Home Owner and Debtor Protection (Scotland) Act 2010 (asp 6)

Part 1 Residential standard securities etc.: creditor’s rights on default

3 Court powers in action for possession of residential property

(1) In section 5 (power to eject proprietor in personal occupation) of the Heritable Securities (Scotland) Act 1894 (c. 44) (“the 1894 Act”)—

(a) the existing provision becomes subsection (1),

(b) after that subsection insert—

“(2) Proceedings under subsection (1) by a creditor in a security over land or a real right in land used to any extent for residential purposes are to be brought by summary application (regardless of whether they include a crave for any other remedy).

(3) Before making an application under subsection (1) in a case referred to in subsection (2), the creditor must comply with the pre-action requirements imposed by section 5B.”.

(2) After section 5 of the 1894 Act insert—

“5A Court powers on section 5 proceedings relating to residential property

(1) This section applies to an application under section 5(1) by a creditor in a security over land or a real right in land used to any extent for residential purposes.

(2) The creditor must—

(a) serve on the proprietor a notice in conformity with Form 1 in Part 2 of the schedule to the Mortgage Rights (Scotland) Act 2001,

(b) serve on the occupier of the security subjects a notice in conformity with Form 2 in that Part of that schedule, and

(c) give notice of the application to the local authority in whose area the security subjects are situated, unless the creditor is that local authority.

(3) A notice under subsection (2)(a) or (b) must be sent by recorded delivery letter addressed—

(a) in the case of a notice under subsection (2)(a), to the proprietor at the proprietor’s last known address,

(b) in the case of a notice under subsection (2)(b), to “The Occupier” at the security subjects.

(4) Notice under subsection (2)(c) is to be given in the form and manner prescribed under section 11(3) of the Homelessness etc. (Scotland) Act 2003.

(5) The court may continue the proceedings or make any other order that it thinks fit on the application; but it may not grant the application unless it is satisfied that—

(a) the creditor has complied with section 5(3); and

(b) it is reasonable in the circumstances of the case to do so.

(6) In considering the application in a case where the debtor appears or is represented, the court is to have regard in particular to the matters set out in subsection (7).

(7) Those matters are—

(a) the nature of and reasons for the default,

(b) the ability of the debtor to fulfil within a reasonable time the obligations under the security in respect of which the debtor is in default,

(c) any action taken by the creditor to assist the debtor to fulfil those obligations,

(d) where appropriate, participation by the debtor in a debt payment programme approved under Part 1 of the Debt Arrangement and Attachment (Scotland) Act 2002, and

(e) the ability of the debtor and any other person residing at the security subjects to secure reasonable alternative accommodation.

(8) Subsections (5) and (6) do not affect—

(a) any power that the court may have, or

(b) any rights that the debtor may have,

by virtue of any other enactment or rule of law.”.