Home Owner and Debtor Protection (Scotland) Act 2010
Jurisdiction | Scotland |
Citation | 2010 asp 6 |
Year | 2010 |
(1) In section 20 (creditor's rights on default of debtor on calling-up notice) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35) (“the 1970 Act”) , after subsection (2) insert—“ an application under subsection (1) or (1B) ” .for “subsection (1) ” substitute “ subsection (1B) ” , andthe words from “if” to “purposes” are repealed.(5) After subsection (4A) insert—
- “(2A) Where the standard security is over land or a real right in land used to any extent for residential purposes, the creditor is entitled to exercise the rights specified in standard condition 10(2) and (3) (and mentioned in subsections (1) and (2) above) only—
- (a) where the conditions in section 23A of this Act are satisfied, or
- (b) with the warrant of the court, granted on an application under section 24 of this Act.
- “(4) Where the standard security is over land or a real right in land used to any extent for residential purposes—
- (a) the creditor is entitled to exercise the right specified in standard condition 10(2) only—
- (i) where the conditions in section 23A of this Act are satisfied, or
- (ii) with the warrant of the court, granted on an application under section 24 of this Act, and
- “(1) The conditions referred to in sections 20(2A) (a) and 23(4) (a) (i) are that—
- (a) the security subjects are unoccupied; and
- (b) each of the persons specified in subsection (2) below has, in writing—
- (i) certified that that person does not occupy the security subjects and is not aware of the security subjects being occupied by any other person;
- (ii) consented to the exercise by the creditor of the creditor's rights on default; and
- (iii) certified that the consent is given freely and without coercion of any kind.
- “family home” has the meaning given by section 135(1) of the Civil Partnership Act 2004;
- “matrimonial home” has the meaning given by section 22 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981;
- “non-entitled civil partner” has the same meaning as “non-entitled partner” in section 101(1) of the Civil Partnership Act 2004;
- “non-entitled spouse” has the meaning given by section 1 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
- “(1A) Subsection (1) above does not apply in relation to a creditor in a standard security over land or a real right in land used to any extent for residential purposes.
- (1B) A creditor in a standard security of that kind may, where the debtor is in default within the meaning of paragraph (a) , (b) or (c) of standard condition 9(1) , apply to the court for warrant to exercise any of the remedies which the creditor is entitled to exercise on a default within the meaning of standard condition 9(1) (a) .
- (1C) Before making an application under subsection (1B) above the creditor must comply with the pre-action requirements imposed by section 24A of this Act.
- (1D) An application under subsection (1B) above is to be made by summary application (regardless of whether it includes a crave for any other remedy) .
- “(5) The court may, on an application under subsection (1B) above, continue the proceedings or make any other order that it thinks fit; but it may not grant the application unless it is satisfied that—
- (a) the creditor has complied with subsection (1C) above; and
- (b) it is reasonable in the circumstances of the case to do so.
- “(2) Proceedings under subsection (1) by a creditor in a security over land or a real right in land used to any extent for residential purposes are to be brought by summary application (regardless of whether they include a crave for any other remedy) .
- (3) Before making an application under subsection (1) in a case referred to in subsection (2) , the creditor must comply with the pre-action requirements imposed by section 5B.
- “(1) This section applies to an application under section 5(1) by a creditor in a security over land or a real right in land used to any extent for residential purposes.
- (2) The creditor must—
- (a) serve on the proprietor a notice in conformity with Form 1 in Part 2 of the...
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