Moveable Transactions (Scotland) Act 2023

75 Appropriation without prior agreement

(1) This section applies in respect of property in relation to which the provider and the secured creditor have not reached agreement under section 74(1).

(2) Property may only be appropriated by virtue of section 73(1) if the amount obtained by the appropriation bears a reasonable relationship to the market value of the property appropriated on the date of the appropriation.

(3) Before exercising a right to appropriate property by virtue of section 73(1), the secured creditor must serve a notice on—

(a) the provider,

(b) the debtor in the secured obligation (if a person other than the provider),

(c) the holder of any other right in security over all or part of the property, and

(d) any creditor who has executed diligence against all or part of the property.

(4) But—

(a) paragraph (c) of subsection (3) is to be disregarded if the secured creditor does not know, and cannot reasonably be expected to know, of the right in security mentioned in that paragraph, and

(b) paragraph (d) of that subsection is to be disregarded if the secured creditor does not know, and cannot reasonably be expected to know, of the diligence executed as mentioned in that paragraph.

(5) Any notice served under subsection (3) must—

(a) identify the property to be appropriated,

(b) specify the amount for the time being remaining due under the secured obligation,

(c) specify the amount expected to be obtained by the appropriation, and

(d) state that—

(i) the recipient may give a written statement to the secured creditor objecting to the appropriation, and

(ii) if such a statement is received by the secured creditor within 14 days beginning with the day that the person objecting received the notice, the appropriation is not to proceed.

(6) If, within the period specified in sub-paragraph (ii) of subsection (5)(d), the secured creditor receives a written statement as mentioned in that subsection from a recipient of a notice—

(a) the appropriation is not to proceed, and

(b) the secured creditor must, by written statement and without delay, inform each of the other recipients of the notice that the appropriation is not proceeding.

(7) The Scottish Ministers may by regulations modify this section so as to—

(a) specify—

(i) further persons, or descriptions of persons, on whom the secured creditor must serve a notice (being persons who have statutory duties in relation to the provider’s estate),

(ii) cases when the requirement to serve a notice on a person specified by virtue of sub-paragraph (i) is to be disregarded,

(b) require a notice under subsection (3) to be in, or as nearly as may be in, such form as is for the time being prescribed (and may in consequence remove any requirements in this section as to what such a notice must contain).