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(1) The diligence of adjudication for debt is abolished and any enactment or rule of law enabling an action of adjudication for debt to be raised ceases to have effect.
(2) Subsection (1) above does not affect an action of adjudication for debt—
(a) raised before; and
(b) in which decree of adjudication is granted no later than 6 months after,
the day this section comes into force.
(1) The Register of Inhibitions and Adjudications is renamed the Register of Inhibitions.
(2) Any reference in an enactment to—
(a) the Register of Inhibitions and Adjudications;
(b) the General Register of Inhibitions; or
(c) the Register of Adjudications,
is to be construed as a reference to the Register of Inhibitions.
(1) There is to be a form of diligence over land to be known as land attachment.
(2) Land attachment is competent to enforce payment of a debt but only if—
(a) the debt is constituted by a decree or document of debt;
(b) the debtor has been charged to pay the debt;
(c) the period for payment specified in the charge has expired without payment being made; and
(d) where the debtor is an individual, the creditor has, no earlier than 12 weeks before registering the notice of land attachment, provided the debtor with a debt advice and information package.
(3) A land attachment is, subject to sections 83(6) and 121(1) of this Act, created at the beginning of the day which falls immediately after the expiry of the period of 28 days beginning with the day or, as the case may be, the last day on which a notice of land attachment in relation to the land is registered.
(4) During the period of 28 days referred to in subsection (3) above, the notice has effect as if it were an inhibition—
(a) registered against the debtor in the Register of Inhibitions; and
(b) restricted to the land described in the notice.
(5) A land attachment—
(a) confers on the creditor a subordinate real right over the land described in the notice (in this Chapter, the “attached land”); and
(b) secures the sum (in this Chapter, the “sum recoverable by the land attachment”) mentioned in subsection (6) below.
(6) That sum is—
(a) the sum for the payment of which the charge was served, together with any interest accruing after such service and before the attachment ceases to have effect; and
(b) all expenses which are chargeable against the debtor by virtue of the attachment.
(7) The Scottish Ministers may, by regulations—
(a) substitute for the period of 28 days referred to in subsection (3) above such other period; and
(b) make such amendment of enactments (including this Act) in consequence of such a substitution,
as they think fit.
(8) In this Act, “debt advice and information package” means the debt advice and information package referred to in section 10(5) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17) (in this Act, the “2002 Act”).
(1) In this Chapter, “land” means—
(a) land (including buildings and other structures and land covered with water) owned by the debtor; and
(b) a long lease of land in relation to which the debtor is the tenant.
(2) It is not competent to create a land attachment over—
(a) land—
(i) to which a title has never been registered; or
(ii) to which the debtor does not have a registered title;
(b) a proper liferent in relation to which the debtor is the liferenter; or
(c) a long lease which is not assignable.
(3) Subsection (2)(c) above does not apply to a lease which is assignable only with the consent of the landlord, whether or not it is a condition of the lease that consent must not be withheld unreasonably.
(1) A notice of land attachment must—
(a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt;
(b) describe the land to be attached; and
(c) be registered in both—
(i) the property register in which title to the land is registered (in this Chapter, the “appropriate property register”); and
(ii) the Register of Inhibitions.
(2) It is not competent to register a notice of land attachment unless the sum which the debtor has been charged to pay exceeds the sum mentioned in subsection (3) below.
(3) That sum is—
(a) £3,000; or
(b) such other sum as may be prescribed by the Scottish Ministers by regulations.
(4) It is competent to register a single notice of land attachment in relation to two or more sums which, under separate warrants for diligence in execution, the debtor has been charged to pay.
(5) The judicial officer must, on or as soon as is reasonably practicable after the day or, as the case may be, the last day on which the notice of land attachment is registered, serve a copy of the notice on—
(a) the debtor;
(b) any person who owns the land (whether solely or in common with the debtor); and
(c) any tenant under a long lease of the land.
(6) If, before the expiry of the period of 28 days referred to in section 81(3) of this Act, the creditor does not register a certificate of service on the debtor, the notice of land attachment is, and is deemed always to have been, void.
(7) Subsection (1) above applies to a certificate of service as it applies to a notice of land attachment.
The creation of a land attachment does not convert any moveable debt, in relation to the enforcement of which the notice of land attachment was registered, into a heritable one.
After section 13 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35), insert—
(1) This section applies where—
(a) a notice of land attachment, relating to land (or any part of it) which is subject to an existing standard security duly recorded, is registered in accordance with section 83(1)(c) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3);
(b) a copy of that notice is served on the creditor in that existing standard security; and
(c) a land attachment is subsequently created on the expiry of the period of 28 days mentioned in section 81(3) of that Act.
(2) Section 13(1) of this Act shall apply in relation to the effect on the preference in ranking of that existing standard security from the day on which the period referred to in subsection (1)(c) above expires.”.
(1) This section applies where—
(a) a notice of land attachment is registered;
(b) during the period of 28 days mentioned in section 81(3) of this Act—
(i) the debtor; or
(ii) a tenant of the debtor,
grants a lease of land (or a part of it) specified in the notice; and
(c) a land attachment is, on the expiry of that period, created.
(2) Subject to section 163(2) to (4) of this Act (restriction on reduction of leases granted in breach of inhibition), any such lease is reducible at the instance of the creditor.
(3) In subsection (1)(b) above, “tenant” includes any subtenant of the tenant and “lease” includes a sublease.
(1) A land attachment assigns to the creditor the title deeds, including searches and all unregistered conveyances, affecting the attached land or any part of it.
(2) The creditor is, in the event of a sale of the attached land (or part of it) in pursuance of a warrant under section 97(2) of this Act, entitled to—
(a) deliver the title deeds (so far as in the creditor’s possession and subject to the rights of any person holding prior rights to their possession) to the purchaser; and
(b) assign to the purchaser any right the creditor has to have the title deeds made forthcoming.
(1) This section applies where—
(a) a person acquires a right as mentioned in section 88(1) (acquisition of right to decree, document, order or determination authorising diligence) of the Debtors (Scotland) Act 1987 (c. 18) (in this Act, the “1987 Act”); and
(b) a notice of land attachment has, before that acquisition, been registered in pursuance of that right.
(2) The person acquiring the right may, by registering a notice such as is mentioned in subsection (3) below, take or continue to take any steps necessary to enforce the debt by land attachment as if the appropriate clerk had, under section 88(4) of the 1987 Act, granted warrant authorising the person to do so.
(3) The notice referred to in subsection (2) above must—
(a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt; and
(b) be registered in—
(i) the appropriate property register; and
(ii) the Register of Inhibitions.
(4) References in this Chapter to a “creditor” include, unless the context otherwise requires, references to a person who registers a notice under subsection (2) above.
(1) This section applies where—
(a) a debtor, in relation to whose land a creditor has taken steps to commence or execute a land attachment, dies; and
(b) a land attachment has not, before the date of death of the debtor, been created.
(2) Any steps taken as mentioned in subsection (1)(a) above cease to have effect and any charge relating to the debt is, from the date of death of the debtor, void.
(3) Nothing in subsection (2) above stops the creditor from subsequently proceeding to raise against any executor or other representative of the debtor an action to constitute the debt.
(4) Any warrant for diligence in an extract of a decree in such an action authorises land attachment.
(1) For the avoidance of doubt, where a debtor, whose land is subject to a land attachment, dies, the land attachment continues to have effect in relation to the attached land.
(2) The Court of Session may, by Act of Sederunt, provide for the operation of this Chapter in a case to which this section applies and may, in particular—
(a) modify the provisions about service of notices of applications for warrant for sale and foreclosure; and
(b) confer power on the sheriff to dispense with or modify procedures under this Chapter.
(1) This section applies where—
(a) a person has entered into a contract to purchase land from a debtor; and
(b) ownership has not been transferred to that person.
(2) The person may, for the purpose of receiving intimation of any application, under section 92(1) of this Act, for a warrant for sale of the land, register in the Register of Inhibitions a notice in (or as nearly as may be in) the form prescribed by Act of Sederunt.
(1) Where—
(a) a land attachment is in effect;
(b) the period of 6 months, beginning with the day or, as the case may be, the last day on which the notice of land attachment is registered, has expired;
(c) the sum recoverable by the land attachment exceeds the sum mentioned in subsection (3) below (in this Chapter, the “prescribed sum”); and
(d) the sum recoverable has not been paid,
the creditor may, subject to subsection (2) below, apply to the sheriff for a warrant for sale of the attached land or such part of it as may be specified in the application.
(2) The Scottish Ministers may by regulations provide that where attached land, or any part of it, is—
(a) a dwellinghouse; or
(b) a dwellinghouse of such description or class as may be specified in the regulations,
an application under subsection (1) above may be made only in relation to such part of the attached land which is not a dwellinghouse or, as the case may be, such a dwellinghouse.
(3) The prescribed sum is—
(a) £3,000; or
(b) such other sum as may be prescribed by the Scottish Ministers by regulations.
(4) An application under subsection (1) above must—
(a) be in (or as nearly as may be in) the form prescribed by Act of Sederunt;
(b) specify—
(i) the attached land (or part of it) in relation to which the warrant for sale is sought; and
(ii) a solicitor who is willing to execute any warrant for sale granted; and
(c) be accompanied by—
(i) a report on a search in the appropriate property register in respect of the land specified in the application;
(ii) a report on a search in the Register of Inhibitions in respect of the debtor and any person who owns the attached land in common with the debtor;
(iii) a copy of the notice of land attachment;
(iv) a copy of the certificate of service of that notice on the debtor;
(v) a declaration signed by the solicitor mentioned in paragraph (b)(ii) above; and
(vi) any other document prescribed by Act of Sederunt.
(5) An application under subsection (1) above must be intimated to—
(a) the debtor;
(b) if the report mentioned in subsection (4)(c)(ii) above discloses that a notice has been registered under section 91 of this Act, the person at whose instance the notice was registered;
(c) any person holding any security or diligence ranking prior to or pari passu with the land attachment;
(d) any occupier of the land;
(e) any person who owns the land in common with the debtor; and
(f) any other person belonging to a class of persons prescribed by the Scottish Ministers by regulations.
(6) A person who receives intimation under subsection (5) above may, before the expiry of the period of 14 days beginning with the day on which intimation is made, lodge objections to the application.
(7) The Scottish Ministers may, by regulations, make further provision about the reports on searches mentioned in subsection (4)(c)(i) and (ii) above which are to accompany an application under subsection (1) above.
(8) Where provision is made by virtue of this Chapter or by any other enactment permitting the application under subsection (1) above to be an electronic communication—
(a) the requirement in paragraph (c) of subsection (4) above that the application be accompanied by the documents mentioned in that paragraph is satisfied by the provision of electronic communications; and
(b) the requirement that the declaration mentioned in sub-paragraph (v) of that paragraph be signed is satisfied by a certified electronic signature.
(9) In this section, “sheriff” means a sheriff of the sheriffdom in which the attached land or any part of it is situated.
(1) Where a creditor (other than a local authority) applies under section 92(1) of this Act for a warrant for sale of attached land which comprises or includes a dwellinghouse, the creditor must give notice of that fact to the local authority in whose area the dwellinghouse is situated.
(2) A notice under subsection (1) above must be given in the form and manner prescribed under section 11(3) of the Homelessness etc. (Scotland) Act 2003 (asp 10).
(1) The sheriff must, on receiving an application under section 92(1) of this Act and after expiry of the period mentioned in subsection (6) of that section—
(a) hold a hearing; and
(b) give the persons mentioned in subsection (5) of that section the opportunity of making representations.
(2) The creditor must attend the hearing whether or not the application is opposed.
(3) The sheriff must, if satisfied that the application is in order, make an order—
(a) fixing a date for a hearing on the application under section 97 of this Act;
(b) requiring the creditor to intimate that date to the persons mentioned in section 92(5) of this Act;
(c) appointing a chartered surveyor or other suitably qualified person to report on the open market value of the land specified in the application (that surveyor or other person, and their report, being referred to in this Chapter as the “valuer” and the “valuation report” respectively); and
(d) where any security or diligence is held in relation to the land specified in the application and the creditor has been unable to ascertain the amount of the sums secured by that other security or diligence, requiring the holder of that security or diligence to disclose to the creditor—
(i) the amount of the sums secured; and
(ii) where the security holder is obliged to pay any other sums which would be secured by that security to the debtor, the amount of such sums.
(1) The valuer appointed under section 94(3)(c) of this Act—
(a) may take all steps which are reasonably necessary (including inspecting the attached land) to produce a valuation report; and
(b) must send a copy of the report to—
(i) the creditor; and
(ii) the persons mentioned in section 92(5) of this Act.
(2) The debtor and any other person in occupation of attached land must allow the valuer to inspect the land and carry out any other steps which are necessary to produce the valuation report.
(3) The creditor is liable for the valuer’s reasonable remuneration and outlays incurred in exercising functions under this section.
(4) Such remuneration and outlays are expenses incurred by the creditor in executing the land attachment.
(1) The creditor must, no later than 7 clear days before the date fixed for the hearing under section 97 of this Act, lodge—
(a) the valuation report;
(b) a continuation of the report on the search in the appropriate property register mentioned in section 92(4)(c)(i) of this Act;
(c) a continuation of the report on the search in the Register of Inhibitions mentioned in section 92(4)(c)(ii) of this Act; and
(d) a note specifying the amount outstanding under any security or diligence over the land specified in the application.
(2) Where a report lodged under subsection (1)(b) or (c) above reveals a deed registered since the date of the report mentioned in section 92(4)(c)(i) of this Act or, as the case may be, a notice under section 91 of this Act registered since the date of the report mentioned in section 92(4)(c)(ii) of this Act, the sheriff—
(a) must make an order requiring—
(i) the application; and
(ii) the date fixed for the hearing,
to be intimated to the person who registered that deed or, as the case may be, that notice; and
(b) may, if it appears necessary to do so, make an order—
(i) postponing the hearing to a later date; and
(ii) requiring the creditor to intimate that date to that person and to the persons mentioned in section 92(5) of this Act.
(3) Where the sheriff makes an order under subsection (2)(b)(i) above postponing the hearing, the sheriff may make such ancillary orders as the sheriff thinks fit including, without prejudice to that generality, an order requiring fresh continuations of the reports on searches mentioned in subsection (1)(b) and (c) above to be lodged.
(4) Subsection (6) of section 92 of this Act applies to a person who receives intimation under subsection (2) above as it applies to a person who receives intimation under subsection (5) of that section.
(5) The Scottish Ministers may, by regulations, make further provision about the continuations of the reports on searches mentioned in subsection (1)(b) and (c) above which are to be lodged under that subsection.
(1) At the hearing on an application under section 92(1) of this Act, the sheriff must not make any order without first giving any person who has lodged objections under section 92(6) of this Act an opportunity to be heard.
(2) Subject to subsections (3) and (5) below and to sections 98, 99 and 102 of this Act, the sheriff may, if satisfied that the application is in order, make an order—
(a) subject to subsection (4) below, granting a warrant for sale of the attached land; and
(b) authorising the solicitor specified in the application (or such other solicitor the sheriff specifies) to execute that warrant (in this Chapter, that solicitor being referred to as the “appointed person”).
(3) The sheriff may, if satisfied that granting a warrant for sale would be unduly harsh to the debtor or any other person having an interest—
(a) make an order under subsection (2) above but suspend its effect for a period not exceeding 1 year beginning with the date on which the order is made; or
(b) make an order refusing to grant such a warrant.
(4) The sheriff—
(a) must specify in the warrant granted the period within which the attached land is to be sold; and
(b) may grant warrant—
(i) to sell only part of the attached land;
(ii) to sell the attached land by lots.
(5) The sheriff must make an order refusing the application for a warrant for sale if satisfied that any of the grounds mentioned in subsection (6) below apply.
(6) The grounds referred to in subsection (5) above are that—
(a) the land attachment is invalid;
(b) the land attachment has ceased to have effect;
(c) the attached land (or any part of it) is not capable of being sold;
(d) the sum recoverable by the land attachment does not exceed the prescribed sum;
(e) a warrant for sale of the attached land (or any part of it) has been granted to another creditor of the debtor;
(f) a heritable creditor of the debtor is exercising that creditor’s right to sell the attached land (or any part of it) under the security;
(g) if the attached land (or any part of it) were sold, the likely net proceeds of the sale would not exceed the sum mentioned in subsection (7) below.
(7) The sum referred to in subsection (6)(g) above is the aggregate of—
(a) the expenses of the land attachment chargeable against the debtor; and
(b) whichever is the lesser of—
(i) the sum of £1,000; and
(ii) the sum equal to 10 per cent of the sum mentioned in section 81(6)(a) of this Act or so much of that sum as is outstanding,
or such other sum or percentage as may be prescribed by the Scottish Ministers by regulations.
(8) In subsection (6)(g) above, “likely net proceeds” means the sum likely to be raised by the sale of the attached land less any sums that would be due to a creditor holding a security or diligence over the attached land which ranks prior to or pari passu with the land attachment.
(1) This section applies where—
(a) the creditor applies under section 92(1) of this Act for a warrant for sale of attached land which comprises or includes a dwellinghouse; and
(b) that dwellinghouse is the sole or main residence of—
(i) the debtor;
(ii) where the owner of the dwellinghouse is not the debtor, that owner; or
(iii) any person mentioned in subsection (2) below.
(2) Those persons are—
(a) a non-entitled spouse of the debtor or the owner;
(b) a person living together with the debtor or the owner as husband and wife;
(c) a civil partner of the debtor or the owner;
(d) a person living together with the debtor in a relationship which has the characteristics of the relationship between a husband and wife except that the person and the debtor or the owner are of the same sex;
(e) a person to whom subsection (3) below applies.
(3) This subsection applies to a person where—
(a) the debtor or the owner does not reside in the dwellinghouse;
(b) a child of the debtor or the owner, who is also a child of the person, does so reside; and
(c) the person has lived together with the debtor or the owner as is mentioned in paragraph (b) or (d) of subsection (2) above throughout the period of 6 months ending with the day on which the debtor or the owner ceased to so reside.
(4) Before making, under section 97(2) of this Act, an order granting a warrant for sale, the sheriff must have regard to the matters mentioned in subsection (5) below.
(5) Subject to subsection (6) below, those matters are—
(a) the nature of and reasons for the debt secured by the land attachment;
(b) the debtor’s ability to pay, if the effect of the warrant for sale were suspended by an order under subsection (7) below, the debt outstanding (including any interest and expenses chargeable against the debtor);
(c) any action taken by the creditor to assist the debtor in paying that debt;
(d) the ability of those occupying the dwellinghouse as their sole or main residence to secure reasonable alternative accommodation.
(6) The Scottish Ministers may by regulations modify subsection (5) above to—
(a) add to;
(b) remove from; or
(c) vary,
the matters mentioned there.
Bankruptcy and Diligence etc (Scotland) Act 2007