Legalize / United Kingdom / Scotland / Act of the Scottish Parliament

Bankruptcy and Diligence etc. (Scotland) Act 2007

Type Act of the Scottish Parliament

Publication 2007-01-15

Last updated 2026-08-22

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

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Part 1 — Bankruptcy

Duration of bankruptcy

Discharge of debtor

1

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Bankruptcy restrictions orders and undertakings

2

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Effect of bankruptcy restrictions orders and undertakings

Disqualification from being appointed as receiver

3

(1) Section 51 of the Insolvency Act 1986 (c. 45) (appointment of receiver) is amended as follows.

(2) In subsection (3), after paragraph (b), insert—

(ba) a person subject to a bankruptcy restrictions order;

(3) In subsection (5), after “bankrupt” insert “or a person subject to a bankruptcy restrictions order”.

(4) In subsection (6), after “receivers” insert

; and “bankruptcy restrictions order” means— (a) a bankruptcy restrictions order made under section 56A of the Bankruptcy (Scotland) Act 1985 (c. 66); (b) a bankruptcy restrictions undertaking entered into under section 56G of that Act; (c) a bankruptcy restrictions order made under paragraph 1 of Schedule 4A to this Act; or (d) a bankruptcy restrictions undertaking entered into under paragraph 7 of that Schedule.

Disqualification for nomination, election and holding office as member of local authority

4

In section 31 of the Local Government (Scotland) Act 1973 (c. 65) (disqualifications for nomination, election and holding office as member of local authority)—

(a) after subsection (1)(b), insert—

(ba) he is subject to a bankruptcy restrictions order;

; and

(b) after subsection (3A), insert—

(3B) In subsection (1)(ba) above, “bankruptcy restrictions order” means— (a) a bankruptcy restrictions order made under section 56A of the Bankruptcy (Scotland) Act 1985; (b) a bankruptcy restrictions undertaking entered into under section 56G of that Act; (c) a bankruptcy restrictions order made under paragraph 1 of Schedule 4A to the Insolvency Act 1986 (c. 45); or (d) a bankruptcy restrictions undertaking entered into under paragraph 7 of that Schedule.

Orders relating to disqualification

5

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The trustee in the sequestration

Amalgamation of offices of interim trustee and permanent trustee

6

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Repeal of trustee's residence requirement

7

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Duties of trustee

8

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Grounds for resignation or removal of trustee

9

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Termination of interim trustee's functions

10

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Statutory meeting and election of trustee

11

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Replacement of trustee acting in more than one sequestration

12

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Requirement to hold money in interest bearing account

13

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Debtor applications

14

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Debtor applications by low income, low asset debtors

15

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Jurisdiction

Sequestration proceedings to be competent only before sheriff

16

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Vesting of estate and dealings of debtor

17

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Income received by debtor after sequestration

18

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Debtor's home and other heritable property

19

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Protected trust deeds

Modification of provisions relating to protected trust deeds

20

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...

Modification of composition procedure

21

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Status and powers of Accountant in Bankruptcy

Status of Accountant in Bankruptcy as officer of the court

22

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Accountant in Bankruptcy's power to investigate trustees under protected trust deeds

23

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Offences

Modification of offences under section 67 of the 1985 Act

24

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Miscellaneous and general

Debt limits in sequestrations

25

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Creditor to provide debt advice and information package

26

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Continuation of sequestration proceedings

27

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Abolition of summary administration

28

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Non-vested contingent interest reinvested in debtor

29

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Debtor's requirement to give account of state of affairs

30

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Restriction of debtor's right to appeal under sections 49(6) and 53(6) of the 1985 Act

31

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Status of order on petition to convert protected trust deed into sequestration

32

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Power to provide for lay representation in sequestration proceedings

33

In section 32(1) of the Sheriff Courts (Scotland) Act 1971 (c. 58) (power of Court of Session to regulate civil procedure in sheriff court), after paragraph (l) insert—

(m) permitting a debtor appearing before a sheriff under section 12 of the Bankruptcy (Scotland) Act 1985 (c. 66) (award of sequestration) to be represented, in such circumstances as may be specified in the act of sederunt, by a person who is neither an advocate nor a solicitor.

Treatment of student loans on sequestration

34

(1) In section 73B(12) of the Education (Scotland) Act 1980 (c. 44) (power to make provision in relation to treatment of student loans upon discharge under the 1985 Act), after “receive,” insert “before, on or”.

(2) In paragraph 6 of Schedule 2 to the Education (Student Loans) Act 1990 (c. 6) (treatment of student loans on sequestration), which, notwithstanding its repeal by section 44 of and Schedule 4 to the Teaching and Higher Education Act 1998 (c. 30), is saved by virtue of article 3 of the Teaching and Higher Education Act 1998 (Commencement No. 2 and Transitional Provisions) Order 1998 (S.I. 1998 No. 2004)—

(a) after “Where,” insert “before, on or”; and

(b) after “before” insert “, on”.

Certain regulations under the 1985 Act: procedure

35

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Minor and consequential amendments of the 1985 Act

36

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Part 2 — Floating charges

Registration and creation etc.

Register of Floating Charges

37

(1) The Keeper of the Registers of Scotland (in this Part, the “Keeper”) must establish and maintain a register to be known as the Register of Floating Charges.

(2) The Keeper must accept an application for registration of—

(a) any document delivered to the Keeper in pursuance of section 38, 41, 42, 43 or 44 of this Act; and

(b) any notice delivered to the Keeper in pursuance of section 39 or 45(2) of this Act,

provided that the application is accompanied by such information as the Keeper may require for the purposes of the registration.

(3) On receipt of such an application, the Keeper must note the date of receipt of the application; and, where the application is accepted by the Keeper, that date is to be treated for the purposes of this Part as the date of registration of the document or notice to which the application relates.

(4) The Keeper must, after accepting such an application, complete registration by registering in the Register of Floating Charges the document or notice to which the application relates.

(5) The Keeper must—

(a) make the Register of Floating Charges available for public inspection at all reasonable times;

(b) provide facilities for members of the public to obtain copies of the documents in the Register; and

(c) supply an extract of a document in the Register, certified as a true copy of the original, to any person requesting it.

(6) An extract certified as mentioned in subsection (5)(c) above is sufficient evidence of the original.

(7) The Keeper may charge such fees—

(a) for registering a document or notice in the Register of Floating Charges; or

(b) in relation to anything done under subsection (5) above,

as the Scottish Ministers may by regulations prescribe.

(8) The Scottish Ministers may by regulations make provision as to—

(a) the form and manner in which the Register of Floating Charges is to be maintained;

(b) the form of documents (including notices as mentioned in sections 39(1) and 45(2) of this Act) for registration in that Register, the particulars they are to contain and the manner in which they are to be delivered to the Keeper.

(9) Provision under subsection (8) above may, in particular, facilitate the use—

(a) of electronic communication;

(b) of documents in electronic form (and of certified electronic signatures in documents).

Creation of floating charges

38

(1) It continues to be competent, for the purpose of securing any obligation to which this subsection applies, for a company to grant in favour of the creditor in the obligation a charge (known as a “floating charge”) over all or any part of the property which may from time to time be comprised in the company's property and undertaking.

(2) Subsection (1) above applies to any debt or other obligation incurred or to be incurred by, or binding upon, the company or any other person.

(3) From the coming into force of this section, a floating charge is (subject to subsection (3A) and section 39 of this Act) created only when a document—

(a) granting a floating charge; and

(b) subscribed by the company granting the charge,

is registered in the Register of Floating Charges.

(3A) If a floating charge is granted in favour of a central institution, it is created only when the document granting the floating charge is executed by the company granting the charge.

(4) References in this Part to a document which grants a floating charge are to a document by means of which a floating charge is granted.

Advance notice of floating charges

39

(1) Where a company proposes to grant a floating charge, the company and the person in whose favour the charge is to be granted may apply to have joint notice of the proposed charge registered in the Register of Floating Charges.

(2) Subsection (3) below applies where—

(a) a notice under subsection (1) above is registered in the Register of Floating Charges; and

(b) within 21 days of the notice being so registered, a document—

(i) granting a floating charge conforming with the particulars contained in the notice; and

(ii) subscribed by the company granting the charge,

is registered in the Register of Floating Charges.

(3) Where this subsection applies, the floating charge so created is to be treated as having been created when the notice under subsection (1) above was so registered.

(4) This section does not apply where a company proposes to grant a floating charge in favour of a central institution.

Ranking of floating charges

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(1) Subject to subsections (4) and (5) below, a floating charge—

(a) created on or after the coming into force of this section; and

(b) which has attached to all or any part of the property of a company,

ranks as described in subsection (2) below.

(2) The floating charge referred to in subsection (1) above—

(a) ranks with—

(i) any other floating charge which has attached to that property or any part of it; or

(ii) any fixed security over that property or any part of it,

according to date of creation; and

(b) ranks equally with any floating charge or fixed security referred to in paragraph (a) above which was created on the same date as the floating charge referred to in subsection (1) above.

(3) For the purposes of subsection (2) above—

(a) the date of creation of a fixed security is the date on which the right to the security was constituted as a real right; and

(b) the date of creation of a floating charge subsisting before the coming into force of this section is the date on which the instrument creating the charge was executed by the company granting the charge.

(4) Where all or any part of the property of a company is subject to both—

(a) a floating charge; and

(b) a fixed security arising by operation of law,

the fixed security has priority over the floating charge.

(5) Where the holder of a floating charge over all or any part of the property of a company has received intimation in writing of the subsequent creation of—

(a) another floating charge over the same property or any part of it; or

(b) a fixed security over the same property or any part of it,

the priority of ranking of the first-mentioned charge is restricted to security for the matters referred to in subsection (6) below.

(6) Those matters are—

(a) the present debt incurred (whenever payable);

(b) any future debt which, under the contract to which the charge relates, the holder is required to allow the debtor to incur;

(d) any expenses or outlays which may be reasonably incurred by the holder; and

(e) in the case of a floating charge to secure a contingent liability (other than a liability arising under any further debts incurred from time to time), the maximum sum to which the contingent liability is capable of amounting, whether or not it is contractually limited.

(7) Subsections (1) to (6) above, and any provision made under section 41(1) of this Act, are subject to sections 175 and 176A (provision for preferential debts and share of assets) of the Insolvency Act 1986 (c. 45).

Ranking clauses

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(1) The document granting a floating charge over all or any part of the property of a company may make provision regulating the order in which the charge ranks with any other floating charge or any fixed security (including a future floating charge or fixed security) over that property or any part of it.

(2) Provision under subsection (1) above—

(a) may displace in whole or part—

(i) subsections (1) and (2) of section 40 of this Act;

(ii) subsections (5) and (6) of that section;

(b) may not affect the operation of subsection (4) of that section (whether as against subsections (1) and (2) of that section or other provision under subsection (1) above).

(3) Accordingly, subsections (1), (2), (5) and (6) of that section have effect subject to any provision made under subsection (1) above.

(4) Provision under subsection (1) above is not valid unless it is made with the consent of the holder of any subsisting floating charge, or any subsisting fixed security, which would be adversely affected by the provision.

(5) A document of consent for the purpose of subsection (4) above may be registered in the Register of Floating Charges.

Assignation of floating charges

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(1) A floating charge may be assigned (and the rights under it vested in the assignee) by the registration in the Register of Floating Charges of a document of assignation subscribed by the holder of the charge.

(2) An assignation under subsection (1) above may be in whole or to such extent as may be specified in the document of assignation.

(3) This section is without prejudice to any other enactment, or any rule of law, by virtue of which a floating charge may be assigned.

(4) This section does not apply where a floating charge is assigned (whether in whole or to a specified extent) to or by a central institution.

Alteration of floating charges

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(1) A document of alteration may alter (whether by addition, deletion or substitution of text or otherwise) the terms of a document granting a floating charge.

(2) If (and in so far as) an alteration to the terms of a document granting a floating charge concerns—

(a) the ranking of the charge with any other floating charge or any fixed security; or

(b) the specification of—

(i) the property that is subject to the charge; or

(ii) the obligations that are secured by the charge,

the alteration is not valid unless subsection (3) below is satisfied.

(3) This subsection is satisfied if the alteration is made by a document of alteration which is—

(a) subscribed by—

(i) the company which granted the charge;

(ii) the holder of the charge; and

(iii) the holder of any other subsisting floating charge, or any subsisting fixed security, which would be adversely affected by the alteration; and

(b) registered in the Register of Floating Charges.

(4) Paragraph(a)(i) of subsection (3) above does not apply in respect of an alteration which—

(a) relates only to the ranking of the floating charge first-mentioned in that subsection with any other floating charge or any fixed security; and

(b) does not adversely affect the interests of the company which granted the charge.

(4A) Paragraph (b) of subsection (3) above does not apply in respect of an alteration if—

(a) the holder of the floating charge is a central institution, or

(b) the holder of the floating charge is not a central institution but the alteration is to be made in connection with a floating charge which is held (or which has been or is to be held) by a central institution.

(5) The granting, by the holder of a floating charge, of consent to the release from the scope of the charge of any particular property, or class of property, which is subject to the charge is to be treated as constituting an alteration—

(a) to the terms of the document granting the charge; and

(b) as to the specification of the property that is subject to the charge.

(6) For the purpose of subsection (5) above, property is not to be regarded as released from the scope of a floating charge by reason only of its ceasing to be the property of the company which granted the charge.

Discharge of floating charges

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(1) A floating charge may be discharged by the registration in the Register of Floating Charges of a document of discharge subscribed by the holder of the charge.

(2) A discharge under subsection (1) above may be in whole or to such extent as may be specified in the document of discharge.

(3) This section is without prejudice to any other means by which a floating charge may be discharged or extinguished.

(4) This section does not apply where the floating charge to be discharged (whether in whole or to a specified extent) is or has been held by a central institution.

Effect of floating charges on winding up

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(1) Where a company goes into liquidation, a floating charge created over property of the company attaches to the property to which it relates.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The attachment of a floating charge to property under subsection (1) above is subject to the rights of any person who—

(a) has effectually executed diligence on the property to which the charge relates or any part of it;

(b) holds over that property or any part of it a fixed security ranking in priority to the floating charge; or

(4) Interest accrues in respect of a floating charge which has attached to property until payment is made of any sum due under the charge.

(5) Part IV, except section 185, of the Insolvency Act 1986 has (subject to subsection (1) above) effect in relation to a floating charge as if the charge were a fixed security over the property to which it has attached in respect of the principal of the debt or obligation to which it relates and any interest due or to become due on it.

(6) Subsections (1) to (5) above do not affect the operation of—

(a) sections 53(7) and 54(6) (attachment of floating charge on appointment of receiver) of the Insolvency Act 1986;

(b) sections 175 and 176A of that Act; or

(c) paragraph 115(3) of Schedule B1 (attachment of floating charge on delivery of a notice by an administrator) to that Act.

(7) For the purposes of this section, reference to a company going into liquidation—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) ... is to be construed in accordance with section 247(2) and (3) of the Insolvency Act 1986 (c. 45).

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Repeals, savings and transitional arrangements

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(1) Part XVIII (floating charges: Scotland) of the Companies Act 1985 (c. 6) is repealed.

(2) Nothing in this Part (except sections 40 and 41 so far as they concern the ranking of floating charges subsisting immediately before the coming into force of this section) affects the validity or operation of floating charges subsisting before the coming into force of this section.

(3) So, despite the repeal of Chapters I and III of Part XVIII of that Act by subsection (1) above, the provisions of those Chapters are to be treated as having effect for the purposes of floating charges subsisting immediately before the coming into force of this section.

(4) In particular—

(a) floating charges subsisting immediately before the coming into force of this section rank with each other as they ranked with each other in accordance with section 464 of the Companies Act 1985 immediately before that section was repealed by subsection (1) above; and

(b) a floating charge subsisting immediately before the coming into force of this section ranks with a fixed security so subsisting as it ranked with the security in accordance with section 464 of the Companies Act 1985 immediately before that section was repealed by subsection (1) above.

(5) Section 140(floating charges (Scotland)) of the Companies Act 1989 (c. 40) is repealed (but, despite being repealed, is to be treated as having effect for the purposes of subsections (3) and (4) above).

Interpretation

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In this Part—

“ central institution ” means— the Bank of England,the central bank of a country or territory outside the United Kingdom, orthe European Central Bank;

“company” means an incorporated company (whether or not a company as defined in section 1(1) of the Companies Act 2006);

“fixed security”, in relation to any property of a company, means any security (other than a floating charge or a charge having the character of a floating charge) which on the winding up of the company in Scotland would be treated as an effective security over that property including, in particular, a heritable security (within the meaning of section 9(8) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35)).

Formalities as to documents

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(1) In section 6 (registration of documents) of the Requirements of Writing (Scotland) Act 1995 (c. 7), after subsection (1)(a), insert—

(aa) to register a document in the Register of Floating Charges;

(2) In section 46 (extract decree of reduction to be recorded) of the Conveyancing (Scotland) Act 1924 (c. 27)—

(a) in subsection (2), for the words “This section” substitute “ Subsection (1) above ”; and

(b) after subsection (2), insert—

(3) This section shall apply in relation to a document registered in the Register of Floating Charges as it applies in relation to a deed or other document pertaining to a heritable security which is recorded in the Register of Sasines (and the references to recording are to be read accordingly).

(3) In section 8 (rectification of defectively expressed documents) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), after subsection (5), insert—

(5A) Subsection (5) above applies in relation to document registered in the Register of Floating Charges as it applies in relation to a document recorded in the Register of Sasines (and the references to recording are to be read accordingly).

Industrial and provident societies

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(1) For section 62 (floating charges created by Scottish societies) of the Co-operative and Community Benefit Societies Act 2014 (c. 48) substitute—

(62) (1) Part 2 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (“the 2007 Act”) applies to a registered society as it applies to an incorporated company. (2) Subsection (3) applies where any assets of a registered society are subject to— (a) a floating charge created under Part 2 of the 2007 Act (as applied by this section), and (b) an agricultural charge created under Part 2 of the Agricultural Credits (Scotland) Act 1929. (3) For the purposes of determining the relative ranking of those charges, the following provisions of the 2007 Act apply as if the agricultural charge were a floating charge created under Part 2 of that Act on the date of creation of the agricultural charge— - section 40(1) to (3) (including as subject to section 41(1) to (4)), - section 45(3)(c).

(2) Section 63 (filing of information relating to charges) of that Act is repealed.

(3) In section 64 (notification of charges etc: Scotland) of that Act—

(a) for paragraph (a) of subsection (1) substitute—

(a) the giving to the FCA of notice of any security, except a floating charge, granted by a registered society over any of its assets;

(b) the references to section 63 of that Act are to be treated as references to that section as it had effect immediately before its repeal by subsection (2) above.

Part 3 — Officers of court

Scottish Civil Enforcement Commission

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Advisory Council on Messengers-at-Arms and Sheriff Officers

Advisory Council's annual report

51

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The Advisory Council on Messengers-at-Arms and Sheriff Officers (the “Advisory Council”) must prepare a report on its activities during the whole of each financial year as soon as practicable after the end of the period to which the report relates.

(3) A report prepared under subsection (2) above—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) may include a statistical analysis of the performance by officers of court of their functions and the undertaking by officers of activities during the period to which the report relates or any other period specified by the Advisory Council in the report.

(4) The Advisory Council may, in preparing the report under subsection (2) above, require the professional association designated by regulations under section 63(1)(a) to provide any information provided by virtue of regulations under section 63(1A) which the Advisory Council considers necessary or proper for the purposes of preparing the report.

(5) The Advisory Council must—

(a) send a copy of each report prepared under subsection (2) above to the Scottish Ministers; and

(b) publish the report.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Publication of guidance and other information

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Published information not to enable identification

53

Information—

(a) contained in a report prepared under section 51(2); ...

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

of this Act must not be in a form which identifies or enables the identification of officers of court or persons against whom diligence has been executed.

Register of judicial officers

54

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Code of practice

55

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Publication of information relating to informal debt collection

56

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Judicial officers

57

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Appointment of judicial officer

58

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Annual fee

59

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Abolition of offices of messenger-at-arms and sheriff officer

60

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Regulation of officers of court

61

(1) The Scottish Ministers may, by regulations—

(a) confer functions on;

(b) remove functions from; or

officers of court.

(2) The Scottish Ministers may, by regulations—

(a) prescribe the types of business association which officers of court may form in order to carry out their functions;

(b) make provision about the ownership, membership, management and control of those business associations;

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Before making regulations under subsection (1) or (2) above, the Scottish Ministers must consult —

(a) the Lord President of the Court of Session; and

(b) each sheriff principal.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duty to notify Lord President and sheriff principal of bankruptcy etc.

62

(1) Where, in relation to an officer of court, any of the events mentioned in subsection (2) below occurs, the officer must, before the expiry of the period of 28 days beginning with the occurrence of the event—

(a) in the case of a messenger-at-arms, notify the Lord President of the Court of Session in writing of the event;

(b) in the case of a sheriff officer, notify the sheriff principal from whom the officer holds a commission in writing of the event.

(2) The events referred to in subsection (1) above are—

(a) the sequestration of the officer of court;

(b) the granting by the officer of a trust deed for creditors;

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) the making, under the Company Directors Disqualification Act 1986 (c. 46), of a disqualification order against the officer;

(f) where the officer is a partner in a partnership the sole or main business of which is the provision of officer of court services—

(i) the granting by the partnership of a trust deed for creditors; or

(ii) the sequestration of the partnership;

(g) where the officer is a member in a limited liability partnership the sole or main business of which is the provision of officer of court services, the commencement of the winding up of that partnership on the ground of insolvency.

(3) In subsection (2) above, “trust deed” has the meaning given by section 5(4A) of the 1985 Act.

Officers of court's professional association

63

(1) The Scottish Ministers, by regulations—

(a) must designate an association(in this Part, the “professional association”) as the professional association for officers of court; and

(b) may make provision in relation to the functions, constitution and procedures of the professional association.

(1A) Regulations under subsection (1) may require an officer of court to provide such information as the professional association reasonably considers necessary.

(2) The Scottish Ministers may not make regulations under subsection (1) above without first consulting—

(a) the Lord President of the Court of Session;

(aa) each sheriff principal;

(b) representatives of the professional association or, as the case may be, proposed professional association; and

(3) A person may not hold a commission as an officer of court unless that person is a member of the professional association.

Code of practice

63A

(1) The professional association—

(a) must prepare and publish a code of practice in relation to the functions of officers of court; and

(b) may prepare and publish such a code in relation to the undertaking of activities by such officers.

(2) The professional association may revise the whole or any part of a code published under this section.

(3) Where a code or any part of a code is revised under subsection (2), the professional association—

(a) in a case where the revision results in substantial changes, must publish the revised code;

(b) in any other case, may publish the revised code.

(4) The professional association must not publish a code of practice or a revised code of practice under this section without the prior approval of the Lord President of the Court of Session.

(5) The professional association must send a copy of each code of practice published under this section to—

(a) the Scottish Ministers;

(b) the Lord President of the Court of Session;

(d) each officer of court.

Duty of professional association to forward complaints ...

64

Where the professional association receives a complaint about an officer of court or any services provided by the officer, the association must send details of the complaint and any material which accompanies it —

(a) to the Lord President of the Court of Session;

(b) in the case of a complaint about a messenger-at-arms, to the sheriff principal from whom the messenger-at-arms holds a commission as a sheriff officer; and

(c) in the case of a complaint about a sheriff officer, to the sheriff principal from whom the sheriff officer holds a commission.

Information from professional association

65

The Lord President of the Court of Session or any sheriff principal may require the professional association to provide any information the Lord President or, as the case may be, sheriff principal considers necessary or proper for the purposes of—

(a) any inspection under section 66 of this Act;

(b) any investigation under section 79(2) of the 1987 Act; or

Annual fee for officers of court

Annual fee

65A

(1) The professional association may make rules requiring every officer of court holding a commission to pay an annual fee to the association.

(2) Rules made under subsection (1) above may include provision—

(a) specifying the date by which the fee must be paid each year;

(b) specifying the manner in which it must be paid; and

(3) Rules under this section may be made only with the approval of the Lord President of the Court of Session.

Investigation of officers of court

Inspection of officer of court

66

(1) The Lord President of the Court of Session or any sheriff principal may appoint a person to inspect the work or particular aspects of the work of an officer of court.

(2) A person appointed under subsection (1) above must, if required to do so by the Lord President or, as the case may be, the sheriff principal, inquire into any activities undertaken for remuneration by the officer of court.

(3) A person appointed under subsection (1) above must submit a report of the inspection and of any inquiry under subsection (2) above to the Lord President or, as the case may be, the sheriff principal.

(4) The Scottish Ministers must pay a person appointed under subsection (1) above—

(a) a fee, unless the person is employed in the civil service and the person carries out the inspection in that person's capacity as a civil servant; and

(b) any outlays reasonably incurred by the person,

in connection with an inspection, inquiry and report under this section.

Investigation of alleged misconduct by judicial officer

67

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Suspension of judicial officer pending outcome of disciplinary or criminal proceedings

68

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commission's duty in relation to offences or misconduct by judicial officer

69

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commission's power in relation to judicial officer's bankruptcy etc.

70

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disciplinary proceedings

Referrals to the disciplinary committee

71

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disciplinary committee's powers

72

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Orders under sections 68 and 72: supplementary provision

73

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeals

Appeals from decisions under sections 58, 68 and 72

74

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Miscellaneous

Officer of court's actions void where officer has interest

75

(1) Anything done by an officer of court in exercising or purporting to exercise a prescribed function in relation to a matter in which the officer has an interest is void.

(2) An officer of court has an interest in a matter where the matter—

(a) is one in which the officer has an interest as an individual; or

(b) consists of or includes a debt in relation to which any of the circumstances mentioned in subsection (3) below apply.

(3) The circumstances referred to in subsection (2)(b) above are that the debt is due to or by—

(a) a business associate of the officer of court;

(b) a member of the officer's family; or

(i) is a director or partner of that company or firm;

(ii) holds, either alone or along with an other person, a controlling interest in that company or firm; or

(iii) has a pecuniary interest in that company or firm and the sole or main business of the company or firm is the purchase of debts for enforcement.

(4) Any reference in subsection (3) above to—

(a) a business associate of an officer of court is to be construed as a reference to a co-director, partner, employer, employee, agent or principal of the officer;

(b) a controlling interest in a company is to be construed as a reference to an interest giving a person control of a company within the meaning of section 840 of the Income and Corporation Taxes Act 1988 (c. 1) (meaning of “control”).

(5) Any reference in subsection (3) above to a member of an officer of court's family is to be construed as a reference to—

(a) the spouse of the officer;

(b) a person living together with the officer as husband and wife;

(d) a person living with the officer in a relationship which has the characteristics of the relationship between a husband and wife except that the person and the officer are of the same sex;

(e) a parent of the officer;

(f) a brother or sister of the officer;

(g) a child of the officer, including—

(i) a stepchild; and

(ii) any child brought up or treated by the officer or any person mentioned in paragraph (b), (c) or (d) above as a child of the officer or, as the case may be, of that person;

(h) a grandchild of the officer,

and any relationships of the half blood or by affinity are to be construed as relationships of the full blood.

(6) In subsection (4)(a) above, “principal” does not include a principal in a contract for the carrying out by the officer of court of the prescribed function in relation to the debt concerned.

(7) In subsections (1) and (6) above, “prescribed function” means any function conferred on an officer of court by virtue of this Act or any other enactment which the Scottish Ministers by regulations specify for the purposes of this section.

Measure of damages payable by judicial officer for negligence or other fault

76

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Effect of code of practice

77

(1) An officer of court must, in exercising the officer's functions or undertaking any activities, have regard to the provisions (so far as they are applicable) of any code of practice published under section 63A of this Act.

(2) A failure on the part of an officer of court to comply with any provision of a code of practice does not of itself render the officer liable to any criminal or civil proceedings.

(3) A code of practice is admissible in evidence in any criminal or civil proceedings.

(4) If any provision of a code of practice appears to—

(a) the court or tribunal conducting any civil or criminal proceedings; or

(b) a relevant court (within the meaning of subsection (8) of section 79 of the 1987 Act (investigation of alleged misconduct)) in disciplinary proceedings under that section;

to be relevant to any question arising in the proceedings, that provision of the code may be taken into account in determining that question.

Electronic publications and communications

78

In this Part—

(a) references to “publishing” include publishing by electronic means and cognate expressions are to be construed accordingly; and

(b) any reference to a notification, ... being in writing includes a reference to that notification, ... being an electronic communication.

Part 4 — Land attachment and residual attachment

Chapter 1 — Abolition of adjudication for debt

Abolition of adjudication for debt

79

(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.

Renaming of the Register of Inhibitions and Adjudications

80

(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

is to be construed as a reference to the Register of Inhibitions.

Chapter 2 — Attachment of land

Land attachment

81

(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;

(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”).

Attachable land

82

(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

(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.

Notice of land attachment

83

(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

(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 officer of court 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

(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.

Consequences of land attachment

Debts secured by land attachment not rendered heritable

84

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.

Restriction on priority of ranking of certain securities

85

After section 13 of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35), insert—

(13A) (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 dulyregistered or 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.

Lease granted after registration of notice of land attachment

86

(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

(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.

Assignation of title deeds etc.

87

(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.

Acquisition of right to execute land attachment

88

(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.

Effect of debtor's death before land attachment created

89

(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.

Effect of debtor's death after land attachment created

90

(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.

Caveat by purchaser under missives

91

(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.

Preparations for sale of attached land

Application for warrant to sell attached land

92

(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

(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;

(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.

Notice to local authority of application for warrant for sale

93

(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).

Preliminary hearing on application for warrant to sell

94

(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.

Valuation report

95

(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.

Creditor's duties prior to full hearing on application for warrant for sale

96

(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.

Full hearing on application for warrant for sale

97

(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;

(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.

Application for warrant for sale of sole or main residence

98

(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;

(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);

(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

the matters mentioned there.

(7) Where the sheriff makes, under section 97(2) of this Act, an order granting a warrant for sale, the sheriff may suspend the effect of the warrant for a period not exceeding 1 year beginning with the day on which the order is made.

(8) For the purposes of subsection (1) above, a dwellinghouse may be a sole or main residence irrespective of whether it is used, to any extent, by the debtor or a person mentioned in subsection (2) above for the purposes of any profession, trade or business.

(9) In this section—

“child” means—a child under the age of 16 years; andincludes—a stepchild; andany child brought up or treated by any person to whom subsection (3) above applies or by the debtor or the owner as a child of that person, of the debtor or of the owner;

“dwellinghouse” includes any yard, garden, outbuilding or other pertinents; and

“non-entitled spouse” is to be construed in accordance with section 1(1) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (c. 59).

Protection of purchaser under contract where creditor applies for warrant for sale

99

(1) This section applies where—

(a) the creditor applies under section 92(1) of this Act for a warrant for sale of attached land; and

(b) a person, at whose instance a notice was, by virtue of section 91 of this Act, registered (in this section, a “prospective purchaser”), has lodged objections to the application.

(2) At the hearing under section 97(1) of this Act, the sheriff may, if satisfied as to the matters mentioned in subsection (3) below, make an order—

(a) sisting the application;

(b) requiring the prospective purchaser to pay the price under the contract to the creditor; and

(3) The matters are that—

(a) the prospective purchaser did not, in entering into the contract for the purchase of the land, seek to defeat the rights of creditors of the debtor; and

(b) both the prospective purchaser and the debtor will proceed with the purchase under the contract without undue delay.

(4) Section 116 of this Act applies to the proceeds of sale paid to the creditor in pursuance of an order under subsection (2) above as it applies to a sale in pursuance of a warrant for sale subject to the modification that references to the “appointed person” are references to the “creditor”.

Protection of purchaser under contract where warrant for sale granted

100

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