each year determined under subsection (3)(a),
d
providing that in default of such payment each instalment, together with any amount recoverable in respect of that instalment under subsection (6A), is to be separately recoverable as a debt, and
e
providing that if immediately after the final instalment falls due any balance of the repayable amount remains unpaid, that balance is immediately due for repayment and is recoverable as a debt.
2
The repayable amount is the lowest of—
a
the amount recoverable under section 59(1) or (2) , section 61(3A), subsection (6A) below, paragraph 6(1) of schedule 5 or section 4A(5) of the Tenements (Scotland) Act 2004,
b
any lower amount determined by the local authority, and
c
any amount which the Scottish Ministers by order prescribe as the maximum repayable amount.
3
The local authority must—
a
determine—
i
the number of equal annual instalments, being no fewer than 5 and no more than 30, in which the repayable amount is to be paid, and
ii
the date in each year on which the instalment becomes due, and
b
notify the owner of its determination under paragraph (a).
4
The local authority must register a repayment charge in the appropriate land register.
4A
The owner of a property who is liable for the repayable amount does not, by virtue only of ceasing to be such an owner, cease to be liable for the repayable amount.
5
The owner of, or any other person interested in, any property subject to a repayment charge may at any time redeem the repayable amount early by paying to the local authority—
a
such sum as the owner or other person may agree with the local authority, or
b
failing such agreement, such sum as the Scottish Ministers may determine.
6
The local authority must, on receiving—
a
payment of the repayable amount in accordance with the repayment charge, or
b
a sum redeeming the repayable amount under subsection (5),
register a discharge of the repayment charge in the appropriate land register.
6A
A local authority may recover—
a
the amount of any fee payable in respect of registering a repayment charge or a discharge of such a charge,
b
any administrative expenses incurred by it in connection with the registration, and
c
interest, at such reasonable rate as it may determine, from the date when a demand for payment is served until the whole amount is paid,
from the owner of the
property
concerned.
6B
Subsection (6A)(c) does not apply where the recoverable amount relates to a sum the local authority is entitled to recover under section 4A(5) of the Tenements (Scotland) Act 2004 (asp 11).
7
Where a repayment charge is made in respect of expenses incurred by a local authority in demolishing a house, references in this section and in section 173 to property are to be read as references to the site of the demolished house.
8
This section does not apply in relation to—
a
the recovery of sums under section 59(2) from a landlord who is not the owner of the property concerned,
b
property which is not a building.
9
In this section and in section 173, “
property
” means a place which is—
a
living accommodation, or
b
non-residential premises within the meaning of section 69(3).

Repayment charge: appeals to the sheriff
172A
1
A person aggrieved by a determination under section 172(3)(a)(i) may appeal to the sheriff.
2
On an appeal under this section the sheriff may make such order relating to the number of annual instalments as the sheriff thinks fit.
3
The decision of the sheriff on appeal under this section is final.

Effect of registering repayment charges etc.
173
1
A registered repayment charge is conclusive evidence that the charge specified in it has been created in respect of the property specified in it.
2
A registered repayment charge constitutes a charge on the property specified in it and has priority over—
a
all future burdens and incumbrances on the same property, and
b
all existing burdens and incumbrances on the same property except any charges created or arising under—
i. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii
any local Act authorising a charge for recovery of expenses incurred by a local authority,
iii
Schedule 9 of the 1987 Act,
iv
section 172, or
v
any Act authorising advances of public money.
3
A registered repayment charge is enforceable at the instance of the local authority against any person deriving title to the charged property.
4
But it is not enforceable against—
a
a third party who acquires right to the charged property (whether title has been completed or not) in good faith and for value before the repayment charge is registered, or
b
any person deriving title from such third party.
5
A registered discharge of a repayment charge is conclusive evidence that the charge concerned has been discharged.

Repayment charges: further provision
174
The Scottish Ministers may by order—
a
specify the form which a repayment charge, or a discharge of a repayment charge, must be in,
b
make such further provision as they think fit about the repayment or early redemption of amounts repayable under a repayment charge.

Repayment charges: registered social landlords
174A
1
The Scottish Ministers may by regulations make provision allowing a registered social landlord to make in favour of itself a charge to recover a sum which—
a
the registered social landlord is entitled to recover from an owner of a flat in a tenement, and
b
represents the owner's share of scheme costs as determined in accordance with section 4A(3) of the 2004 Act.
2
Regulations under subsection (1) may, in particular—
a
apply (with or without modifications), or make provision similar to, any provision of or made under this Part,
b
prescribe conditions which must apply before a charge can be made in relation to a sum mentioned in subsection (1), including conditions relating to—
i
the registered social landlord which may make a charge,
ii
the circumstances leading to the sum becoming recoverable by the registered social landlord,
c
modify the Tenement Management Scheme or its operation,
d
make provision about rights of appeal which apply in relation to—
i
the decision to impose a charge,
ii
the terms of the charge.
3
Before making regulations under subsection (1), the Scottish Ministers must consult—
a
such bodies representing local authorities,
b
such bodies representing registered social landlords,
c
such other persons,
as they think fit.
4
Regulations under subsection (1) may modify any enactment (including this Act).
5
In this section—
- “
owner of a flat in a tenement
” is to be construed in accordance with the definition of “owner” in section 28 of the 2004 Act,
- “
registered social landlord
” means a body registered in the register maintained under section 20(1) of the Housing (Scotland) Act 2010 (asp 17),
- “
Tenement Management Scheme
” has the same meaning as in the 2004 Act, and
- “
the 2004 Act
” means the Tenements (Scotland) Act 2004 (asp 11).
S. 173(2)(b)(i) repealed (1.10.2009) by Public Health etc. (Scotland) Act 2008 (asp 5), s. 128(2), Sch. 3 Pt. 1 (with s. 127); S.S.I. 2009/319, art. 2(a), Sch. 1
Words in s. 172(1) inserted (1.3.2011) by Housing (Scotland) Act 2010 (asp 17), ss. 150(4)(a), 166(2); S.S.I. 2011/96, art. 2, Sch.
S. 172(6A) inserted (1.3.2011) by Housing (Scotland) Act 2010 (asp 17), ss. 150(4)(b), 166(2); S.S.I. 2011/96, art. 2, Sch.
S. 174A inserted (20.11.2014) by Housing (Scotland) Act 2014 (asp 14), ss. 85(3), 104(3); S.S.I. 2014/264, art. 2, Sch.
S. 172A inserted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 91(2), 104(3); S.S.I. 2015/122, art. 2
Words in s. 172(1) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 85(2)(a), 104(3); S.S.I. 2015/122, art. 2
Words in s. 172(2)(a) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 85(2)(b), 104(3); S.S.I. 2015/122, art. 2
S. 172(6B) inserted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 85(2)(c), 104(3); S.S.I. 2015/122, art. 2
Word in s. 172(1) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(a), 104(3); S.S.I. 2015/122, art. 2
Word in s. 172(5) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(b), 104(3); S.S.I. 2015/122, art. 2
Word in s. 172(6A) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(c), 104(3); S.S.I. 2015/122, art. 2
Word in s. 172(7) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(d), 104(3); S.S.I. 2015/122, art. 2
Word in s. 172(8) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(e), 104(3); S.S.I. 2015/122, art. 2
S. 172(9) inserted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(f), 104(3); S.S.I. 2015/122, art. 2
Word in s. 172(1) repealed (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 91(1)(a)(i), 104(3); S.S.I. 2015/122, art. 2
S. 172(1)(c)-(e) inserted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 91(1)(a)(ii), 104(3); S.S.I. 2015/122, art. 2
S. 172(3) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 91(1)(b), 104(3); S.S.I. 2015/122, art. 2
S. 172(4A) inserted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 91(1)(c), 104(3); S.S.I. 2015/122, art. 2
Word in s. 173(1) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(2)(a), 104(3); S.S.I. 2015/122, art. 2
Word in s. 173(2) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(2)(b), 104(3); S.S.I. 2015/122, art. 2
Word in s. 173(3) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(2)(c), 104(3); S.S.I. 2015/122, art. 2
Word in s. 173(4) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(2)(d), 104(3); S.S.I. 2015/122, art. 2