Conveyancing and Feudal Reform (Scotland) Act 1970

• (b) to take, as soon as practicable, all reasonable or necessary steps to comply with such a notice or order or, as the case may be, duly to object thereto;

• (c) in the event of the creditor so requiring, to object or to join with the creditor in objecting to any such notice or order or in making representations against any proposal therefor.

Insurance.

5

It shall be an obligation on the debtor—

• (a) to insure the security subjects or, at the option of the creditor, to permit the creditor to insure the security subjects in the names of the creditor and the debtor to the extent of the market value thereof against the risk of fire and such other risks as the creditor may reasonably require;

• (b) to deposit any policy of insurance effected by the debtor for the aforesaid purpose with the creditor;

• (c) to pay any premium due in respect of any such policy, and, where the creditor so requests, to exhibit a receipt therefor not later than the fourteenth day after the renewal date of the policy;

• (d) to intimate to the creditor, within fourteen days of the occurrence, any occurrence which may give rise to a claim under the policy, and to authorise the creditor to negotiate the settlement of the claim;

• (e) without prejudice to any obligation to the contrary enforceable against him, to comply with any reasonable requirement of the creditor as to the application of any sum received in respect of such a claim;

• (f) to refrain from any act or omission which would invalidate the policy.

Restriction on letting.

6

It shall be an obligation on the debtor not to let, or agree to let, the security subjects, or any part thereof, without the prior consent in writing of the creditor, and “to let” in this condition includes to sub-let.

General power of creditor to perform obligations etc. on failure of debtor and power to charge debtor.

7

• (1) The creditor shall be entitled to perform any obligation imposed by the standard conditions on the debtor, which the debtor has failed to perform.

• (2) Where it is necessary for the performance of any obligation as aforesaid, the creditor may, after giving seven clear days notice in writing to the debtor, enter upon the security subjects at all reasonable times.

• (3) All expenses and charges (including any interest thereon), reasonably incurred by the creditor in the exercise of a right conferred by this condition, shall be recoverable from the debtor and shall be deemed to be secured by the security subjects under the standard security, and the rate of any such interest shall be the rate in force at the relevant time in respect of advances secured by the security, or, where no such rate is prescribed, shall be the bank rate in force at the relevant time.

Calling-up.

8

The creditor shall be entitled, subject to the terms of the security and to any requirement of law, to call-up a standard security in the manner prescribed by section 19 of this Act.

Default.

9

• (1) The debtor shall be held to be in default in any of the following circumstances, that is to say—

• (a) where a calling-up notice in respect of the security has been served and has not been complied with;

• (b) where there has been a failure to comply with any other requirement arising out of the security;

• (c) where the proprietor of the security subjects has become insolvent.

• (2) For the purposes of this condition, the proprietor shall be taken to be insolvent if—

• (a) he has become notour bankrupt, or he has executed a trust deed for behoof of, or has made a composition contract or arrangement with, his creditors;

• (b) he has died and a judicial factor has been appointed under section 11A of the Judicial Factors (Scotland) Act 1889 to divide his insolvent estate among his creditors, or his estate falls to be administered in accordance with an order under section 421 of the Insolvency Act 1986;

• (c) where the proprietor is a company, a winding-up order has been made with respect to it, or a resolution for voluntary winding-up (other than a members’ voluntary winding-up) has been passed with respect to it, or a receiver or manager of its undertaking has been duly appointed, or possession has been taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge.

Rights of creditor on default.

10

• (1) Where the debtor is in default, the creditor may, without prejudice to his exercising any other remedy arising from the contract to which the standard security relates, exercise, in accordance with the provisions of Part II of this Act and of any other enactment applying to standard securities, such of the remedies specified in the following sub-paragraphs of this standard condition as he may consider appropriate.

• (2) He may proceed to sell the security subjects or any part thereof.

• (3) He may enter into possession of the security subjects and may receive or recover . . . the rents of those subjects or any part thereof.

• (4) Where he has entered into possession as aforesaid, he may let the security subjects or any part thereof.

• (5) Where he has entered into possession as aforesaid there shall be transferred to him all the rights of the debtor in relation to the granting of leases or rights of occupancy over the security subjects and to the management and maintenance of those subjects.

• (6) He may effect all such repairs and may make good such defects as are necessary to maintain the security subjects in good and sufficient repair, and may effect such reconstruction, alteration and improvement on the subjects as would be expected of a prudent proprietor to maintain the market value of the subjects, and for the aforesaid purposes may enter on the subjects at all reasonable times.

• (7) He may apply to the court for a decree of foreclosure.

Exercise of right of redemption.

11

• (1) The debtor shall be entitled to exercise his right (if any) to redeem the security on giving notice of his intention so to do, being a notice in writing (hereinafter referred to as a “notice of redemption”).

• (2) Nothing in the provisions of this Act shall preclude a creditor from waiving the necessity for a notice of redemption, or from agreeing to a period of notice of less than that to which he is entitled.

• (3)

• (a) A notice of redemption may be delivered to the creditor or sent by registered post or recorded delivery to him at his last known address, and an acknowledgment signed by the creditor or his agent or a certificate of postage by the person giving the notice accompanied by the postal receipt shall be sufficient evidence of such notice having been given.

• (b) If the address of the creditor is not known, or if the packet containing the notice of redemption is returned to the sender with intimation that it could not be delivered, a notice of redemption may be sent to the Extractor of the Court of Session and an acknowledgment of receipt by him shall be sufficient evidence of such notice having been given.

• (c) A notice of redemption sent by post shall be held to have been given on the day next after the day of posting.

• (4) When a notice of redemption states that a specified amount will be repaid, and it is subsequently ascertained that the whole amount due to be repaid is more or less than the amount specified in the notice, the notice shall nevertheless be effective as a notice of repayment of the amount due as subsequently ascertained.

• (5) Where the debtor has exercised a right to redeem, and has made payment of the whole amount due, or has performed the whole obligations of the debtor under the contract to which the security relates, the creditor shall grant a discharge in the terms prescribed in section 17 of this Act.

12

The debtor shall be personally liable to the creditor for the whole expenses of the preparation and execution of the standard security and any variation, restriction and discharge thereof and, where any of those deeds are registered or recorded, the registration or recording thereof, and all expenses reasonably incurred by the creditor in calling-up the security and realising or attempting to realise the security subjects, or any part thereof, and exercising any other powers conferred upon him by the security.

Interpretation

In this Schedule, where the debtor is not the proprietor of the security subjects, " debtor " means " proprietor ", except

SCHEDULE 4

SCHEDULE 5

SCHEDULE 6

SCHEDULE 7

1

A certificate which is lodged in court by the creditor for the purposes of section 22 or 24 of this Act shall contain the information required by the following provisions of this Schedule.

2

A certificate shall state—

• (i) the name and address of the creditor and shall specify the standard security in respect of which the default is alleged to have occurred by reference to the original creditor and debtor therein and to the particulars of its registration;

• (ii) the nature of the default with full details thereof.

3

The certificate shall be signed by the creditor or his solicitor, and a certificate which does not comply w1th the foregoing requirements of this Schedule shall not be received in evidence for the purposes ofthe said section 22 or 24.

SCHEDULE 8

The Debts Securities (Scotland) Act 1856

1

Section 7 (Securities for cash accounts or credits).

Registration of Long Leases (Scotland) Act 1857

2

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

3

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

4

Section 6 (Translation of assignations in security and creditor’s entry on possession in default of payment), so far as relating to such a translation.

5

Section 13 (Renunciations and discharges to be recorded) so far as affecting discharges.

6

Section 20 (Interpretation of clauses in Schedules).

The Titles to Land Consolidation (Scotland) Act 1868

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

Section 138 (Use of short clauses of consent to registration).

Conveyancing (Scotland) Act 1874

16

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

17

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

The Heritable Securities (Scotland) Act 1894

18

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

19

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

20

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

21

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

22

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

23

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

24

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

The Conveyancing (Scotland) Act 1924

25

Section 24 (Assimilation of forms for registered leases).

26

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

27

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

28

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

29

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

30

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

31

Section 42 (Mode of disburdening land sold by creditor under power of sale).

SCHEDULE 9

SCHEDULE 10

Part I — Amendments Affecting Specification of Title

The Registration of Leases (Scotland) Act 1857

1

In Schedule (H), in the footnote, for the words “here state his title and date of recording the same” there shall be substituted the words “ name and design original creditor ”.

The Conveyancing (Scotland) Act 1924

2

In Schedule J, in Note 2, for the words from “insert” to the end there shall be substituted the words “ no specification of the granter’s title is required. ”.

3

In Schedule K, in Note 2, for the words from “insert” to “say” (where the word first occurs) there shall be substituted the words “ no specification of the granter’s title is required; or if such granter has not a recorded title, insert at the end of the deedWhich bond and disposition in security (adding, if necessary,to the extent aforesaid or as the case may be) ”.

Part II — Other Amendments

The Conveyancing (Scotland) Act 1924

4

In Schedule I, in the note, before the words “the prior pages thereof” there shall be inserted the words “ (in the case of a will or other testamentary writing) ”.

The Land Compensation (Scotland) Act 1963

5

In section 10, for the words “Lord President of the Court of Session” there shall be substituted the words “ Secretary of State ”.

SCHEDULE 11

Part I — Repeals affecting specification of title

Part II — Repeals relating to assignations of unrecorded conveyances etc.

Part III — Other repeals

Variation and discharge of land obligations.

Provisions for contracting out of sections 1 to 6 to be void

Notice to occupier of calling-up

19A

• (1) Where a creditor in a standard security over land or a real right in land used to any extent for residential purposes serves a calling-up notice, he shall serve a notice in conformity with Form BB (notice to occupier) of Schedule 6 to this Act together with a copy of the calling-up notice.

• (2) Notices under subsection (1) above shall be sent by recorded delivery letter addressed to “The Occupier” at the security subjects.

• (3) If a creditor fails to comply with subsections (1) and (2) above, the calling-up notice shall be of no effect.

19B

• (1) Where a creditor in a standard security over an interest in land used to any extent for residential purposes serves a calling-up notice, the creditor shall give notice of that fact to the local authority in whose area the security subjects are situated, unless the creditor is that local authority.

• (2) Notice under subsection (1) shall be given in the form and manner prescribed under section 11(3) of the Homelessness etc. (Scotland) Act 2003 (asp 10).

23A

• (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.

• (2) Those persons are—

• (a) the debtor;

• (b) the proprietor of the security subjects (where the proprietor is not the debtor);

• (c) the non-entitled spouse of the debtor or the proprietor of security subjects which are (in whole or in part) a matrimonial home;

• (d) the non-entitled civil partner of the debtor or the proprietor of security subjects which are (in whole or in part) a family home; and

• (e) a person who has occupancy rights in the security subjects by virtue of an order under section 18(1) (occupancy rights of cohabiting couples) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981.

• (3) In this section—

• “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.

Notice of default.

24A

• (1) The pre-action requirements referred to in section 24(1C) of this Act are set out in subsections (2) to (6) below.

• (2) The creditor must provide the debtor with clear information about—

• (a) the terms of the standard security;

• (b) the amount due to the creditor under the standard security, including any arrears and any charges in respect of late payment or redemption; and

• (c) any other obligation under the standard security in respect of which the debtor is in default.

• (3) The creditor must make reasonable efforts to agree with the debtor proposals in respect of future payments to the creditor under the standard security and the fulfilment of any other obligation under the standard security in respect of which the debtor is in default.

• (4) The creditor must not make an application under section 24(1B) of this Act if the debtor is taking steps which are likely to result in—

• (a) the payment to the creditor within a reasonable time of any arrears, or the whole amount, due to the creditor under the standard security; and

• (b) fulfilment by the debtor within a reasonable time of any other obligation under the standard security in respect of which the debtor is in default.

• (5) The creditor must provide the debtor with information about sources of advice and assistance in relation to management of debt.

• (6) The creditor must encourage the debtor to contact the local authority in whose area the security subjects are situated.

• (7) In complying with the pre-action requirements the creditor must have regard to any guidance issued by the Scottish Ministers.

• (8) The Scottish Ministers may by order made by statutory instrument make further provision about the pre-action requirements, including provision—

• (a) specifying particular steps to be taken, or not to be taken, by a creditor in complying with any requirement;

• (b) modifying or removing any requirement;

• (c) making different provision for different circumstances.

• (9) A statutory instrument containing an order under subsection (8) above is not to be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

24B

• (1) An entitled resident may, in proceedings on an application under section 24(1B) of this Act, apply to the court to continue the proceedings or make any other order that the court thinks fit, despite not being called as a defender in the application.

• (2) In determining an application under subsection (1) above the court is to have regard in particular to the matters set out in subsection (7) of section 24, reading the first reference to the debtor in paragraph (b) as including a reference to the entitled resident.

• (3) Subsection (2) above does not affect—

• (a) any power that the court may have; or

• (b) any rights that an entitled resident may have,

under any other enactment or rule of law.

24C

• (1) For the purposes of sections 24B, 24D and 24E, an entitled resident is a person whose sole or main residence is the security subjects (in whole or in part) and who is—

• (a) the proprietor of the security subjects (where the proprietor is not the debtor in the standard security);

• (b) the non-entitled spouse of the debtor or the proprietor of security subjects which are (in whole or in part) a matrimonial home;

• (c) the non-entitled civil partner of the debtor or the proprietor of security subjects which are (in whole or in part) a family home;

• (d) a person living together with the debtor or the proprietor as husband and wife;

• (e) a person living together with the debtor or the proprietor in a relationship which has the characteristics of the relationship between civil partners;

• (f) a person who lived together with the debtor or the proprietor in a relationship described in paragraph (d) or (e) if—

• (i) the security subjects (in whole or in part) are not the sole or main residence of the debtor or the proprietor;

• (ii) the person lived together with the debtor or the proprietor throughout the period of 6 months ending with the date on which the security subjects ceased to be the sole or main residence of the debtor or the proprietor; and

• (iii) the security subjects (in whole or in part) are the sole or main residence of a child aged under 16 who is a child of both parties in that relationship.

• (2) In this section—

• “child” includes a stepchild and any person brought up, or treated, by both parties to the relationship as their child;

• “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.

Rights and duties of parties after service of notice of default to which objection is not taken, or where the notice is not set aside.

24D

• (1) A person mentioned in subsection (2) below may apply to the court for recall of a decree granted on an application under section 24(1B) of this Act.

• (2) Those persons are—

• (a) the creditor;

• (b) the debtor, but only if the debtor did not appear and was not represented in the proceedings on the application under section 24(1B);

• (c) an entitled resident, but only if the entitled resident did not make an application under section 24B(1) in the proceedings.

• (3) An application under subsection (1) may be made at any time before the decree has been fully implemented.

• (4) An application by any person under subsection (1) above is not competent if an application under that subsection has already been made by that person in relation to the application under section 24(1B).

• (5) An applicant under subsection (1) above must give notice of the application to—

• (a) the creditor (unless the applicant is the creditor);

• (b) the debtor (unless the applicant is the debtor);

• (c) every entitled resident (or, if the applicant is an entitled resident, every other entitled resident).

24E

• (1) In proceedings under sections 24(1B) and 24D(1) of this Act, the debtor and any entitled resident may be represented by an approved lay representative except in prescribed circumstances.

• (2) An approved lay representative must throughout the proceedings satisfy the sheriff that the representative is a suitable person to represent the debtor or entitled resident and is authorised by the debtor or entitled resident to do so.

• (3) References in this section to an approved lay representative are to an individual (other than an advocate or solicitor) approved for the purposes of this section by a person or body prescribed, or of a description prescribed, by the Scottish Ministers by order made by statutory instrument.

• (4) An order under subsection (3) above may—

• (a) prescribe persons or bodies, or descriptions of persons or bodies, for the purposes of that subsection;

• (b) make provision about the procedure for, and form and manner of—

• (i) approval,

• (ii) withdrawal of approval,

of an individual for the purposes of this section;

• (c) make provision requiring a prescribed person or body, or a person or body of a prescribed description, to provide information to the Scottish Ministers about approvals and withdrawals of approval;

• (d) prescribe circumstances in which an approved lay representative may not represent a debtor or entitled resident.

• (5) Before making an order under subsection (3) above the Scottish Ministers must consult the Lord President of the Court of Session.

• (6) A statutory instrument containing an order under subsection (3) above is subject to annulment in pursuance of a resolution of the Scottish Parliament.

Form A

I, A.B. (designation), hereby undertake to pay to C.D. (designation), the sum of £ (or a maximum sum of £ ) (or all sums due and that may become due by me to the said C.D. in respect of ......... (here specify the matter for which the undertaking is granted)) with interest from ........................ (orfrom the respective times of advance) at ............ per centum per annum (or otherwise as the case may be) (annually, half-yearly,or otherwise as the case may be) on ..................... in each year commencing on .....................; For which I grant a standard security in favour of the said C.D. over All and Whole (here describe the security subjects as indicated inNote 1 hereto): The standard conditions specified in Schedule 3 to the Conveyancing and Feudal Reform (Scotland) Act 1970, and any lawful variation thereof operative for the time being, shall apply: And I grant warrandice: And I consent to registration for execution.

Form B

NOTES TO SCHEDULE 2

In this Schedule, where the debtor is not the proprietor of the security subjects, “debtor” means “proprietor”, except

FORM A — Assignation of Standard Security

Separate

FORM B

FORM C — Restriction of Standard Security

I, A.B. (designation), in consideration of (specify consideration, if any) hereby disburden of a standard security for £ (ora maximum sum of £ ;in other cases, describe as indicated in Note 2 to this Schedule) by C.D. in my favour (orin favour of E.F.) recorded in the Register for .................. on .................. (adding if necessary, but only to the extent of £ of principal)ALL andWHOLE (describe the subjects disburdened in the same way as directed in Note 1 to Schedule 2 to this Act in the case of a description of security subjects).

FORM D — Combined Partial Discharge and Deed of Restriction of Standard Security

FORM E — Variation of Standard Security

FORM F — Discharge of Standard Security

Separate

NOTES TO SCHEDULE 4

General

I, A.B. (designation), in consideration of (specify consideration, if any) hereby disburden of a standard security for £ (or a maximum sum of £;in other cases, describe as indicated in Note 2 to this Schedule) by C.D. in my favour (or in favour of E.F.) recorded in the Register for .................. on .................. (adding if necessary, but only to the extent of £ of principal) ALL and WHOLE (describe the subjects disburdened in the same way as directed in Note 1 to Schedule 2 to this Act in the case of a description of security subjects).

FORM A — NOTICE OF REDEMPTION OF STANDARD SECURITY

FORM B

FORM C

FORM D

No. 1 — Certificate of Consignation on Redemption of Standard Security where Discharge cannot be Obtained

No. 2 — Certificate of Declarator of Performance of Debtor’s Obligations under Standard Security where Discharge cannot be obtained

FORM A — Notice of Calling-up of Standard Security

FORM B — Notice of Default under Standard Security

FORM BB — NOTICE TO OCCUPIER

Testing clause+

FORM C

FORM D

FORM E

[To be used where the personal obligation is constituted in a separate instrument or instruments]

FORM F

Testing clause+

NOTES TO SCHEDULE 9

Editorial notes