What is diligence?

 

Diligence is the term for various processes of debt enforcement in Scottish law.

A creditor can use diligence if someone who owes them money has failed to pay a sum due. The creditor must have a decree (court order) enforceable in Scotland, or a document of debt such as a Summary Warrant before they can carry out diligence.

The court order gives the creditor authority to recover money due to them using whichever method of legal debt enforcement they choose. In most cases, the creditor must also serve a Charge for Payment and issue a Debt Advice and Information Package before using diligence.

The law of diligence can be complex. Creditors considering debt enforcement through diligence are advised to seek the advice of a solicitor who may charge for their services.

People who are struggling to deal with their debt or whose creditors are taking action against them can contact a money adviser. Money Advice Scotland or Citizens Advice Scotland can give information on where to find an adviser in their local area.

This section is intended to give a broad overview of diligence. It is not a full statement of the law nor does it provide a full description of each of the processes.

There are several processes available to a creditor to try to recover money owed to them, including:


Diligence against earnings

Earnings arrestment, current maintenance arrestment and conjoined arrestment orders are ways for creditors to enforce the payment of debt. These arrestments, known collectively as diligence against earnings, allow a creditor to instruct a debtor's employer to make a deduction from the debtor's earnings.

Earnings arrestment

Earnings arrestment is used to make a deduction from a debtor's earnings for enforcement of a single debt. A creditor must be in possession of a decree (or relevant document of debt) and must have issued the debtor with a Charge for Payment, which must have expired, before proceeding with diligence against earnings. However where the debt is being pursued by a Fines Enforcement Officer for an unpaid court fine, no Charge for Payment is required. Where the debtor is an individual, creditors, including Fines Enforcement Officers, must also have provided a Debt Advice and Information Package.

Current maintenance arrestment

Current maintenance arrestment can be used to enforce the payment of maintenance, such as a regular allowance awarded by a court on divorce, when the debtor is in default. A creditor must have a current maintenance order from the court on which the debtor has defaulted and, where the debtor is an individual, the creditor must also have provided them with a Debt Advice and Information Package.

Conjoined arrestment order

A conjoined arrestment order is an order granted by the court to enforce payment of two or more of the same type of debts, at the same time. For example, an earnings arrestment and current maintenance arrestment may be in place at the same time, as they are different diligences, but two earnings arrestments must be joined together and treated as one arrestment.

Both earnings arrestment and current maintenance arrestment require the debtor's employer to deduct an amount from the debtor's net earnings (earnings after tax and national insurance), on each pay-day, and pass that deduction to the creditor. For conjoined arrestment orders, the debtor's employer is required to make a deduction and pass it to the court to distribute the funds.

Calculating deductions

The amount that can be deducted by way of earnings arrestment is calculated from deduction tables provided in updated regulations. Tables are provided for daily, weekly and monthly earnings.

The amount that will be deducted depends on the amount of earnings the debtor receives and the frequency of pay. The employer will not make a deduction if the debtor earns less than the lowest amount on the table. For current maintenance arrestment the amount deducted is calculated in accordance with section 53 of the Debtors (Scotland) Act 1987 and a minimum amount of daily earnings is protected from deduction.

Where there is an earnings arrestment and a current maintenance arrestment against the same debtor, and the debtor does not earn enough to meet both deductions, a formula is used to calculate how much should be deducted for each creditor. This formula is detailed in section 199 of the Bankruptcy and Diligence etc. (Scotland) Act 2007.

The legislation dealing with diligence against earnings is contained within Part 3 and Schedule 2 of the Debtors (Scotland) Act 1987. The deduction amounts for earnings arrestments and protected daily earnings in a CMA are updated by Regulation approximately every three years. Recent updated regulations contain the most relevant information.

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Arrestment

Arrestment allows a creditor to seize a debtor's moveable property, such as funds or goods held in storage, where that property is in the possession of a third party. For example, arrestment can be used against money held in a debtor's bank account(s).

A creditor must have a decree (or relevant document of debt) before proceeding with arrestment. Unlike other diligences, for most creditors, there is no requirement to serve a Charge for Payment prior to using this diligence. However if the creditor is a public creditor, such as a local authority or Her Majesty's Revenue and Customs, and they have pursued the debt through a special abbreviated court process known as summary warrant, a charge must still be served.

The creditor must ask a sheriff officer to serve a schedule of arrestment on the third party (the arrestee) which prevents the arrestee releasing funds and goods held to the debtor. Where funds are attached as a result of the arrestment, the amount arrested is limited to either, the amount the arrestee holds for the debtor, or the total amount (including all charges, expenses and interest) due to the creditor, whichever is less. Where arrested funds are insufficient to cover the whole amount owed and the arrestee also holds goods belonging to the debtor, then all of those goods are also arrested, regardless of value.

The arrestee has a statutory duty to send the creditor, the debtor and anyone else who has claimed ownership of the funds or goods, a form of disclosure within three weeks from the date the arrestment schedule was served. The form of disclosure details the nature and value, as far as it is known, of the items arrested.

If funds held by a bank or any other financial institution are arrested, there is a minimum amount which is protected from the arrestment. This is known as the protected minimum balance and only the balance above that sum can be arrested. The protected minimum balance for funds held by financial institutions from 6 April 2016 is £494.01.

Where funds are arrested, they are automatically released by the arrestee to the creditor 14 weeks after the date the arrestment is carried out. The debtor can also choose to give written authority (called a 'mandate') for the arrestee to give arrested funds or goods to the creditor sooner.

The automatic release of funds will not take place in cases where an objection has been lodged. The debtor, arrestee or any other interested party has the right to lodge a notice of objection by making an application to the sheriff, after which a hearing will be held. If the objection is upheld, the sheriff can order the arrestment to be restricted (in which case only part of the funds are given to the creditor) or recalled (where the funds are restored to their original position).

Where goods have been arrested, and the debtor has not signed a mandate, the creditor must raise an action of furthcoming with the court. An action of furthcoming is an application to the court to authorise the release of funds or goods to the creditor.

Arrestment can also be used when an application for a decree is under consideration by the court but has not yet been decided. In these circumstances this can be used to secure funds or goods pending the outcome of the application and is a form of diligence on the dependence.

The Bankruptcy and Diligence etc. (Scotland) Act 2007 introduced sections 73A - 73T into the Debtors (Scotland) Act 1987 from 22 April 2009 and made changes to many aspects of arrestment, particularly in relation to the arrestment of funds. Section 73D, which specifies when a debt advice and information package should be provided for arrestment, has not yet been brought into force. Aspects of arrestment not changed by the 2007 Act are still provided for by common law.

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Inhibitions

Inhibition is a diligence which prohibits a defender (or debtor) from dealing with his heritable property after the inhibition takes effect. Heritable property is land and other immoveable property (houses, commercial premises etc.) owned by the defender.

Inhibition is a personal diligence against the defender. While it is in place, it prevents the defender from selling, transferring or otherwise disposing of his property. It also prohibits the defender from securing any new loans against the property.

Inhibition can also be used when an action for the payment of debt is under consideration by the court but a decree has not yet been granted. This action is used to secure the debtor's property pending the outcome of the court action and is a form of diligence on the dependence.

Inhibition affects all heritable property owned by the debtor, except when it is limited by the court 'on the dependence' of an action or where the decree is granted in respect of an obligation to perform a particular act (for example, to transfer heritable property to someone else). An inhibition which is limited only applies to the property specified in the action, or specified by the Sheriff.

A creditor must have a decree (or relevant document of debt) before proceeding with inhibition. A schedule of inhibition must be served on the debtor and, where the debtor is an individual and the action is in respect of debt, the creditor must also provide a Debt Advice and Information Package. Generally the inhibition takes effect from the day it is registered in the Register of Inhibitions and Adjudications following service of the schedule of inhibition in accordance with section 155 of the Titles to Land Consolidation (Scotland) Act 1868. The exception to this is where a prior 'Notice of Inhibition' has been registered in which case the effect of the inhibition is backdated to the date the schedule of inhibition is served. This exception only applies where that service is registered before the expiry of 21 days from the registration of the Notice.

The debtor is prohibited from entering into any dealings with his heritable property for a period of five years. After five years, the inhibition ceases to have effect.

The inhibition does not give the creditor any preference if the debtor becomes bankrupt or in any other process where there is ranking.

Part 5 of the Bankruptcy & Diligence etc (Scotland) Act 2007, which commenced on 22 April 2009, made provision for many aspects of inhibition previously dealt with by common law.

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Attachment

Attachment allows a creditor to seize a debtor's moveable property as a means of recovering money owed. Unlike arrestment, which is used against property held by a third party, attachment can be used to seize property owned by the debtor and in their possession. Attachment cannot be used to seize goods in the debtor's dwellinghouse, unless an order for exceptional attachment been granted by the sheriff.

The creditor must have a decree (or relevant document of debt) and have issued the debtor with a Charge for Payment, which must have expired, before proceeding with attachment. Where the debtor is an individual, the creditor must also have provided them with a Debt Advice and Information Package.

Section 11 of the Debt Arrangement and Attachment (Scotland) Act 2002 lists certain items that cannot be attached. These items include tools of trade or books required by the debtor for their profession, any vehicles the use of which is reasonably required by the debtor and does not exceed a specified value, and mobile homes used as the debtor's main residence.

There are certain days and times when an attachment cannot be carried out unless prior authority has been granted by the sheriff. Attachment may not be carried out on Sundays and public holidays, before 8am or after 8pm, and if started within these times it cannot continue past 8pm. The sheriff officer carrying out the attachment has the power to 'open shut and lockfast places' in order to attach and value goods and must arrange for a professional valuation where considered appropriate.

Within 14 days of carrying out the attachment, the sheriff officer must make a report to the sheriff. Once the report has been received by the sheriff, the sheriff officer can arrange to remove the attached items and sell them at auction, which the sheriff officer must attend to record any items sold. Money obtained at auction may be used to pay the sheriff officer's fees and expenses, then pay the creditor what he is owed. Any surplus is returned to the debtor. If the items do not sell, ownership of the goods passes to the creditor.

Attachment can also be used when an application for a decree is under consideration by the court but has not yet been decided. This preventative measure can be used to secure the debtor's property pending the outcome of a court action and is known as interim attachment.

The legislation dealing with attachment can be found in Part 2 of the Debt Arrangement and Attachment (Scotland) Act 2002.

Interim attachment

Interim attachment is a provisional diligence, similar to diligence on the dependence. Interim attachment protects the interests of creditors whilst a court action progresses. It effectively restricts the debtor's ability to deal with attached moveable assets in their possession pending the outcome of the action, but does not allow the creditor to remove or sell the attached items. The court may, upon application any time after interim attachment, make provision for the security of attached articles.

The scope of interim attachment is limited and excludes articles specified in section 11 of Debt Arrangement & Attachment (Scotland) Act 2002 as well as articles within a dwellinghouse, perishable items and certain items connected to the trade of the debtor.

As with diligence on the dependence, prior to a warrant for interim attachment being granted, a date must be set for a hearing in all cases. This gives the debtor and any other person having an interest the opportunity to be make representation. In many instances this hearing will be held prior to warrant being granted. However, where the court is satisfied that the creditor has a good case in the main action or that there is a real risk that the creditor could be prejudiced in some way prior to the action being decided, then a warrant can be granted prior to the hearing.

This interim diligence does not allow the creditor to take steps to dispose of the attached items and when a decree is granted, a further valuation and attachment must be carried out before the creditor can proceed to sell attached goods.

The legislation regarding interim attachment can be found in part 1A of the Debt Arrangement & Attachment (Scotland) Act 2002.

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Exceptional attachment

There is a special procedure for the attachment of non-essential articles kept in a dwellinghouse. The procedure, known as exceptional attachment, can only be used in exceptional circumstances.

An exceptional attachment order authorises the attachment, removal and auction of non-essential assets belonging to the debtor and kept in a dwellinghouse. Before granting an order the sheriff will take a number of matters into consideration including the nature of the debt, whether the debtor resides in the dwellinghouse, whether they have had money advice and whether there is, or has been, any agreement between the debtor and creditor for the payment of the debt.

The sheriff will satisfy himself that the creditor has taken reasonable steps to negotiate a settlement of the debt with the debtor. The sheriff will also check that the creditor has already executed or attempted to execute an arrestment and an earnings arrestment and that there is a reasonable prospect that any sums recovered through exceptional attachment would produce the aggregate of chargeable expenses and £100.

Unlike ordinary attachment, articles attached under authority of an exceptional attachment order are removed immediately from the dwellinghouse unless it is impractical to do so. Once removed, attached articles may not be auctioned before seven days have elapsed from the date of removal. During this seven day period the debtor may apply to the sheriff for an order that will cease the attachment and return the attached articles to the debtor, if the sheriff considers this appropriate in the circumstances.

The legislation dealing with exceptional attachment can be found in Part 3 of the Debt Arrangement and Attachment (Scotland) Act 2002.

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Money attachment

Money attachment allows a creditor to attach money (cash including coins and banknotes in a foreign currency, postal orders, banking instruments etc) which is held on a debtor's premises although money in a dwellinghouse cannot be attached.

A creditor must be in possession of a decree (or relevant document of debt) and must have issued the debtor with a Charge for Payment, which must have expired, before proceeding with money attachment. Where the debtor is an individual, the creditor must also have provided them with a Debt Advice and Information Package.

There are certain days and times when a money attachment cannot be carried out unless prior authority has been granted by the sheriff. Money attachment may not be carried out on Sundays and public holidays, before 8am or after 8pm, and if started within these times it cannot continue past 8pm. The sheriff officer carrying out the attachment has the power to 'open shut and lockfast places' in order to carry out a money attachment.

The sheriff officer carrying out the money attachment must make a detailed report to the sheriff (and copy it to the debtor, the creditor and any other person who has asserted that the money attached is not owned by the debtor) within 14 days of the attachment.

If the debtor thinks the attachment is unduly harsh or that the sheriff officer has not carried out the attachment correctly, or a third party claims to own the money (or own it in common with the debtor), then an application may be made to the sheriff to have the money returned. If it is thought the attached money might deteriorate in value, the creditor, debtor or sheriff officer may all apply for the immediate release of the attached money.

Once the report of the attachment has been made, the creditor may apply to the sheriff for a payment order authorising the release of the attached funds. The application for the payment order must be within 14 days of the report of the attachment being made.

The payment order allows the sheriff officer to realise the value of the attached money, including presenting cheques for payment.

Once the money has been realised the sheriff officer can dispose of the funds, retaining their own fees and outlays and paying the creditor the amount recoverable by the money attachment. Any surplus funds are returned to the debtor. Within 14 days of making payments to the creditor, the sheriff officer must give a full and final statement of the money attachment to the sheriff.

Legislation relating to money attachment can be found in Part 8 of the Bankruptcy and Diligence etc. (Scotland) Act 2007.

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Landlord's hypothec

The landlord's hypothec arises automatically and gives a landlord a right in security over moveable property belonging to the tenant within let premises. It is available only in respect of unpaid rent and subsists as long as the rent remains unpaid.

The hypothec operates in a similar way to a standard security, giving the landlord priority in any claim where there is ranking. If a tenant is subject to insolvency proceedings such as bankruptcy or liquidation, the landlord has a priority over other creditors regarding the property secured by the hypothec. If the tenant is not subject to an insolvency procedure, the landlord's methods of recovery are the same as for any other creditor.

The hypothec is not available over property which is kept in a dwellinghouse, on agricultural land, or on a croft nor is it available over property which does not belong to the tenant, or property which has been acquired by a third party in good faith.

The rules regarding the landlord's hypothec are largely in common law although certain aspects were modified by the commencement of section 208 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 on 1 April 2008.

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Adjudication for debt

Adjudication for debt is a long established but rarely used diligence which is exclusively a Court of Session process. Adjudication for debt gives creditors a right or security over heritable (and some other) property owned by the debtor. It can be used alone or as a follow-on process from inhibition.

Before taking steps to use adjudication for debt, a creditor must be in possession of a decree (or relevant document of debt).

The creditor will normally (although not necessarily) register a 'notice of summons of adjudication' in the Register of Inhibitions and Adjudications. This has the effect of an inhibition against the debtor, limited to the property specified in the action and preventing the debtor from disposing of his property. Once a decree of adjudication is granted, an extract of the decree is registered in the relevant land register (Land Register or Sasine Register as appropriate). An abbreviate of the decree may also be registered in the Register of Inhibitions and Adjudications.

Upon registration, the adjudication effectively gives the creditor a judicial security over the adjudged property, but this does not permit the creditor to sell. It does, however, allow the creditor, if they choose, to raise an action to remove the debtor from the property, grant leases of the property and, through the action of maills and duties, collect rents from tenants.

After the expiry of one year and a day, adjudication gives the adjudging creditor a preference over other creditors, apart from those holding prior or equal ranking securities. During the period between adjudication and the creation of the preference it is possible for other creditors to raise a petition for the bankruptcy of the debtor and thus equalise their position with the adjudging creditor.

It is only if the debt remains unpaid after the expiry of at least 10 years from the granting of the decree of adjudication that the creditor can proceed to the second stage of the diligence and apply to the Court of Session for a 'declarator of expiry of the legal'. In this context the 'legal' refers to the period of 10 years allowed for the debtor to redeem his property following the adjudication. If the debtor does not settle the debt upon the raising of this action, decree will be granted, the debtor's ability to redeem the debt is 'foreclosed' and the creditor becomes the owner and can sell the property.

Part 4, Chapter 1 (Sections 79 and 80) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 will, once commenced, abolish adjudication for debt and consequently rename the Register of Inhibitions and Adjudications. No date has been set for commencement of this provision.

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Maills and duties

Maills and duties is a diligence which is is available to heritable creditors, where the property over which they have a security is let. It gives a heritable creditor the power to receive payments of rent due to be paid to the debtor, directly from the tenant who has leased the property.

This diligence is not available to creditors holding a standard security and is rarely used.

Section 207 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 provides for the abolition of maills and duties, but has not yet been commenced. The abolition of maills and duties will be considered along with the abolition of adjudication for debt.

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Admiralty arrestment

Admiralty arrestment is a type of diligence relating to the arrestment of ships and cargo on board ships for debt due. Generally, arrestment of a ship prevents it from sailing to its next destination until the arrestment is recalled or the debtor provides alternative security. Admiralty arrestments are relatively uncommon but may be for claims of some considerable value.

The term 'admiralty' relates to the right and power to apply the law over maritime property.

While most admiralty actions in Scotland are raised in the Court of Session, local sheriff courts also have jurisdiction within their own areas. Generally, jurisdiction for an admiralty action may be where the defender (debtor) has his residence or place of business. It may also be where the cause of the action arose, in a court which has already heard an action relating to the same incident and where jurisdiction has been agreed or a ship owned by the defender has been arrested to found jurisdiction.

There are three types of admiralty arrestment:

  • Arrestment on the dependence - used to secure a claim against the owner of a ship. Unlike other forms of arrestment on the dependence, the ship does not have to be in the hands of a third party in order to be arrested - it can be arrested in the hands of the owner
  • Arrestment in rem - an arrestment carried out to enforce a claim against the ship itself or against some other piece of maritime property. Generally, arrestment in rem may only be used to enforce a maritime lien such as, for example, claims arising as a result of a collision or claims by crew members for wages due for service on a particular ship. Arrestment in rem also founds jurisdiction against the vessel
  • Arrestment to found jurisdiction - an action brought specifically to establish jurisdiction in Scotland but not having the effect of detaining the vessel. Unless followed by arrestment on the dependence, the vessel is free to sail

Before carrying out an admiralty arrestment, the pursuer (creditor) must obtain a warrant to arrest by presenting a summons to the relevant court, setting out the case for arrestment. Once the warrant is granted the arrestment is carried out by an officer of the court (a Messenger at Arms or a Sheriff Officer) who physically attends the vessel.

Part 14 and Schedule 4 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 were brought into force on 1st July 2007 and modernised the language and process of the current law on admiralty actions and ship arrestment by introducing changes to the Administration of Justice Act 1956.

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Dilligence on the dependence

Diligence on the dependence is a provisional measure which can be used to secure funds, goods or property to prevent the debtor from disposing of them whilst the action is ongoing. A creditor may, at any time while a court action is ongoing, apply to the court for authority to carry out arrestment or inhibition on the dependence of the action.

A date must be set for a hearing in all cases to give the debtor, and any other person having an interest, the opportunity to make representations. In many instances this hearing will be held prior to warrant for diligence on the dependence being granted. However, where it appears to the court that the creditor has a prima facie case in the main action or that there is a real risk that the creditor could be prejudiced in some way prior to the action being decided, then a warrant can be granted prior to the hearing.

Arrestment on the dependence

Arrestment on the dependence prevents the debtor from disposing of funds or goods held by a third party. When granting warrant for arrestment on the dependence, the court may choose to limit the amount of funds that can be arrested. Arrestment on the dependence converts to arrestment in execution upon granting of a decree in favour of the creditor.

Inhibition on the dependence

Inhibition on the dependence prohibits the debtor from disposing of or otherwise transacting with heritable property pending the outcome of a court action and, the court may limit the effect of inhibition to specified property. Inhibition on the dependence automatically continues as an inhibition in execution once decree in the original action is granted. Where inhibition has been limited on the dependence, the granting of a decree (providing an extract of that decree along with the prescribed form of notice is registered - see the Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order 2009) widens the effect of the inhibition so that it applies to all of the debtor's heritable property, except in cases where the original action was brought to require the debtor to implement a specific obligation.

The legislation relating to diligence on the dependence can be found in part 1A of The Debtors (Scotland) Act 1987.

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Land attachment

Part 4, Chapter 2 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 introduces a new diligence over land owned by a debtor which is intended, together with residual attachment, to replace the existing diligence of adjudication for debt. Land attachment has not yet been commenced.

Land attachment is intended to provide a diligence which allows unsecured creditors to enforce debt by taking action against a debtor's land. In this context 'land' means land including buildings and other structures, land covered by water and long leases of land of which the debtor is the tenant. Land attachment will give the creditor a 'subordinate real right' over the attached land as security for the sum recoverable by the land attachment.

Land attachment will require the debt to be constituted by decree or document of debt and the service of a Charge for Payment upon the debtor. Where the debtor is an individual, the creditor will also be required to provide a Debt Advice and Information Package no earlier than 12 weeks before registering a notice of land attachment.

Land attachment is designed as a two-stage process whereby the creditor can secure the amount owed by the attachment, but can only bring about the sale of land by securing a warrant for sale from the court. There are a number of protections incorporated into the legislation, intended to balance the interests of debtors and creditors, particularly where attached land includes a dwellinghouse which is the sole or main residence of the debtor.

No date has been set for commencement of this provision.

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Residual attachment

Part 4, Chapter 3 of The Bankruptcy and Diligence etc. (Scotland) Act 2007 (the 2007 Act) introduces the new diligence of residual attachment which is intended, together with land attachment, to replace the existing diligence of adjudication for debt. Residual attachment has not yet been commenced.

Residual attachment is intended to provide a mechanism for creditors who wish to enforce debt due to them by attaching property belonging to the debtor. This diligence applies to property which is transferable, but not capable of attachment by any other type of diligence. It applies to both heritable and moveable property.

The provisions of the 2007 Act allow the description or class of property attachable by residual attachment to be prescribed by regulations. Attachable property may, for example, include assets such as fishing rights or copyright.

Residual attachment will only be available once the creditor has been granted a residual attachment order by the court. In applying for a residual attachment order, the creditor will be required to show that the debtor has been issued with a Charge for Payment in respect of the debt and that, where the debtor is an individual, the debtor has been provided with a Debt Advice and Information Package no earlier than 12 weeks before the application for the order.

This section of the website is intended to give a broad overview.

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Heritable property

An action of removing from heritable property is an action in which authority is granted to remove or 'eject' a defender from the pursuer's property. 'Removing' has a general meaning which covers any surrender of heritable property. The term also applies more specifically to an action where a heritable proprietor (the person who has the right to the property, often the owner) recovers possession of their property, for example, where a landlord recovers possession of their property from a tenant.
 
'Ejection' is the term used where an owner of heritable property wishes to recover possession from someone who has no legal right or title to occupy the property, for example, where there are squatters in residence.
 
This area of the law covers various types of removal and there are different rules and terms used depending on the legal grounds on which an action for removing is based.
 
Part 15 of the Bankruptcy and Diligence etc. (Scotland) Act 2007, sets out rules to be applied consistently to all types of removing. These actions will be known as 'actions for removing' regardless of the legislative basis under which a decree for removing is granted. Provisions introduced by Part 15 will, for example, apply to the removal of public sector tenants, private tenancies, removal for debt enforcement and the removal of squatters. A change to Sheriff Court Rules will also come into force on 4 April 2011, the effect being that a defender may lodge a minute to recall a decree of removing from heritable property at any time before the removal takes place.
 
The legal grounds and court processes for removing someone from property will not be altered by the commencement of Part 15, however the process of removing someone after a decree for removing has been granted, will change.
 
Part 15 includes the following areas:
  • Clarification of to which types of action the new rules apply
  • Allowing the procedure and practice in executing a decree for removing to be prescribed by Act of Sederunt (expected to come into force at the end of 2011)
  • Charge for removing to be served upon the defender before the removal can take place. This charge will give the Defender a period of (usually) 14 days’ notice before the removing can take place, unless in special circumstances the sheriff dispenses with or varies the 14 day period
  • Circumstances when removing is not competent
  • Preservation of property left in premises
  • Abolition of the law on finding caution (i.e. lodging of funds with the court) for violent profits, although the court may order the defender to find caution for other types of damages for which the defender may be responsible.
     

 

What is Accountant in Bankruptcy's role in diligence?

Accountant in Bankruptcy has responsibility for policy relating to diligence in Scotland. This includes the commencement of several parts of The Bankruptcy and Diligence etc (Scotland) Act 2007, which modernised much of the law relating to diligence and introduced changes to other processes including bankruptcy, trust deeds and the Debt Arrangement Scheme.

Further responsibilities

Accountant in Bankruptcy has responsibility for commencement of Part 16 of the 2007 Act. This part, while not strictly dealing with diligence, is related to the enforcement of debt.

Part 16 introduces orders for the disclosure of information (information disclosure orders). No information is included in this website on information disclosure orders as there is currently no planned date for their introduction.

Information on the commencement of all the Parts of the Bankruptcy and Diligence etc. (Scotland) Act 2007 for which Accountant in Bankruptcy has responsibility, can be found in the table of commencement, along with information on the statutory instruments that support the legislation.

This section of the website is intended to give a broad overview of diligence. It is not a full statement of the law nor does it provide a full description of each of the processes.

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Diligence Statistics

AiB also publishes, on a yearly basis, Scottish Diligence Statistics reports.