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182.Section 58(1) provides that the Commission must make a recommendation to the Lord President to grant an application for a commission as judicial officer where it is satisfied as to the suitability of the person. In taking a decision to make such a recommendation it must also take into account the overall number of judicial officers and any other matters it considers relevant. The person must be a member of the professional association (see section 63(3)). A copy of the decision on an application must be sent to the applicant (subsection (2)). Refusals to recommend the granting of a commission are subject to appeal as set out in section 74(1).
183.The Commission must, following the granting of a commission by the Lord President, issue an official identity card to the judicial officer (subsection (3)). The officer must, when requested, show the identity card when carrying out official duties (subsection (4)).
184.Subsection (5) provides that the Commission may make rules for the procedure for applications to become a judicial officer, the qualifications such a person must hold, the examinations and training to be undertaken before a commission may be granted and any other matters considered to be relevant to applications.
185.Section 59(1) provides that the Commission may make rules requiring every judicial officer to pay an annual fee to the Commission. These may include a specific date each year by which payment must be made, how the annual fee is to be paid and any other matters the Commission considers to be appropriate (subsection (2)).
186.Subsection (3) provides that rules under this section must be approved by the Scottish Ministers.
187.Section 60(1) abolishes the offices of messenger-at-arms and sheriff officer. Messengers-at-arms are appointed by the Lord Lyon King of Arms on the recommendation of the Court of Session. Sheriff officers are commissioned on a territorial basis by the sheriff principal of each sheriffdom. Messengers-at-arms execute warrants issued by the Court of Session, the High Court of Justiciary and the Lyon Court. Messengers-at-arms have to be commissioned as sheriff officers before they can be appointed as messengers and are empowered to work across Scotland. Sheriff officers execute warrants of the sheriff court and are authorised to operate within the court area in which they have been granted a commission.
188.Subsection (2) provides that, from the day this section comes into force, those officers (provided they hold a commission as a messenger-at-arms or sheriff officer immediately before section 60(2) comes into force) will be deemed to hold a commission as a judicial officer granted under section 57(2).
189.Subsections (3) to (5) provide that it is competent for a judicial officer to carry out any function (which includes powers and duties) which was competent for a messenger-at-arms or sheriff officer to carry out (providing it does not conflict with any legislative provision about judicial officers) and references in any legislation to “messenger-at-arms”, “sheriff officer” and “officer of court” are to be treated as if they are references to a judicial officer.
190.There are certain provisions in Acts in which the references set out in subsection (5)(a) to (c) are not to be read as references to judicial officers (for example, because the Act refers to the term “officer of court” in a context other than Scottish sheriff officers or messengers-at-arms). Subsection (6) specifies those provisions which are excluded from the effect of subsection (5).
191.Section 61(1) provides that the Scottish Ministers may, by regulations, confer functions on, or remove or modify the functions of, judicial officers. Again, functions in this context include powers and duties of judicial officers. Regulations made under this section are subject to negative resolution procedure before the Scottish Parliament as provided for by section 224(3).
192.Subsection (2) gives the Scottish Ministers further powers to make regulations. Those regulations may deal with the types of business association that officers may form (for example limited liability partnerships), provision about the ownership, membership, management and control of those associations, and conditions to be satisfied by those associations. Regulations made under this power are also subject to negative resolution procedure under section 224(3).
193.Subsection (2)(d) provides that the Scottish Ministers may make provision regulating the fees and charges that may be levied by judicial officers.
194.Subsection (3) requires the Scottish Ministers to consult the Commission before making regulations under subsection (1) or (2).
195.Subsection (4) gives the Commission the power to make rules regulating the conduct of judicial officers and prohibiting extra-official activities which are incompatible with their functions. Rules may permit extra-official activities which are not incompatible with officers’ functions but may impose conditions on the carrying out of such activities. This rule-making power could be used to prescribe the kinds of permitted and prohibited extra-official activities which sheriff officers and messengers-at-arms were permitted to carry out. Permitted activities might include informal debt collection and prohibited extra-official activities might include being a money lender or an auctioneer with his or her own auction room. The rules may include a requirement on judicial officers to keep and audit accounts, maintain records for inspection, provide a bond of caution and other matters that the Commission considers appropriate.
196.Subsections (5) to (7) provide that no judicial officers may undertake allowable extra-official activities for payment without the consent of the Commission and the Commission may attach conditions to its consent. Subsection (5) requires an officer to obtain permission from the Commission to undertake remunerated activities which are not connected with the officer’s functions. In practice, an officer will only be able to obtain permission for activities which are not already prohibited by rules made under section 61(4)(b) and will only need to obtain permission for activities which are not already permitted by rules made under section 61(4)(c). Permission to undertake extra-official activities for remuneration will be permitted only if the activity is not incompatible with judicial officer functions.
197.Subsection (7) provides that the Commission can attach conditions to any permission it grants and can also revoke permission it had previously granted if, for instance, it is considered that the activity has become incompatible with the officer’s functions.
198.Section 62 provides that a judicial officer must notify the Commission in writing, within 28 days, of any one of the public acts of bankruptcy and related events listed in subsection (2). Most of the events listed apply to bankruptcies and insolvencies in Scotland. However, paragraph (e) (the making of a disqualification order under the Company Directors Disqualification Act 1986) applies on a UK-basis. Section 67(9)(d) provides that failure to notify is misconduct. Notification can be given electronically under section 78(b).
199.Section 63 gives the Scottish Ministers power to designate a professional association for judicial officers and to regulate the constitution and procedures of the professional association. Regulations under this section are subject to negative resolution procedure by virtue of section 224(3) and can be made only after consultation with the Commission, representatives of the professional association (or proposed association if one has yet to be designated) and any other body or person the Scottish Ministers consider has an interest. A commission as a judicial officer cannot be granted to anyone who is not a member of the professional association.
200.Section 64 provides that where the professional association receives a complaint about a judicial officer or the services provided by an officer, it must send details of that complaint and any evidence which accompanies it, to the Commission. This duty could activate where, for example, a member of the public upon whom diligence has been effected by a judicial officer complains about the manner in which the officer has carried out his or her functions.
201.Section 65 provides that the Commission may require the professional association to provide any information to the Commission that it considers necessary to enable it to carry out its regulatory functions under sections 66, 67 and 71.
202.Section 66 provides that the Commission can appoint a person to inspect the work or a particular aspect of the work of a judicial officer. The person must, if required by the Commission, inquire into any paid activities undertaken by the judicial officer. The person appointed is required to prepare a report on the inspection for the Commission and is entitled to charge the Commission a fee unless the person is a civil servant working in that capacity. Whether or not the person is a civil servant, the person is entitled to reimbursement by the Commission of expenses reasonably incurred in the inspection.
203.This section governs when the Commission can investigate allegations of misconduct by judicial officers. Subsection (1) provides that this section applies where—
a person appointed under section 66 to carry out an inspection submits a report to the Commission disclosing that a judicial officer may have been guilty of misconduct;
a sheriff or judge, but not the Lord President (who carries out functions relating to misconduct by depriving judicial officers of office by virtue of section 57(6)), makes a report to the Commission alleging misconduct;
the professional association sends on details of a complaint under section 64;
any other person complains to the Commission alleging misconduct of an officer; or
the Commission otherwise has reason to believe that an officer may have been guilty of misconduct.
204.Subsection (2) provides that the Commission may disregard a complaint if it is considered that the complaint is frivolous or vexatious (i.e. is made simply to harass the judicial officer).
205.Subsections (3) and (4) provide that the Commission, after giving the officer an opportunity to admit, deny or give an explanation of the matter, may appoint a person to investigate the matter. Where a person was appointed under section 66 to inspect the work of the judicial officer, the Commission can appoint that person to carry out the investigation under this section (see subsection (8)). The Commission may not appoint a person if a judicial officer admits the misconduct in writing or gives a satisfactory explanation of the matter. An admission may be made by means of an electronic communication, as provided for in section 78(b).
206.Subsection (5) provides that the person appointed to investigate the alleged misconduct must provide a report to the Commission and may make a recommendation that the matter is referred to the disciplinary committee of the Commission where there is a probable case of misconduct with sufficient evidence to justify disciplinary proceedings.
207.Subsection (6) provides that the Commission must, where it receives such a recommendation, refer the matter to the disciplinary committee to be dealt with under section 71.
208.Subsection (7) provides that the Commission must pay the fees of the person conducting the investigation, except where the person is a civil servant acting in that capacity, and must pay the person’s outlays (whether the person is a civil servant or not).
209.Subsection (9) defines “misconduct” as including bringing the office of judicial officer into disrepute, failure to provide information under section 51(4) and a failure to pay the annual fee to the Commission within 3 months of the due date. Failure to notify the Commission of public acts of bankruptcy and insolvent events as listed in section 62(2) is also misconduct which can be investigated by the Commission.
210.This section provides that the disciplinary committee may make an order suspending the officer from practice for a specific period where the Commission becomes aware of a complaint alleging misconduct on the part of a judicial officer, where the Commission becomes aware (under section 70) of a bankruptcy or related event involving the officer (or of other concerns surrounding such an event) or where a judicial officer has been charged with an offence.
211.The disciplinary committee may also extend the officer’s suspension or revoke the order. Any decisions under this section are subject to appeal as set out in section 74(1).
212.Where the Commission becomes aware that a judicial officer has been convicted by a court of any offence or admits misconduct under section 67(4)(a), the Commission must refer the matter to the disciplinary committee to be dealt with under section 71.
213.Subsection (3) of section 69 specifies that “offence” means any offence which the judicial officer has been convicted of before or after being granted a commission as a judicial officer, other than any offence disclosed in his or her application for a commission. This is subject, however, to the Rehabilitation of Offenders Act 1974, so that a person applying for a commission as a judicial officer need not disclose spent convictions and a judicial officer cannot be suspended or deprived from office because of such spent convictions.
214.Section 70 allows the Commission to make a referral to the disciplinary committee (to be dealt with under section 71) when it becomes aware of the occurrence of a public act of bankruptcy or related event as listed in section 62(2). The Commission can make such a referral only if it considers that the circumstances of the event give rise to concerns about the officer that the disciplinary committee could not otherwise consider because the circumstances and concerns do not constitute misconduct or a criminal offence. A public act of bankruptcy or a related event could be classified as misconduct if it entails conduct tending to bring the office of judicial officer into disrepute.
215.Subsections (1) and (2) of section 71 provide that in dealing with any matter referred to the disciplinary committee, the committee must consider any report made to the Commission under section 67(5)(a) (report of investigation into alleged misconduct) and any other relevant information held by the Commission and may hold a hearing if it is considered appropriate. Where a judicial officer requests a hearing relating to a matter under consideration, the disciplinary committee must hold a hearing.
216.Subsections (3) and (4) provide that the disciplinary committee must, when holding a hearing, allow the judicial officer, the person who carried out any investigation under section 67 and any other person the committee thinks appropriate, to make a statement orally or in writing and to lead or produce evidence.
217.Subsections (5) and (7) provide that the disciplinary committee may award expenses in any hearing in favour of or against the judicial officer to whom the hearing relates. Expenses awarded in favour of the judicial officer will be paid by the Commission while expenses awarded against the officer will be paid to the Commission by the officer.
218.The Commission may (under subsection (8)) make rules as to the procedures, including the procedures to be followed during a hearing, of the disciplinary committee.
219.Subsection (9) provides that any rules made under subsection (8) must be approved by the Scottish Ministers.
220.Section 72 covers the situation where, after dealing with a matter referred to it, the disciplinary committee is satisfied that it is appropriate to take further action.
221.Where the judicial officer is guilty of misconduct (as defined in section 67(9)), the disciplinary committee can suspend the officer or recommend that the Lord President deprive the officer of office, it can censure the officer, it can restrict the officer’s functions or activities or it can impose a fine. If the officer is guilty of charging excessive fees, the committee can also require the officer to pay back the excessive amounts (with interest).
222.Where the matter reported to the disciplinary committee is one to which section 70 applies (concerns about an officer, falling short of misconduct and not constituting an offence, which arise from a public act of bankruptcy or related event as set out in section 62(2)), the committee may make an order to either suspend the officer from practice or recommend that the Lord President deprive the officer of office or it may make an order restricting the functions or activities of the officer.
223.Where the judicial officer is convicted of an offence (including an offence related to a public act of bankruptcy or related event as set out in section 62(2)), the committee may make an order either suspending the officer or recommending that the Lord President deprive the officer of office, an order censuring the officer or an order restricting the officer’s functions or activities.
224.Subsection (6) provides that where an officer fails to comply with an order imposing a fine, the disciplinary committee may suspend the officer from practice for a specified time or recommend that the Lord President deprive the officer of office.
225.Decisions under this section are subject to appeal as set out in section 74(1). A copy of any decision made by the disciplinary committee must be sent to the officer to whom it relates (see subsection (7)).
226.Section 73 provides that an order imposing a fine is enforceable as if it were an extract decree arbitral bearing a warrant for execution issued by the sheriff. This means the Commission may recover any fine imposed by the order by means of diligence against the judicial officer. The Commission must also notify any order made by the disciplinary committee to the Court of Session, every sheriff principal and the professional association except for an order recommending that the Lord President deprives the officer of office.
227.Section 74 provides that appeals against decisions of the Commission and the disciplinary committee may be made to the Inner House of the Court of Session. The decisions which may be appealed are decisions of the Commission not to recommend that the Lord President grants a person a commission as a judicial officer (section 58(1)), orders of the disciplinary committee suspending the officer from practice pending the outcome of disciplinary or criminal proceedings or extending such a suspension (section 68) and orders made under section 72 suspending an officer, recommending an officer be deprived of office, censuring an officer, restricting an officer’s functions or activities, imposing a fine on an officer or requiring an officer to repay fees and outlays. The decision of the Inner House on an appeal is final. Procedures relating to appeals are to be prescribed by Court of Session rules.
228.Section 75 specifies the conditions under which a judicial officer who has a particular kind of interest may not exercise his or her functions. This covers individual interest as well as circumstances where a debt is owed to or by a business associate or family member of the judicial officer. Any action by the officer in relation to such cases is void which means that it is a nullity. The prohibition on acting covered by this section relates to “prescribed functions”, which are the functions of judicial officers which the Scottish Ministers specify, by regulations, for the purposes of this section (see subsection (7)).
229.Subsection (4) (read with subsection (6)) defines, for the purposes of this section, who is a business associate of the judicial officer and what is meant by the officer having a “controlling interest” in a company or firm.
230.Subsection (5) sets out the list of family members to whom a debt might be due, or who might owe a debt, in relation to which any action by a judicial officer, which is a prescribed function, would be void under this provision. Family members, for the purposes of this section, include a co-habitee of an officer where they are living together as husband and wife and same sex co-habitees living together in a relationship akin to a relationship between husband and wife except that the officer and the person are of the same sex.
231.This section replicates the provisions of section 85 of the 1987 Act, which is now repealed (see schedule 6). It makes it clear that no common law rule which determined the damages payable to a creditor by a messenger-at-arms or sheriff officer for negligent delay or failure to execute diligence by reference to the amount of debt being recovered is revived as a result of that repeal or the provisions in this Part. Nor is any such rule applied to a judicial officer. The effect of this is that the normal rules for quantifying damages for negligence or breach of contract apply.
232.Section 77(1) provides that a judicial officer must exercise that officer’s functions and undertake that officer’s activities with regard to any code of practice published by the Commission under section 55 or 56.
233.Subsection (2) provides that failure to comply with a code of practice in itself will not cause a judicial officer to be prosecuted or liable to any civil proceedings.
234.Subsections (3) and (4) provide that a code of practice will, however, be allowed as evidence in any criminal or civil proceedings. Where a court or tribunal conducting civil or criminal proceedings, or the disciplinary committee of the Commission holding a hearing, considers a code of practice to be relevant to any question arising in the proceedings, the code can be taken into account when determining that question.
235.Section 78 clarifies that references to publishing and notification, admission or representation “in writing” includes doing all of these things by electronic means and by use of electronic communications (defined in section 221).
236.Adjudication for debt is the diligence which creditors may use against heritable (and some other) property of debtors. A creditor who has, say, decree for payment, and who wants to recover that money by diligence against that kind of property must first raise an action of adjudication. Decree in that action gives the creditor some rights over the debtor’s property (such as the ability to remove the debtor from possession and to let the property). However, if the debt is not paid off, a 10-year period (the “legal”) must expire before the creditor can take the next step, raising an action for declarator of expiry of the legal. Decree in that action has the effect of transferring ownership of the property to the creditor.
237.This section abolishes adjudication for debt. That abolition does not affect an action raised before the day this section comes into force provided decree is granted no later than 6 months after that day.
238.This section provides that, following from the abolition of adjudication for debt, the Register of Inhibitions and Adjudication is renamed the Register of Inhibitions. That register has had several titles over the years and various enactments make reference to it by those titles. Subsection (2) provides that all references in those enactments to the Register of Inhibitions and Adjudications, the General Register of Inhibitions or the Register of Adjudication are to be read as references to the Register of Inhibitions.
239.Adjudication in security (which is available to a creditor seeking to enforce a future or contingent debt) is abolished by section 172 of the Act (see paragraph 512512 below).
240.Section 81 creates a new diligence over land to be known as land attachment.
241.Subsection (2) provides that land attachment is competent only if the debt is established by a decree or document of debt, the debtor has been charged to pay the debt and the period for payment has expired without payment being made. It also provides that, where the debtor is an individual, the creditor must provide the debtor with the debt advice and information package within the 12 weeks before registering the notice of land attachment. “Decree” and “document of debt” are defined in section 128. The debt advice and information package is the same package required, in the case of attachment of moveables, by section 10 of the 2002 Act (see subsection (8)).
242.Subsection (3) provides that a land attachment is created over land at the beginning of the day which falls 28 days after the last day on which a notice of land attachment is registered. The reference to the “last day” is necessary because the notice must be registered in both the property register and the personal register and may therefore be registered in one before being registered in the other. The period between registration of the notice and creation of the land attachment gives third parties notice that the attachment, which may affect a deed granted by the debtor, is pending. It covers a “registration gap”, similar to that discussed in respect of sequestration in paragraph 70 above, when a notice of land attachment has been sent for registration but a person dealing with the debtor will not be aware of it because it has yet to appear on any register.
243.Subsection (3) should be read together with the provision in sections 83(6) and 121(1). Under section 83(6), the notice of land attachment is void and no land attachment will be created if the creditor does not register a certificate of service of the notice within the 28-day period. Section 121(1) provides that the notice of land attachment ceases to have effect and, accordingly, no land attachment will be created if the debt is paid, or tendered to, the creditor or others on the creditor’s behalf within that period.
244.Subsection (4) provides for the effect of a notice of land attachment during the period after it is registered and before the land attachment is created. The notice has effect as if it were an inhibition registered against the debtor in the Register of Inhibitions but restricted to the land described in the notice.
245.Subsection (5) provides for the effect of a land attachment. It gives the creditor a subordinate real right over the land described in the notice of land attachment as security for the “sum recoverable by the land attachment”. That sum is the sum (principal and accrued interest) for payment of which the charge was served together with any interest which may be accrued before the debt is paid plus all expenses of the land attachment which are chargeable against the debtor.
246.Subsection (7) gives the Scottish Ministers power, by regulations, to change the 28-day period. This power extends to amending any Act in which that period is mentioned (see, for instance, new section 13A being inserted into the Conveyancing and Feudal Reform (Scotland) Act 1970 by section 85). Any such regulations will be subject to negative resolution procedure (see section 224(3)).
247.Section 82(1) defines what is meant by “land” in this Chapter and, therefore, the property of the debtor which may be attached by land attachment. This is land which is either owned by the debtor or is the right of long lease of land in relation to which the debtor is the tenant.
248.Subsection (2) provides that such land or long lease is attachable only if the debtor has a recorded or registered title to the land or lease. That subsection also excludes proper liferents.
249.In addition, by virtue of subsections (2) and (3), long leases which are not assignable cannot be attached by land attachment. A long lease which is assignable but only with the consent of the landlord is not to be regarded as unassignable and can be attached. Only leases which are not assignable under any circumstances may not be attached by land attachment.
250.“Land” is used throughout this Chapter of this Act (rather than “land or, as the case may be, long lease” but that needs to be read with section 128(2), which modifies such references (including references to ownership, purchase, sale, conveyance and disposition) so that they include references to, for instance, the right of long lease and to assignation.
251.Section 83(1) provides that a notice of land attachment must be in the form prescribed in rules of court and provide a description of the attached land. The description needed will depend on the requirements of the property register within which the notice is the be registered. To be effective, the notice must also be registered in both the relevant property register (either the Register of Sasines or the Land Register – see section 128) and in the Register of Inhibitions.
252.Subsections (2) and (3) provide that a creditor can register a notice of land attachment only where the sum which the creditor has charged the debtor to pay is more than £3,000, or any other sum which the Scottish Ministers prescribe. The power to change this sum is exercisable by regulations subject to affirmative resolution procedure (see section 224(4)(b)(i)).
253.Subsection (4) provides that it is competent to register a single notice of land attachment in relation to two or more sums which the debtor has been charged to pay.
254.Subsection (5) specifies that the notice of land attachment must be served by a judicial officer on the debtor, any person (other than the debtor) who owns the land and any tenant under a long lease of the land, as soon as is practicable after the notice is registered.
255.Subsection (6) provides that if the certificate of service on the debtor is not registered before the 28-day period expires, the notice will be, and will be deemed always to have been, void. Accordingly, no land attachment will be created. Subsection (7) provides for the certificate of service to be in a form prescribed in rules of court and to contain a description of the land to be attached and to be registered in the same way as the notice of land attachment.
256.Section 84 specifies that the creation of a land attachment will not make a moveable debt heritable, which avoids (for example) any affect on rights of succession. This is particularly relevant, if the creditor dies while the land attachment still has effect, in succession to the creditor’s estate.
257.This section inserts a new section 13A into the Conveyancing and Feudal Reform (Scotland) Act 1970 (the “1970 Act”).
258.Section 13(1) of the 1970 Act covers the preference in ranking of standard securities. Where a creditor has registered a standard security over land, and another creditor subsequently registers a standard security over the same land, the first creditor’s preference in ranking is restricted to security for present advances and those future advances which that creditor is obliged to make.
259.Section 13A applies this rule where, instead of a subsequent standard security being registered, a land attachment is created over the same land. That subsequent land attachment, being a real right in security over the land, will have effect on the existing security in the same way as a subsequent standard security. Section 13A provides that it has this effect from the day on which the land attachment is created, provided notice is given to the existing secured creditor of the registration of the notice of land attachment before the expiry of the 28-day period.
260.This section applies where a notice of land attachment is registered and where, during the 28-day period mentioned in section 81(3), the debtor or a tenant of the debtor grants a lease (or sublease) of land specified in the notice. Where a land attachment is created at the end of that period, any such lease which would be reducible were it granted in breach of an inhibition (for which see section 163) is reducible by the creditor.
261.Section 87(1) provides that a land attachment has the effect of assigning the title deeds, searches and all unregistered conveyances affecting the attached land to the creditor. Subsection (2) entitles the creditor, where the land is sold by virtue of the land attachment, to deliver those title deeds and other documents to the purchaser and to assign to that purchaser any right the creditor has to have any title deeds not in the creditor’s possession delivered to the creditor. This mirrors the effect of section 10(4) of the 1970 Act (which operates in a similar way when a creditor registers a standard security).
262.Section 88 of the 1987 Act provides for how diligence may be done where a decree or document of debt is assigned to (or otherwise acquired by) a person who is not the original creditor (for ease of reference, called here the “assignee”). The assignee must apply to the court for warrant authorising the assignee to do any diligence authorised by the original decree or other document.
263.Section 88 of this Act provides for how such assignation or other acquisition affects land attachment. The assignee may take, or continue to take, steps towards enforcing the debt by land attachment provided that (a) before the assignation or other acquisition, a notice of land attachment has been registered; and (b) before taking those steps, the assignee registers a notice in the relevant property register and the Register of Inhibitions. If the assignee so registers notice, the assignee is treated as having been granted a warrant under section 88(4) of the 1987 Act. The notice must be in the form prescribed in rules of court.
264.Section 89(1) applies where a debtor dies after a creditor has taken steps to begin or carry out a land attachment but before a land attachment has been created. Section 90 covers the case where a debtor dies after a land attachment is created.
265.The basic position, as set out in subsection (2), is that any steps taken cease to have effect and the charge served on the debtor becomes void.
266.Subsection (3) provides that nothing in subsection (2) stops the creditor from proceeding to raise, against any executor of the debtor, an action to constitute the debt against the debtor’s estate.
267.Subsection (4) provides that any warrant for diligence in such an action authorises land attachment.
268.Section 90(1) clarifies and applies the existing law on the effect of the death of a debtor on subordinate real rights over his or her land. Where a debtor dies after a land attachment has been created, the land attachment will continue to have effect.
269.Subsection (2) gives the Court of Session power, by rules of court, to modify the procedures under this Chapter to reflect that the debtor is dead and that the land attachment is proceeding. Provisions about the service of notices of applications for warrant for sale and for foreclosure which require the creditor to serve or intimate such applications to the debtor will require to be modified, as will other procedures.
270.A person who has entered into a contract to purchase land from a debtor, but to whom ownership of that land has not yet been transferred, may be concerned that a creditor of the debtor will execute a land attachment affecting that land. Section 91 provides a mechanism under which that person will be informed, if such a land attachment is created, of any attempt by the attaching creditor to sell that land.
271.Subsection (2) provides that such a person may register a notice in the Register of Inhibitions, in the form prescribed in rules of court, for the purpose of receiving intimation of an application under section 92(1) for a warrant for sale of the land. Under section 92(4)(c)(ii), the attaching creditor must carry out a search in that register and must intimate the application to any person who has registered a notice under this section (see section 92(5)(b)). The person who registered the notice may then lodge objections to the application (see section 92(6)) and, subject to sections 99 and 100, may be able to complete title to the land.
272.Section 92 provides for the form and method of applying for a warrant to sell attached land.
Bankruptcy and Diligence etc (Scotland) Act 2007