The Bankruptcy and Diligence etc. (Scotland) Act 2007 (Commencement No. 8 and Transitional) Order 2011/179 (Scottish SI) brings into force Part 15 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (“the Act”) on the 4th April 2011 which relates to Actions for removing from heritable property.

From 4 April 2011, any case which involves enforcement of a decree for removing from heritable property must comply with the procedure outlined in s214 – 219 of the Act. The provisions make service of a Charge for Removing mandatory prior to an eviction taking place.
 

What decrees do the new provisions cover?

For the purposes of the new procedure, “a decree for removing from heritable property”, in terms of the legislation, includes most forms of decree for ejection or removing, including ejections by lenders, rented properties under the Housing (Scotland) Acts, and some properties covered by the Agricultural Holdings (Scotland) Act 2003.

Some common scenarios which will fall under the new provisions will include a landlord seeking to eject a tenant; a trustee in sequestration seeking vacant possession of the bankrupt’s property in order to sell for the benefit of unsecured creditors; and a secured lender seeking to possess and sell a borrower’s property following the calling-up of its security.

What are the new requirements?

A party seeking to enforce a decree or document falling within the definition (‘pursuer’), must now serve a Charge for Removing, giving the occupant a minimum of 14 days notice of an eviction. On cause shown, a Court may dispense with or vary this notice period. The form of Charge can be seen here.

Following expiry of the period of Charge the defender and any occupant deriving right or having permission from the defender, and their effects, may be removed from the subjects.

The judicial officer attending to the eviction must also now make an inventory of any items removed from the property and, if so ordered by the Court, take steps for the ‘preservation’ of these items. The Court may specifically order that the occupant is to be liable for the costs of preserving the items removed. No definition of ‘preservation’ is given and no time limits for this are specified.

An eviction must be carried out between 8am and 8pm and, unless prior authority is obtained from the Court, must not take place on a Sunday or public holiday.

The new provisions will not apply to decrees for removing obtained, granted or made, as the case may, prior to 4 April 2011.

Cost Implications

It is unclear whether a fee will be payable for the preparation of the inventories. The Acts of Sederunt governing fees charged by sheriff officers do not specify a separate statutory charge and it is yet to be confirmed if this is to be expected. There is already a statutory fee for service of the Charge (currently £48.80 for service on a single party).

For pursuers who have not been serving Charges for Removing as a matter of course, there will be the additional cost in now having to do so. In some circumstances, the pursuer may be entitled to pass this cost on, for example where a secured lender recovers possession of a property and sells, costs may be recovered in terms of the relevant mortgage standard condition. However, pursuers should be prepared for an increase in up front outlays, particularly if required to preserve effects removed from a property upon eviction.

Summary

Many pursuers will already give 14 or more days notice of eviction, as a matter of good practice. These new provisions are formalising that practice, in the spirit of ensuring that there is no undue hardship on defenders being removed from their property and to ensure time is allowed for alternative arrangements to be made. Likewise, inventories of effects within the property are often provided by sheriff officers as a matter of course, following eviction. If no statutory fee is prescribed in relation to these inventories, it may be that the sheriff officers will use their discretion and simply absorb any associated cost. What may be of concern is the attitude to be adopted by the Courts in respect of a pursuer being ordered to preserve the belongings of those removed from property and the costs of doing so. However, the risk of the occupier being liable for storage costs may be deterrent enough to items being left within a property.
 

For Further Information

For further information please contact Andrew Foyle or your usual contact at Anderson Strathern.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.