At present in Scotland there is no legal requirement to serve a charge prior to eviction where the creditor has already obtained a decree or warrant for the ejection of the defender or an occupant which the defender has allowed to occupy the heritable property. This includes where we obtain our decrees or warrants for ejection against defenders under the Conveyancing and Feudal Reform (Scotland) Act, 1970 as well as against tenants under the Housing Scotland Act, 1988.
The Bankruptcy and Diligence etc (Scotland) Act, 2007 (Commencement No. 8 and Transitional) Order 2011 states as follows that no requirement to serve a charge before removing as a consequence of any provision commenced by this Order applies to a decree for removing from heritable property (within the meaning of section 214(1) of the Act) obtained, granted or made, as the case may be, before 4 April 2011.
However, on 4 April 2011, Part 15 (i.e. sections 214-219) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 come into force. Section 216 deals with service of charge before removing. Section 216 states that a defender or occupant of the subjects who has permission to occupy from the defender can only be removed by virtue of the decree if the defender or occupant has been served with a charge to remove from those subjects or premises within 14 days after the giving of the charge; and the period of charge has expired without the defender or occupant so removing.
Section 216(4) extends discretion to the Court saying "Where the decree for removing from heritable property is granted by a court, the court may, on cause shown, dispense with or vary the period of the charge"
To summarize, this means that at present there is no requirement to serve a charge after decree has been obtained but prior to eviction. However after 4 April 2011 we must serve a charge, with at least 14 days notice and this must expire, before we proceed with eviction to remove either the defender, occupant or any of their effects.
The legislation also states in section 216(3) that the judicial officer removing the defender/occupant etc must make an inventory of any effects which are removed. The judicial officer will be the sheriff officer carrying out the eviction so whilst contractors can take a note, the legislation requires the sheriff officers to make a formal inventory themselves. This may cover circumstances were there are pets/animals in the property.
There is therefore no practical issue with this new legislation, just an added requirement imposed on lenders seeking recovery of heritable property which gives rise to some additional costs.
Khalda Wali, Solicitor
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