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736.Where property is in the shared ownership of the tenant and a third party, the hypothec can secure only the tenant’s interest in the property (subsection (7)).
737.Subsection (8) provides that the landlord’s hypothec is security for any rent for which the date for payment has passed and payment has not been made (so it cannot be security for future rent due) and that it continues as long as the rent remains unpaid. This overrides the common law rule that the hypothec secures 1 year’s rent and lapses if not enforced by sequestration for rent within 1 month of the date the rent was due (see subsection (9)). The change made by subsection (8) will apply to any pre-existing hypothec.
738.Subsections (2) to (9) (but not subsection (3)) affect a landlord’s right of hypothec which arose before this section comes into force and which subsists on that date (see subsection (11)).
739.Sections 209 and 210 make amendments of the 1987 Act and the 2002 Act in relation to the need to serve a charge before executing certain diligences; the availability of time to pay where diligence is proceeding on a summary warrant; and the test the courts must apply in granting debtors time to pay.
740.Summary warrants are used by—
local authorities to collect council tax, non-domestic rates, and community charge (poll tax) arrears;
water authorities to collect water and sewerage charges; and
Her Majesty’s Revenue and Customs to collect taxes and duties.
741.Time to pay directions and time to pay orders under the 1987 Act, if granted by the court on application by the debtor, “freeze”—
further diligence by the creditor; or
any right of the creditor to apply for sequestration of the debtor.
742.The 1987 Act also requires that a statutory form of charge to pay on 14 days’ notice (28 days if the debtor’s whereabouts are unknown or the debtor is outside the UK) is served on the debtor in some circumstances, and that certain diligences may be used only if the debtor has failed to pay as charged. Time to pay and charge to pay under the 1987 Act have not previously applied to debts enforced under a summary warrant.
743.Section 209(1) amends section 10 of the 2002 Act by repealing subsection (4) of that section. Attachment under the 2002 Act is competent only after a charge to pay has been served on the debtor and the days of the charge have expired without payment. Subsection (4) provided that no charge needed to be served for attachment where the decree being enforced was a summary warrant. The repeal of that subsection means a charge is now required in all cases.
744.Subsection (2) amends section 1 of the 1987 Act by repealing section 1(5)(e). That paragraph bars a court from making a time to pay direction where the action relates to various debts being pursued by local authorities and other public creditors. The effect of this repeal is that it is now competent for the court, when granting decree for payment in a court action, to make a time to pay direction where the debt relates to—
rates; or
council tax, council water charges, community charge or community water charge.
745.Subsection (3) amends section 5 of the 1987 Act by repealing section 5(4)(c) and (e). Those paragraphs bar a court from making a time to pay order where the debt is being pursued under a summary warrant or where the action relates to various debts being pursued by local authorities and other public creditors. The effect of these repeals is that the general bar against time to pay orders on summary warrant debt is removed, and that it is competent for the court to make a time to pay order after decree in respect of the types of debt formerly covered by section 1(5)(e) of the 1987 Act. It should be noted that it remains incompetent to grant a time to pay order in relation to debts of the types listed in section 5(4)(d) and (f) of the 1987 Act (that is, various taxes and duties and social security contributions) regardless of whether they are enforced under a summary warrant or an ordinary decree for payment. Subsection (4) contains amendments consequential on the changes made by subsections (2) and (3).
746.Section 90 of the 1987 Act makes general provision about charges to pay for attachment and for earnings arrestment. Subsection (5) amends section 90 in consequence of the amendment contained in subsection (1) so that the references in section 90 to an attachment being incompetent unless a charge has been served are removed. Provision about that is now contained in the 2002 Act. Subsection (5) also amends section 90 with the effect that a charge to pay is required before a creditor with a debt enforceable under a summary warrant can use the diligence of earnings arrestment.
747.Paragraphs (b), (d) and (e) of subsection (5) further amend section 90 with the effect that the provisions relating to charges to pay (i.e. that it must be in the form set out in rules of court, that diligence must be executed within 2 years of the charge and that a further charge can be served to reconstitute the right to do diligence) apply to all diligences where a charge to pay must be served before diligence is competent (this includes the new diligences of money attachment, land attachment and residual attachment as well as arrestment under a summary warrant decree).
748.Section 210 amends the 1987 Act so that the court is under a duty to grant a time to pay direction or a time to pay order if it is satisfied that it is reasonable in all circumstances, having regard to certain factors. It does so by amending sections 1 (time to pay directions) and 5 (time to pay orders) of the 1987 Act to assist the judiciary in deciding whether or not to grant an application for a time to pay direction or a time to pay order. It requires them to take certain factors into account before deciding on the application. These factors are listed in new sections 1(1A)(a) to (e) and 5(2A)(a) to (e) of the 1987 Act.
749.Section 210 should be read together with the amendments of sections 3 and 10 of the 1987 Act contained in paragraphs 16(3)(a) and (9)(a) of schedule 5 to this Act, which are consequential on (for example) the new diligence of land attachment.
750.Section 3 of the 1987 Act allows a debtor or a creditor to apply to the court which made a time to pay direction for variation or recall of the direction or for the recall or restriction of certain listed diligences. Section 3(1)(a), as amended, will have the effect of requiring the court to consider the reasonableness of the application in the light of all the circumstances.
751.Section 10 of the 1987 Act makes similar provision to section 3 but for time to pay orders. Section 10(1)(a), as amended, will have the effect of requiring the sheriff to consider the reasonableness of the application to vary or recall the time to pay order in the light of all the circumstances.
752.Section 211 amends the 2002 Act to enable debt payment programmes under that Act to include an element of debt relief. The section inserts new section 7A into the 2002 Act.
753.New section 7A(1) gives the Scottish Ministers the power by regulations to make provision in relation to debt payment programmes to provide, through such programmes, an element of debt relief. The power allows such programmes to be set up in such a way that debtors do not have to pay off the whole amounts due to creditors under the programmes and for the writing-off at the end of the programme of any debts outstanding.
754.Subsection (2) sets out the particular ways in which that power might be used (although it is not an exhaustive list). These include specifying—
the minimum part of the debt that will have to be repaid;
the circumstances when the creditor’s consent is needed and how that consent is to be signified;
the debtor’s liability to pay interest, fees or charges arising from the debt;
the creditor’s rights to recover such interest, fees or charges; and
how, on completion of a debt payment programme, outstanding debts can be discharged.
755.Subsection (3) provides that subsections (3) and (4) of section 7 of the 2002 Act apply to regulations made under new section 7A. This allows the Scottish Ministers to pilot debt payment programmes with an element of debt relief for limited periods and, after assessing the pilot scheme, to provide that such programmes continue to be available.
756.Section 211(4) amends section 62 of the 2002 Act to provide that regulations made under section 7A(1) are subject to affirmative resolution procedure.
757.Section 212 makes further amendments of the 2002 Act.
758.Subsection (2) repeals the requirement that a debtor signs an application for a debt payment programme. Subsection (4) repeals the requirement that a debtor or creditor, as appropriate, signs an application for a variation of a debt payment programme. Subsection (3) provides that the requirements set out in sections 3(1) and (2) of the 2002 Act in relation to an application for the approval or the variation of a debt payment programme, which include the requirement for the debtor to obtain the advice of a money adviser, may be changed by regulations made under section 7(1). This amendment is linked to the amendments of section 7 contained in subsection (5).
759.That subsection amends section 7(2) to enable regulations to provide about the circumstances in which some or all of the duties of a money adviser may be carried out instead by an approved intermediary. Subsection (6) clarifies that an approved intermediary is a person (other than a money adviser) who has been approved by the Scottish Ministers as a person who may give a debtor money advice for the purposes of section 3(1) of the 2002 Act. Subsection (5) amends section 7(2) to provide that regulations under section 7(1) may cover the class of person who may act as an approved intermediary and the functions of an approved intermediary.
760.Subsection (5) also amends section 7(2) to allow regulations under section 7(1) to provide about—
the circumstances in which a debtor can make an application for the approval or variation of a debt payment programme where the debtor has not obtained money advice (whether from a money adviser or an approved intermediary) under section 3(1) of the 2002 Act; and
the way in which seeking creditors’ consent to applications for approval of debt payment programmes or the making of such applications affects the rights and remedies of creditors or other third parties.
761.Subsection (7) amends the definition of “debt advice and information package” to give the Scottish Civil Enforcement Commission, established under section 50 of this Act, the power to determine the content of that package of documents and removing the power of the Scottish Ministers to do so.
762.Subsections (8) and (10) to (13) make a number of amendments of the 2002 Act to facilitate certain aspects of the attachment process which are required to be carried out by judicial officers. It was unclear under the 2002 Act as originally enacted whether the same judicial officer has to be used for certain stages of the attachment process or whether a different officer could be used at each stage. The amendments make it clear that each step in the attachment process can be carried out by any judicial officer.
763.Subsection (9) inserts new section 19A into the 2002 Act.
764.New section 19A gives judicial officers power in relation to the urgent removal of attached articles. Subsection (1) provides that a judicial officer may remove an attached article without notice if it is considered necessary to secure the article (e.g. because there is a risk it may be damaged or destroyed) or to preserve its value and there is no time to obtain an order from a sheriff under section 20(1)(a) of the 2002 Act (which allows such removal). In these circumstances an article will be taken to the nearest convenient premises of the debtor or the person in possession of the item but if the debtor or person does not have any premises which are convenient or the judicial officer thinks those premises are unsuitable for storing the article the officer can take the articles to other secure premises (see subsection (2)). By virtue of subsection (3) (which applies section 19(4)), the judicial officer may open shut and lockfast places in order to remove the attached articles.
765.Subsection (14) inserts new subsections (1A) and (1B) into section 31 of the 2002 Act. Subsection (1A) provides that where an article is sold at auction at less than the value assigned to it when it was attached, the difference between that price and the value will be credited against the sum owed. In other words the debtor benefits from having the debt reduced by the amount the item was valued at even if it does not actually sell for that value at auction. Subsection (1B) provides that where an article has been damaged and revalued and the damage was not caused by the fault of the debtor and no sum has been consigned into the court by a third party to compensate for the damage, the revaluation is disregarded for the purposes of subsection (1A) and the original value is the value that is credited against the debt after the sale even if the sale price of the item was less than that.
766.Subsection (15) inserts new section 60A into the 2002 Act.
767.This section makes provision for electronic signatures where any document that requires to be signed under the 2002 Act is submitted in electronic form (regulations or rules of court made under the Act may permit certain documents to be submitted electronically). The signature has to be a certified electronic signature which complies with the requirements of the Electronic Communications Act 2000 (c.7).
768.Subsection (16)(a) inserts sub-paragraph (oa) into paragraph 1 of schedule 1 to the 2002 Act which provides for the expenses of serving a notice on the debtor setting out the date when an officer intends to enter a dwellinghouse to execute an exceptional attachment order to be chargeable against the debtor.
769.Subsection (16)(b) inserts new paragraph 1A into schedule 1 to the 2002 Act which provides that the expenses of removing attached articles, opening shut and lockfast places for the purposes of removing the articles and storing those articles cannot be charged against the debtor if the articles are removed under the urgent removal provisions of new section 19A(1).
770.This section introduces schedule 4.
771.Schedule 4, introduced by section 213, makes amendments to the law relating to admiralty actions and the arrestment of ships.
772.Paragraph 1(c) inserts a new subsection (2) into section 48 of the Administration of Justice Act 1956 (the “1956 Act”) defining the term “maritime lien” for the purposes of the 1956 Act and any other legislation where that term is used. In Scots law a “lien” is a right in security over property where that property is in the possession of the creditor. Where a creditor has a right in security over moveable property which is not in the creditor’s possession that right is known in Scots law as a “hypothec”. However, in international maritime conventions and in other jurisdictions, where a creditor in a maritime claim has a real right in security over a ship, cargo or other maritime property (such as wreck, flotsam or jetsam) which is not necessarily in the creditor’s possession, the right is referred to as a “maritime lien”. Strictly, a maritime lien is a type of hypothec in Scots law and the insertion of the definition in new subsection (2) makes this clear whilst retaining the usage of the term “maritime lien” to maintain consistency with international usage.
773.Paragraph 2 provides for consequential amendments arising from paragraph 1.
774.The list of claims in respect of which a vessel may be arrested is contained in section 47(2) of the 1956 Act (the “section 47(2) list”). Paragraph 3 extends section 47(2)(r) of the 1956 Act so that it applies to claims arising out of any type of charge held over a ship.
775.Paragraph 4(a) inserts the term “respondentia” into paragraph (h) of the section 47(2) list. Respondentia is a security granted over the cargo contained in a ship for a loan advanced in consideration of a particular voyage.
776.Paragraph 4(b) inserts new subsection (2A) after the section 47(2) list. This gives the label “admiralty action” to any action (whether in the Court of Session or sheriff court) enforcing a claim in the section 47(2) list.
777.Paragraph 5 provides for two amendments consequential on the creation of the term “admiralty action”.
778.Paragraph 6 inserts new section 47A after section 47 the 1956 Act to set out the jurisdictional limits of a warrant to arrest in rem a ship, cargo or other maritime property granted by a sheriff.
779.Section 47A(1) provides that the warrant may be executed either within the territorial jurisdiction of the sheriff court from which the warrant was granted, or anywhere in Scotland provided the ship, cargo or maritime property was within the territorial jurisdiction of the sheriff court which granted the warrant, when the warrant was granted.
780.Subsection (2) makes it clear that an order for the sale of an arrested ship may be made in respect of a ship even although the ship is not situated in the sheriffdom when the order is made, where a warrant for arrestment in rem granted by the sheriff has been executed.
781.Paragraph 7(2) makes amendments to section 47(1) of the 1956 Act which provide that arrestment on the dependence of a ship, or other maritime property which is not cargo, is competent only if, when the ship in question is the ship with which the action is concerned, the defender is the owner of the ship or a share in the ship, or is the demise charterer of the ship, at the time when the arrestment is executed. It continues to be competent to arrest another ship on the dependence providing the defender owns all the shares in that ship.
782.Note that the restrictions imposed by section 47(1) do not apply to the arrestment of cargo which is specifically excluded from this provision by the amendment in paragraph 7(2)(a).
783.Paragraph 7(3) inserts new subsections (1A) and (1B) into section 47 of the 1956 Act. These subsections provide that when a ship has been arrested on the dependence of an action, a warrant cannot be granted to arrest on the dependence of the same action the same ship or any other ship which the defender owns at least a share in unless the pursuer can demonstrate good cause for the second arrestment. This is consistent with the wording in article 3(1) of the leading international convention on the arrestment of ships (the Brussels Arrest Convention of 1952).
784.Paragraph 7(4) amends section 47(3) of the 1956 Act (which provides for the arrestment of a ship to enforce a claim specified in paragraphs (p) to (s) of the section 47(2) list) making it clear that an arrestment to which this provision applies may arrest a share in a ship rather than the whole ship.
785.Paragraph 8 inserts new section 47B into the 1956 Act.
786.Section 47B(1) provides the court with the power to award the creditor the expenses of obtaining warrant for and executing an arrestment of a ship, cargo or other maritime property on the dependence. But the court may modify or refuse the creditor’s right to these expenses if the creditor was unreasonable in applying for a warrant or if the court thinks it is reasonable to modify or refuse the award of expenses (subsection (3)).
787.Subsection (2), entitles the defender to expenses in opposing the grant of the warrant where warrant is granted but the creditor was unreasonable in applying for the warrant. Again the court can modify or refuse these expenses if satisfied that it is reasonable to do so. In particular, the court should take account of the outcome of the action.
788.If any other question arises in relation to the expenses of obtaining or opposing a warrant or of executing the arrestment, subsection (5) provides the court with the discretion to deal with it.
789.Subsection (6) provides that expenses of obtaining warrant for arrestment or opposing the warrant are to be treated as expenses of process.
790.Subsection (7) provides that any legislation or rule of law which deals with the recovery of expenses of executing an arrestment on the dependence of a court action which are chargeable against the debtor is not affected by the rules set down by subsections (1) to (4).
791.Subsection (8) provides the court with discretion to deal with the expenses incurred in obtaining a warrant granted for arrestment in rem in enforcing a claim listed in paragraphs (p) to (s) of the section 47(2) list or in opposing an application for it.
792.Paragraph 9 inserts new sections 47C and 47D into the 1956 Act.
793.Section 47C(1) provides that an arrestment of cargo can be executed only where the cargo is on board a ship when the arrestment is executed. Cargo which is not on board a ship is subject to the diligence of attachment (provided the nature of cargo does not make it exempt from attachment on some other ground). The amendment of section 11 of the 2002 Act made by paragraph 10 prevents cargo from being attached when it is on board a ship.
794.Arrestment of moveable property is normally competent only when the property is in the hands of someone other than the debtor. Attachment is usually the appropriate diligence to use when moveable property is in the hands of the debtor. Subsection (2) makes it clear that, as an exception to the normal position, cargo on board a ship can be arrested where it is in the hands of the debtor or a person acting on the debtor’s behalf.
795.Section 47D has the effect that where cargo on board a ship is arrested, the ship is itself treated as if it has been arrested until the cargo is taken off the ship. The ship is therefore prevented from setting sail and the creditor can apply for ancillary warrants to dismantle the ship or have it brought into harbour providing it can be shown that this course of action is necessary.
796.See paragraph 793793 above.
797.Paragraph 11(a) inserts new subsections (5A) and (5B) into section 47 of the 1956 Act. The new subsections provide that an arrestment of a ship, cargo or other maritime property can be executed no matter where the ship or maritime property is situated so long as it is within the territorial jurisdiction of the court (note that cargo must be on board a ship if it is to be arrested). In other words, a ship is still treated as a ship even where it has run aground or is in a dry dock.
798.Paragraph 11(b) amends subsection (6) of section 47 to make it clear that a ship (or cargo on board it) cannot be arrested while the ship is on passage.
799.Paragraph 12 inserts new sections 47E to 47H into the 1956 Act dealing with demise charterers. A demise charter is a type of lease of a ship (often including the services of the master and crew). A demise charterer takes possession of the ship and operates the ship. The length of demise charters can vary from short (1 or 2 years) to long (20 years or the lifespan of the ship). Often the charterer has an option to buy the ship outright at the end of the agreed term. In practice the demise charterer is treated as the owner of the ship as the charterer has control over the operation of the ship and over the master and crew. But the owner in the legal sense remains the person who granted the charter.
800.New section 47E makes special provision to allow the pursuer in an admiralty action against a demise charterer to be entitled to complete diligence by judicial sale of a ship which has been arrested on the dependence of the action. The sale is competent even though the ship is likely to belong to a third party.
801.Subsection (2) provides for termination of the arrestment of the ship if the owner or the demise charterer either pays the debt due, or offers the sum in payment and that offer is not accepted within a reasonable time.
802.Under subsection (3), the court may make an order for the sale of the ship on behalf of the pursuer and, under subsection (4), the court must rank any claims on the proceeds of the sale (but taking into account sections 47F and 47G - see paragraphs 804804 and 805805 below).
803.Subsection (5) provides that a ship so sold transfers to the buyer free from any other claim or encumbrance, including any claim of the previous owner who granted the demise charter. The buyer becomes the new owner of the ship and not just the new demise charterer of it.
804.New section 47F provides that in competitions in ranking in respect of the proceeds of the judicial sale of a ship, or a share of a ship, arrestment of the ship enforcing the ship owner’s debts will be preferred to arrestment enforcing those of the demise charterer even if the arrestment relating to the owner was executed after the arrestment relating to the demise charterer.
805.New section 47G provides that a creditor of a demise charterer who has arrested the chartered ship on the dependence of an action against the demise charterer will be entitled to claim a dividend or preference (if any) resulting from the sale of the ship in the event of the ship’s owner being sequestrated or wound up. The creditor has no rights over the proceeds of sale of any other asset belonging to the owner. Subsection (3) applies the provisions of the 1985 Act and the Insolvency Act 1986, which have the effect of equalising diligences executed within 60 days before a sequestration or winding up, to an arrestment against a demise charterer where the ship owner is sequestrated or wound up.
806.New section 47H has the effect that where a pursuer wishes to raise an action against a demise charterer to enforce a claim listed in the section 47(2) list but the demise charterer is not within the jurisdiction of the court, the pursuer can arrest the ship under demise charter (providing it is within the court’s jurisdiction) to found jurisdiction for the action and allow it to be heard by that court.
807.Paragraph 13 amends section 6(c) of the Sheriff Courts (Scotland) Act 1907. It is linked with the provision in new section 47H and it makes clear that the arrestment of a ship within the jurisdiction of the sheriff and which is under demise charter will bring the demise charterer within the jurisdiction of the sheriff even though the charterer would not normally be subject to that jurisdiction.
808.This Part sets out a new procedure which is to be followed when ejecting (otherwise known as removing or evicting) a person from heritable property. It does not change the legal grounds on which a person may be removed from heritable property. Instead, it applies general rules for the process of removing.
809.“Removing” has a general meaning which covers any surrender of heritable property, for example, the surrender of a lease (domestic or commercial) by a tenant. It also has a more specific meaning of an action by which a heritable proprietor, such as a landlord, seeks to recover possession of his or her property from a tenant. The conclusion of such an action is the granting of a “warrant of ejection” by the court by virtue of which occupants of the property can be evicted by judicial officers.
810.“Ejection” is the term used for an action where an owner or possessor of heritable property seeks to recover possession from an occupant of the property who has no legal right or title to occupy the property – for example, a squatter.
811.The law has developed in a piecemeal fashion over many years, leading to (for example) different rules for “removing” an occupier who has or had a right to be in heritable property (e.g. a leased office or a dwellinghouse on mortgage default) and for “ejecting” an occupier who has never had a right to be there (such as a squatter).
812.This area of law covers a variety of types of removings, for example, those related to public sector tenancies, private tenancies, commercial tenancies, agricultural tenancies, debt enforcement and squatters. Much of the law is set down in statute and the terminology used in various statutes has given rise to confusion about the procedures which may be invoked for the purpose of obtaining authority to eject someone from land. This part sets out new, general procedures to apply consistently to all types of removings.
813.Section 214 sets out the types of removings that will be covered by the new procedures. These include removings which are authorised by virtue of court decrees, warrants or the types of documents set out in subsection (3). This covers a variety of removings, from ejection of squatters (subsection (2)(b)) to tenants whose housing is subject to a demolition order (subsection (2)(g)). For the purposes of this Part, these are collectively labelled “actions for removing from heritable property” and decrees, warrants and other orders obtained in such actions are labelled “decrees for removing from heritable property”.
814.Power is given to the Scottish Ministers by subsection (4) to modify the definitions of decree, warrant or document. If new types of decree, warrant or document are created in the future, this power could be used to extend the new provisions in this Part to them. This power is exercisable by regulations subject to negative resolution procedure.
815.The section following section 214 makes provision for the making of court rules to govern the procedure and practice in execution of a decree of removing from heritable property.
816.This section provides that the procedure and practice to be followed in executing any decree for removing from heritable property may be set out in rules of court. Such rules may, in particular, make provision about when a removing is completed (by prescribing notices and forms) and about how effects removed from premises must be dealt with (for example, where they should be taken). Section 218 is also relevant here (see paragraphs 827 to 830 below).
817.Section 216(1) requires a defender to be given 14 days’ notice (by way of the service of a charge) before any removing of the defender and of any effects (furniture and so on) can take place.
818.Subsection (2) provides for other occupants of the property who derive right to occupy from the defender to also be removed, and for their effects to be removed, provided the defender has been charged in accordance with subsection (1). Once the period of charge has expired the defender, any other occupants of the property and their belongings can be removed without further warning.
819.Subsection (3) authorises judicial officers to open shut and locked places whilst carrying out the removing, and requires them to make an inventory of any effects removed.
820.Subsection (4) gives the court power to vary the 14-day period or dispense with a charge altogether, on cause shown. This could be used, for example, where the person on whose behalf the removing was being carried out, for example, a landlord, was able to satisfy the court that there was a serious risk of the property being badly damaged during the 14-day period.
821.Subsection (5) simplifies the removings procedure by abolishing any need in Court of Session cases to apply for separate letters of ejection. The warrant in the original application will therefore be enough.
822.Subsection (6) provides that the form of charge may be prescribed by the Scottish Ministers by regulations. Until this power is exercised judicial officers and court rules may provide different forms of charge for different circumstances. Regulations made under this power are subject to the negative resolution procedure.
823.A consequential amendment is made in paragraph 6(3) of schedule 5. It ensures consistency in the period of charge for removings under section 7 of the Sheriff Courts (Scotland) Extracts Act 1892. It does this by amending the period of charge for such removings in section 7(4) of that Act from 48 hours to 14 days.
824.Section 217 sets out the dates and times when it will not be lawful to carry out a removing (i.e. on a Sunday, on a public holiday or before 8 a.m. or after 8 p.m.).
825.It will be possible to prohibit carrying out removings on additional days by way of court rules.
826.It also enables a judicial officer to execute a decree for removing from heritable property before 8 a.m. or after 8 p.m. with permission from the sheriff for the district where the property is located.
827.Section 218 gives the court a discretionary power, when granting decree for removing, to order the pursuer to preserve the effects (furniture and so on) of the defender or of any other person being removed.
828.This power in subsection (1) does not affect the right of the person carrying out the removing to clear the land and premises of any effects. This is sometimes called leaving the premises “void and redd”.
829.The court is being given power to make an order for preservation where it is persuaded that this is appropriate, which may, for example, be the case when such an order will reduce the risk of damage to the occupier’s goods.
830.Subsection (2) gives the court power to hold the defender liable for any costs (for example, storage costs) incurred by the person in whose favour the decree for removing is granted.
831.Section 219 abolishes the law on finding caution for “violent profits”. Violent profits are due for illegal (i.e. “violent”) possession of property, as distinct from (say) rent due from the period before a lease was determined. They are penal damages due on top of any actual loss suffered, so that (say) a landlord is entitled to double the amount of rent that would have been paid.
832.Caution is another word for a security provided by the defender in a court action. Caution is usually obtained by the lodging of money with the court, or by taking out an insurance policy (“bond of caution”) that guarantees any payment that may be found due.
833.Under the law before this section, where the pursuer in any removing or ejection claimed compensation for violent profits, the court could order the defender in the action to find caution for violent profits. Where it did so, and if the defender were unable to find caution then the defence would not be heard, and warrant of ejection would be granted without further procedure.
834.The effect of subsection (2) is to make it clear that it is no longer competent for the court to order the defender to find caution for violent profits. Compensation for violent profits is not abolished and may still be claimed.
835.Subsections (1), (3) and (4) provide that the court will be able to order the defender to find caution in the usual way for any non-penal damages that may be claimed by the person seeking to remove the defender, and for which the defender or any occupant deriving right or having permission from the defender may be responsible.
836.A consequential repeal, due to the abolition of caution for violent profits, is set out in schedule 6. That is the repeal of the Ejection Caution Act 1594.
837.Section 220 deals with the disclosure of information. Subsection (1) gives the Scottish Ministers a power to provide by regulations for the obtaining of information by creditors about debtors by making an application to the sheriff. These regulations may provide for the disclosure of that information to creditors to assist diligence and enforcement of payment of debts due under decrees and document of debts. Subsection (2) sets out some of the things that regulations under subsection (1) could cover. For example, regulations could provide for the circumstances in which applications could be made, the powers and duties of the court in relation to such applications, the types of information about the debtor which may be obtained and from whom and for unauthorised use or disclosure of any information obtained to be an offence.
838.Subsection (3) states that the regulations cannot provide for the debtor to be ordered to disclose information. However, a bank with which a debtor has an account, or an employer of the debtor, could be required to provide information. Subsections (4) and (5) provide for penalties to be applied when an offence is provided for by regulations and set out the maximum levels of penalties which the regulations may impose. Subsection (6) makes it clear that any regulations under subsection (1) do not affect (and do not override) any existing legislation or common law about the power to disclose or use information, or to order its disclosure or use.
839.Subsection (7) states that the disclosure or use of information under the regulations is not to be regarded as a breach of any restriction on the disclosure or use of such information.
840.Subsection (8) details the powers the Scottish Ministers have to vary the definitions of “decree” and “document of debt”.
841.By virtue of section 224(4)(b), the first set of regulations made under section 220(1) are to be subject to the affirmative resolution procedure of the Scottish Parliament. Subsequent sets of regulations may be subject either to affirmative or negative procedure in the Scottish Parliament, depending on which procedure the Scottish Ministers consider appropriate, by virtue of section 224(5) read with section 224(3).
Bankruptcy and Diligence etc (Scotland) Act 2007