Conveyancing and Feudal Reform (Scotland) Act 1970

Section 11.

SCHEDULE 3 S The Standard Conditions

Maintenance and repair. S

1 It shall be an obligation on the debtor—

(a) to maintain the security subjects in good and sufficient repair to the reasonable satisfaction of the creditor;

(b) to permit, after seven clear days notice in writing, the creditor or his agent to enter upon the security subjects at all reasonable times to examine the condition thereof;

(c) to make all necessary repairs and make good all defects in pursuance of his obligation under head (a) of this condition within such reasonable period as the creditor may require by notice in writing.

Completion of buildings etc. and prohibition of alterations etc. S

2 It shall be an obligation on the debtor—

(a) to complete, as soon as may be practicable, any unfinished buildings and works forming part of the security subjects to the reasonable satisfaction of the creditor;

(b) not to demolish, alter or add to any buildings or works forming part of the security subjects, except in accordance with the terms of a prior written consent of the creditor and in compliance with any consent, licence or approval required by law;

(c) to exhibit to the creditor at his request evidence of that consent, licence or approval.

Observance of conditions in title, payment of duties, charges, etc., and general compliance with requirements of law relating to security subjects. S

3 It shall be an obligation on the debtor—

(a) to observe any condition or perform any obligation in respect of the security subjects lawfully binding on him in relation to the security subjects;

(b) to make due and punctual payment of any ground burden, teind, stipend, or standard charge, and any rates, taxes and other public burdens, and any other payments exigible in respect of the security subjects;

(c) to comply with any requirement imposed upon him in relation to the security subjects by virtue of any enactment.

Planning notices, etc. S

4 It shall be an obligation on the debtor—

(a) where he has received any notice or order, issued or made by virtue of the Town and Country Planning (Scotland) Acts 1947 to 1969 or any amendment thereof, or any proposal so made for the making or issuing of any such notice or order, or any other notice or document affecting or likely to affect the security subjects, to give to the creditor, within fourteen days of the receipt of that notice, order or proposal, full particulars thereof;

(b) to take, as soon as practicable, all reasonable or necessary steps to comply with such a notice or order or, as the case may be, duly to object thereto;

(c) in the event of the creditor so requiring, to object or to join with the creditor in objecting to any such notice or order or in making representations against any proposal therefor.

Insurance. S

5 It shall be an obligation on the debtor—

(a) to insure the security subjects or, at the option of the creditor, to permit the creditor to insure the security subjects in the names of the creditor and the debtor to the extent of the market value thereof against the risk of fire and such other risks as the creditor may reasonably require;

(b) to deposit any policy of insurance effected by the debtor for the aforesaid purpose with the creditor;

(c) to pay any premium due in respect of any such policy, and, where the creditor so requests, to exhibit a receipt therefor not later than the fourteenth day after the renewal date of the policy;

(d) to intimate to the creditor, within fourteen days of the occurrence, any occurrence which may give rise to a claim under the policy, and to authorise the creditor to negotiate the settlement of the claim;

(e) without prejudice to any obligation to the contrary enforceable against him, to comply with any reasonable requirement of the creditor as to the application of any sum received in respect of such a claim;

(f) to refrain from any act or omission which would invalidate the policy.

Restriction on letting. S

6 It shall be an obligation on the debtor not to let, or agree to let, the security subjects, or any part thereof, without the prior consent in writing of the creditor, and “to let” in this condition includes to sub-let.

General power of creditor to perform obligations etc. on failure of debtor and power to charge debtor. S

7 (1) The creditor shall be entitled to perform any obligation imposed by the standard conditions on the debtor, which the debtor has failed to perform.

(2) Where it is necessary for the performance of any obligation as aforesaid, the creditor may, after giving seven clear days notice in writing to the debtor, enter upon the security subjects at all reasonable times.

(3) All expenses and charges (including any interest thereon), reasonably incurred by the creditor in the exercise of a right conferred by this condition, shall be recoverable from the debtor and shall be deemed to be secured by the security subjects under the standard security, and the rate of any such interest shall be the rate in force at the relevant time in respect of advances secured by the security, or, where no such rate is prescribed, shall be the bank rate in force at the relevant time.

Calling-up. S

8 The creditor shall be entitled, subject to the terms of the security and to any requirement of law, to call-up a standard security in the manner prescribed by section 19 of this Act.

Default. S

9 (1) The debtor shall be held to be in default in any of the following circumstances, that is to say—

(a) where a calling-up notice in respect of the security has been served and has not been complied with;

(b) where there has been a failure to comply with any other requirement arising out of the security;

(c) where the proprietor of the security subjects has become insolvent.

(2) For the purposes of this condition, the proprietor shall be taken to be insolvent if—

(a) he has become notour bankrupt, or he has executed a trust deed for behoof of, or has made a composition contract or arrangement with, his creditors;

(b) he has died and a judicial factor has been appointed under section [F1 11A of the Judicial Factors (Scotland) Act 1889] to divide his insolvent estate among his creditors, [F2 or his estate falls to be administered in accordance with an order under section [F3 421 of the Insolvency Act 1986]];

(c) where the proprietor is a company, a winding-up order has been made with respect to it, or a resolution for voluntary winding-up (other than a members’ voluntary winding-up) has been passed with respect to it, or a receiver or manager of its undertaking has been duly appointed, or possession has been taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge.

Textual Amendments

F1 Words substituted by Bankruptcy (Scotland) Act 1985 (c. 66, SIF 11:2), s. 75(1), Sch. 7 para. 8

F2 Words from “or his estate” to “Act 1986” substituted by virtue of Insolvency Act 1985 (c. 65, SIF 11:1), Sch. 8 para. 18

F3 Words substituted by virtue of Insolvency Act 1986 (c. 45, SIF 66), s. 443, Sch. 14

Rights of creditor on default. S

10 (1) Where the debtor is in default, the creditor may, without prejudice to his exercising any other remedy arising from the contract to which the standard security relates, exercise, in accordance with the provisions of Part II of this Act and of any other enactment applying to standard securities, such of the remedies specified in the following sub-paragraphs of this standard condition as he may consider appropriate.

(2) He may proceed to sell the security subjects or any part thereof.

(3) He may enter into possession of the security subjects and may receive or recover F4 . . . the rents of those subjects or any part thereof.

(4) Where he has entered into possession as aforesaid, he may let the security subjects or any part thereof.

(5) Where he has entered into possession as aforesaid there shall be transferred to him all the rights of the debtor in relation to the granting of leases or rights of occupancy over the security subjects and to the management and maintenance of those subjects.

(6) He may effect all such repairs and may make good such defects as are necessary to maintain the security subjects in good and sufficient repair, and may effect such reconstruction, alteration and improvement on the subjects as would be expected of a prudent proprietor to maintain the market value of the subjects, and for the aforesaid purposes may enter on the subjects at all reasonable times.

(7) He may apply to the court for a decree of foreclosure.

Textual Amendments

F4 Words in Sch. 3 condition 10(3) repealed (28.11.2004) by 2000 asp 5, ss. 76(1)(2), 77(2)(c)(d), sch. 12 Pt. 1 para. 30(24), sch. 13 Pt. 1 (with ss. 58, 62, 75); S.S.I. 2003/456, art. 2

Exercise of right of redemption. S

11 (1) The debtor shall be entitled to exercise his [F5 right (if any) to redeem the security on giving notice] of his intention so to do, being a notice in writing (hereinafter referred to as a “notice of redemption”).

(2) Nothing in the provisions of [F5 this Act] shall preclude a creditor from waiving the necessity for a notice of redemption, or from agreeing to a period of notice of less than [F5 that to which he is entitled.]

(3) (a) A notice of redemption may be delivered to the creditor or sent by registered post or recorded delivery to him at his last known address, and an acknowledgment signed by the creditor or his agent or a certificate of postage by the person giving the notice accompanied by the postal receipt shall be sufficient evidence of such notice having been given.

(b) If the address of the creditor is not known, or if the packet containing the notice of redemption is returned to the sender with intimation that it could not be delivered, a notice of redemption may be sent to the Extractor of the Court of Session and an acknowledgment of receipt by him shall be sufficient evidence of such notice having been given.

(c) A notice of redemption sent by post shall be held to have been given on the day next after the day of posting.

(4) When a notice of redemption states that a specified amount will be repaid, and it is subsequently ascertained that the whole amount due to be repaid is more or less than the amount specified in the notice, the notice shall nevertheless be effective as a notice of repayment of the amount due as subsequently ascertained.

(5) [F5 Where the debtor has exercised a right to redeem, and has made payment] of the whole amount due, or [F5 has performed] the whole obligations of the debtor under the contract to which the security relates, the creditor shall grant a discharge in the terms prescribed in section 17 of this Act.

Textual Amendments

F5 Words substituted by Redemption of Standard Securities (Scotland) Act 1971 (c. 45), s. 1(g)

12 S The debtor shall be personally liable to the creditor for the whole expenses of the preparation and execution of the standard security and any variation, restriction and discharge thereof and, where any of those deeds are [F6 registered or] recorded, the [F7 registration or] recording thereof, and all expenses reasonably incurred by the creditor in calling-up the security and realising or attempting to realise the security subjects, or any part thereof, and exercising any other powers conferred upon him by the security.

Textual Amendments

F6 Words in Sch. 3 para. 12 inserted (8.12.2014) by Land Registration etc. (Scotland) Act 2012 (asp 5), ss. 122, 123, sch. 5 para. 17(20)(a) (with s. 121, sch. 4 paras. 13, 16); S.S.I. 2014/127, art. 2

F7 Words in Sch. 3 para. 12 inserted (8.12.2014) by Land Registration etc. (Scotland) Act 2012 (asp 5), ss. 122, 123, sch. 5 para. 17(20)(b) (with s. 121, sch. 4 paras. 13, 16); S.S.I. 2014/127, art. 2

Interpretation S

In this Schedule, where the debtor is not the proprietor of the security subjects, “debtor” means “proprietor”, except

(a) in standard conditions 9(1), 10(1) and 12, and

(b) in standard condition 11, where “debtor” includes the proprietor.