Bankruptcy and Diligence etc. (Scotland) Act 2007

129 Residual 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.