Part 4Land attachment and residual attachment
Chapter 3Residual attachment
Residual attachment
I1129Residual attachment
1
There is to be a form of diligence over property of a debtor to be known as residual attachment.
2
Residual attachment may be used to attach property (heritable or moveable) only of such description or class as may be specified by the Scottish Ministers by regulations.
3
The Scottish Ministers may specify any property but only if—
a
it is transferable; and
b
it is not—
i
attachable by; or
ii
exempt from,
any other diligence.
4
The Scottish Ministers may not specify—
a
a right of a debtor as tenant of a dwellinghouse which is the debtor's sole or main residence; or
b
a right of a debtor as tenant of a croft.
5
Property which is owned in common by a debtor and a third party may be attached by residual attachment in satisfaction of the debts of the debtor.
6
Regulations under subsection (2) above may—
a
vary the description of; or
b
remove property of such description or class from,
the property which may be attached by residual attachment.
7
Regulations under subsection (2) above may make further provision, in the case of property of a particular description or class, about—
a
the content and effect of an application for an order under section 132(2) of this Act (in this Chapter, a “residual attachment order”);
b
the effect of such an order;
c
the content and effect of an application for an order under section 136(2) of this Act (in this Chapter, a “satisfaction order”);
d
the effect of such an order and, in particular—
i
the methods for and procedures involved in satisfying the sum recoverable by the residual attachment out of the attached property which such an order may authorise;
ii
the duration of such an order; and
iii
the disbursement of any sums recovered by such an order;
e
the powers of the court in relation to residual attachment orders, satisfaction orders and other orders made by virtue of this Chapter; and
f
the termination of residual attachment.
8
Regulations under subsection (2) above may make further provision—
a
about the effect of the making of time to pay directions and time to pay orders on residual attachment; and
b
about the effect of sequestration on residual attachment including, without prejudice to that generality, provision—
i
that a residual attachment created during such period before the date of sequestration as may be prescribed is not to be effectual to create a preference for the creditor;
ii
about the effect of sequestration on the rights of a creditor to insist in a residual attachment created before any such period; and
iii
about the effect of sequestration on the rights of a creditor to create a residual attachment on or after the date of sequestration.