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Conveyancing and Feudal Reform (Scotland) Act 1970

Current text a fecha 2010-10-03

PART I — Feudal Reform

Variation and discharge of land obligations

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Provisions supplementary to section 1

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Allocation of feuduties, etc.

Allocation of feuduties

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Applications to Lands Tribunal regarding allocation of feuduties

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Provisions supplementary to sections 3 and 4

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Allocation of ground annuals

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

Provisions for contracting out of sections 1 to 6 void

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Reduction of period of positive prescription

Reduction of period of possession necessary for prescription following on title and possession from 20 years to 10 years

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Part II — The Standard Security

The standard security

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(1) The provisions of this Part of this Act shall have effect for the purpose of enabling a new form of heritable security to be created to be known as a standard security.

(2) It shall be competent to grant and record in the Register of Sasines a standard security over any land or real right in land, to be expressed in conformity with one of the forms prescribed in Schedule 2 to this Act.

(2B) It shall not be competent to grant a standard security over a personal pre-emption burden or personal redemption burden (both within the meaning of Part 4 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 (asp 5).

(3) A grant of any right over land or a real right in land for the purpose of securing any debt by way of a heritable security shall only be capable of being effected at law if it is embodied in a standard security.

(4) Where for the purpose last-mentioned any deed which is not in the form of a standard security contains a disposition or assignation of land or of a real right in land, it shall to that extent be void and unenforceable, and where that deed has been duly recorded the creditor in the purported security may be required, by any person having an interest, to grant any deed which may be appropriate to clear the Register of Sasines of that security.

(5) A standard security may be used for any other purpose for which a heritable security may be used if any of the said forms is appropriate to that purpose, and for the purpose of any enactment affecting heritable securities a standard security, if so used, or if used as is required by this Act instead of a heritable security as defined therein, shall be a heritable security for the purposes of that enactment.

(6) The Bankruptcy Act 1696, in so far as it renders a heritable security of no effect in relation to a debt contracted after the recording of that security, and any rule of law which requires that a real burden for money may only be created in respect of a sum specified in the deed of creation, shall not apply in relation to a standard security.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) For the purposes of this Part of this Act—

(a) “heritable security (except in subsection (5) of this section if the context otherwise requires) means any security capable of being constituted over any land or real right in land by disposition or assignation of that land or real right in security of any debt and of being recorded in the Register of Sasines;

“real right in land” has the same meaning as it has for the purposes of sections 1 and 2 of this Act;

“real right in land” means any such right, other than ownership or a real burden, which is capable of being held separately and to which a title may be recorded in the Register of Sasines;

(c) “debt” means any obligation due, or which will or may become due, to repay or pay money, including any such obligation arising from a transaction or part of a transaction in the course of any trade, business or profession, and any obligation to pay an annuity orad factum praestandum, but does not include an obligation to pay any feuduty, ground annual, rent or other periodical sum payable in respect of land, and “creditor” and “debtor”, in relation to a standard security, shall be construed accordingly.

Import of forms of, and certain clauses in, standard security

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(1) The import of the clause relating to the personal obligation contained in Form A of Schedule 2 to this Act expressed in any standard security shall, unless specially qualified, be as follows—

(a) where the security is for a fixed amount advanced or payable at, or prior to, the delivery of the deed, the clause undertaking to make payment to the creditor shall import an acknowledgment of receipt by the debtor of the principal sum advanced or an acknowledgment by the debtor of liability to pay that sum and a personal obligation undertaken by the debtor to repay or pay to the creditor on demand in writing at any time after the date of delivery of the standard security the said sum, with interest at the rate stated payable on the dates specified, together with all expenses for which the debtor is liable by virtue of the deed or of this Part of this Act;

(b) where the security is for a fluctuating amount, whether subject to a maximum amount or not and whether advanced or due partly before and partly after delivery of the deed or whether to be advanced or to become due wholly after such delivery, the clause undertaking to make payment to the creditor shall import a personal obligation by the debtor to repay or pay to the creditor on demand in writing the amount, not being greater than the maximum amount, if any, specified in the deed, advanced or due and outstanding at the time of demand, with interest on each advance from the date when it was made until repayment thereof, or on each sum payable from the date on which it became due until payment thereof, and at the rate stated payable on the dates specified, together with all expenses for which the debtor is liable by virtue of the deed or of this Part of this Act.

(2) The clause of warrandice in the forms of standard security contained in Schedule 2 to this Act expressed in any standard security shall, unless specially qualified, import absolute warrandice as regards the land or real right in land over which the security is granted and the title deeds thereof, and warrandice from fact and deed as regards the rents thereof.

(3) The clause relating to consent to registration for execution contained in Form A of Schedule 2 to this Act expressed in any standard security shall, unless specially qualified, import a consent to registration in the Books of Council and Session, or, as the case may be, in the books of the appropriate sheriff court, for execution.

(4) The forms of standard security contained in Schedule 2 to this Act shall, unless specially qualified, import an assignation to the creditor of the title deeds, including searches, and all conveyances not duly recorded, affecting the security subjects or any part thereof, with power to the creditor in the event of a sale under the powers conferred by the security, but subject to the rights of any person holding prior rights to possession of those title deeds, to deliver them, so far as in the creditor’s possession, to the purchaser, and to assign to the purchaser any right he may possess to have the title deeds made forthcoming.

Effect of recorded standard security, and incorporation of standard conditions

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(1) Where a standard security is duly recorded, it shall operate to vest in the grantee a real right in security for the performance of the contract to which the security relates.

(2) Subject to the provisions of this Part of this Act, the conditions set out in Schedule 3 to this Act, either as so set out or with such variations as have been agreed by the parties in the exercise of the powers conferred by the said Part (which conditions are hereinafter in this Act referred to as “the standard conditions”), shall regulate every standard security.

(3) Subject to the provisions of this Part of this Act, the creditor and debtor in a standard security may vary any of the standard conditions, other than standard condition 11 (procedure on redemption) and the provisions of Schedule 3 to this Act relating to the powers of sale, . . . and foreclosure and to the exercise of those powers, but no condition capable of being varied shall be varied in a manner inconsistent with any condition which may not be varied by virtue of this subsection.

(4) In this Part of this Act—

(a) any reference to a variation of the standard conditions shall include a reference to the inclusion of an additional condition and to the exclusion of a standard condition;

(b) any purported variation of a standard condition which contravenes the provisions of subsection (3) of this section shall be void and unenforceable.

Standard security may be granted by person uninfeft

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(1) Notwithstanding any rule of law, a standard security may be granted over land or a real right in land by a person . . . whose title thereto has not been completed by being duly recorded, if in the deed expressing that security the grantor deduces his title to that land or real right from the person who appears in the Register of Sasines as having the last recorded title thereto.

(2) A deduction of title in a deed for the purposes of the foregoing subsection shall be expressed in the form prescribed by Note 2 or 3 of Schedule 2 to this Act, and on such a deed being recorded as aforesaid the title of the grantee shall, for the purposes of the rights and obligations between the grantor and the grantee thereof and those deriving right from them, but for no other purpose, in all respects be of the same effect as if the title of the grantor of the deed to the land or real right in land to which he has deduced title therein had been duly completed; and any references to a proprietor or to a person having the last recorded title shall in this Part of this Act be construed accordingly.

(3) There may be specified for the purposes of any deduction of title in pursuance of any provision of this Part of this Act any writing which it is competent to specify as a title, midcouple, or link in title for the purposes of section 5 of the Conveyancing (Scotland) Act 1924 (deduction of title).

Ranking of standard securities

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(1) Where the creditor in a standard security duly recorded has received notice of the creation of a subsequent security over the same land or real right in land or over any part thereof, or of the subsequent assignation or conveyance of that land or real right, in whole or in part, being a security, assignation or conveyance so recorded, the preference in ranking of the security of that creditor shall be restricted to security for

(a) the present debt incurred (whenever payable); and

(b) any future debt which, under the contract to which the security relates, he is required to allow the debtor in the security to incur,

and interest present or future due thereon (including any such interest which has accrued or may accrue) and for any expenses or outlays (including interest thereon) which may be, or may have been, reasonably incurred in the exercise of any power conferred on any creditor by the deed expressing the existing security.

(2) For the purposes of the foregoing subsection—

(a) a creditor in an existing standard security duly recorded shall not be held to have had any notice referred to in that subsection, by reason only of the subsequent recording of the relevant deed in the Register of Sasines;

(b) any assignation, conveyance or vesting in favour of or in any other person of the interest of the debtor in the security subjects or in any part thereof resulting from any judicial decree, or otherwise by operation of law, shall constitute sufficient notice thereof to the creditor.

(3) Nothing in the foregoing provisions of this section shall affect—

(a) any preference in ranking enjoyed by the Crown; and

(b) any powers of the creditor and debtor in any heritable security to regulate the preference to be enjoyed by creditors in such manner as they may think fit.

Assignation of standard security

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(1) Any standard security duly recorded may be transferred, in whole or in part, by the creditor by an assignation in conformity with Form A or B of Schedule 4 to this Act, and upon such an assignation being duly recorded, the security, or, as the case may be, part thereof, shall be vested in the assignee as effectually as if the security or the part had been granted in his favour.

(2) An assignation of a standard security shall, except so far as otherwise therein stated, be deemed to convey to the grantee all rights competent to the grantor to the writs, and shall have the effect inter alia of vesting in the assignee—

(a) the full benefit of all corroborative or substitutional obligations for the debt, or any part thereof, whether those obligations are contained in any deed or arise by operation of law or otherwise,

(b) the right to recover payment from the debtor of all expenses properly incurred by the creditor in connection with the security, and

(c) the entitlement to the benefit of any notices served and of all procedure instituted by the creditor in respect of the security to the effect that the grantee may proceed as if he had originally served or instituted such notices or procedure.

Restriction of standard security

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(1) The security constituted by any standard security duly recorded may be restricted, as regards any part of the land or real right in land burdened by the security, by a deed of restriction in conformity with Form C of Schedule 4 to this Act, and, upon that deed being duly recorded, the security shall be restricted to the land or real right contained in the standard security other than the part of that land or real right disburdened by the deed; and the land or real right thereby disburdened shall be released from the security wholly or to the extent specified in the deed.

(2) A partial discharge and deed of restriction of a standard security, which has been duly recorded, may be combined in one deed, which shall be in conformity with Form D of the said Schedule 4.

Variation of standard security

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(1) Any alteration in the provisions (including any standard condition) of a standard security duly recorded, other than an alteration which may appropriately be effected by an assignation, discharge or restriction of that standard security, or an alteration which involves an addition to, or an extension of, the land or real right in land mentioned therein, may be effected by a variation endorsed on the standard security in conformity with Form E of Schedule 4 to this Act, or by a variation contained in a separate deed in a form appropriate for that purpose, duly recorded in either case.

(2) Where a standard security has been duly recorded, but the personal obligation or any other provision (including any standard condition) relating to the security has been created or specified in a deed which has not been so recorded, nothing contained in this section shall prevent any alteration in that personal obligation or provision, other than an alteration which may be appropriately effected by an assignation, discharge or restriction of the standard security, or an alteration which involves an addition to, or an extension of, the land or real right in land mentioned therein, by a variation contained in any form of deed appropriate for that purpose, and such a variation shall not require to be recorded in the Register of Sasines.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Any variation effected in accordance with this section shall not prejudice any other security or right over the same land or real right in land, or over any part thereof, effectively constituted before the variation is recorded, or, where the variation is effected by an unrecorded deed, before that deed is executed, as the case may be.

Discharge of standard security

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A standard security duly recorded may be discharged, and the land or real right in land burdened by that security may be disburdened thereof, in whole or in part, by a discharge in conformity with Form F of Schedule 4 to this Act, duly recorded.

Redemption of standard security

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(1) Subject to the provisions of subsection (1A) of this section, The debtor in a standard security or, where the debtor is not the proprietor, the proprietor of the security subjects shall be entitled to redeem the security on giving two months’ notice of his intention so to do, and in conformity with the terms of standard condition 11 and the appropriate Forms of Schedule 5 to this Act.

(1A) Without prejudice to section 11 of the Land Tenure Reform (Scotland) Act 1974the provisions of the foregoing subsection shall be subject to any agreement to the contrary, but any right to redeem the security shall be exercisable in conformity with the terms and Forms referred to in that subsection.

(2) Where owing to the death or absence of the creditor, or to any other cause, the debtor in a standard security or, as the case may be, the proprietor of the security subjects (being in either case a person entitled to redeem the security) is unable to obtain a discharge under the foregoing provisions of this section may—

(a) where the security was granted in respect of any obligation to repay or pay money, consign in any bank in Scotland, incorporated by or under Act of Parliament or by Royal Charter, the whole amount due to the creditor on redemption, other than any unascertained expenses of the creditor, for the person appearing to have the best right thereto, and

(b) in any other case, apply to the court for declarator that the whole obligations under the contract to which the security relates have been performed.

(3) On consignation, or on the court granting declarator as aforesaid, a certificate to that effect may be expede by a solicitor in the appropriate form prescribed by Form D of Schedule 5 to this Act, which on being duly recorded shall disburden the land or real right in land, to which the standard security relates, of that security.

(4) For the purposes of this section, “whole amount due” means the debt to which the security relates, so far as outstanding, and any other sums due thereunder by way of interest or otherwise.

Calling-up of standard security

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(1) Where a creditor in a standard security intends to require discharge of the debt thereby secured and, failing that discharge, to exercise any power conferred by the security to sell any subjects of the security or any other power which he may appropriately exercise on the default of the debtor within the meaning of standard condition 9(1)(a), he shall serve a notice calling-up the security in conformity with Form A of Schedule 6 to this Act (hereinafter in this Act referred to as a “calling-up notice”), in accordance with the following provisions of this section.

(2) Subject to the following provisions of this section, a calling-up notice shall be served on the person having the last recorded title to the security subjects and appearing on the record as the proprietor, and should the proprietor of those subjects, or any part thereof, be dead then on his representative or the person entitled to the subjects in terms of the last recorded title thereto, notwithstanding any alteration of the succession not appearing in the Register of Sasines.

(3) Where the person having the last recorded title to the security subjects was an incorporated company which has been removed from the Register of Companies, or a person deceased who has left no representatives, a calling-up notice shall be served on the Lord Advocate and, where the estates of the person having the last recorded title have been sequestrated under the Bankruptcy (Scotland) Act 1913, the notice shall be served on the trustee in the sequestration (unless such trustee has been discharged) as well as on the bankrupt.

(4) If the proprietor be a body of trustees, it shall be sufficient if the notice is served on a majority of the trustees having title to the security subjects.

(5) It shall be an obligation on the creditor to serve a copy of the calling-up notice on any other person against whom he wishes to preserve any right of recourse in respect of the debt.

(6) For the purposes of the foregoing provisions of this section, the service of a calling-up notice may be made by delivery to the person on whom it is desired to be served or the notice may be sent by registered post or by the recorded delivery service to him at his last known address, or, in the case of the Lord Advocate, at the Crown Office, Edinburgh, and an acknowledgment, signed by the person on whom service has been made, in conformity with Form C of Schedule 6 to this Act, or, as the case may be, a certificate in conformity with Form D of that Schedule, accompanied by the postal receipt shall be sufficient evidence of the service of that notice; and if the address of the person on whom the notice is desired to be served is not known, or if it is not known whether that person is still alive, or if the packet containing a calling-up notice is returned to the creditor with an intimation that it could not be delivered, that notice shall be sent to the Extractor of the Court of Session, and shall be equivalent to the service of a calling-up notice on the person on whom it is desired to be served.

(7) For the purposes of the last foregoing subsection, an acknowledgment of receipt by the said Extractor on a copy of a calling-up notice shall be sufficient evidence of the receipt by him of that notice.

(8) A calling-up notice served by post shall be held to have been served on the next day after the day of posting.

(9) Where a creditor in a standard security has indicated in a calling-up notice that any sum and any interest thereon due under the contract may be subject to adjustment in amount, he shall, if the person on whom notice has been served so requests, furnish the debtor with a statement of the amount as finally determined within a period of one month from the date of service of the calling-up notice, and a failure by the creditor to comply with the provisions of this subsection shall cause the calling-up notice to be of no-effect.

(10) The period of notice mentioned in the calling-up notice may be effectively dispensed with or shortened by the person on whom it is served, with the consent of the creditors, if any, holding securitiespari passuwith, or postponed to, the security held by the creditor serving the calling-up notice, by a minute written or endorsed upon the said notice, or a copy thereof, in conformity with Form C of Schedule 6 to this Act.

(10A) Subsection (10B) below applies where the calling-up notice relates to a standard security over land or a real right in land used to any extent for residential purposes.

(10B) The period of notice mentioned in the calling-up notice may be shortened under subsection (10) above only with the consent in writing (in addition to any other consent required by that subsection) of—

(a) any person entitled to make an application under section 24B(1) of this Act as an entitled resident falling within paragraph (d), (e) or (f) of section 24C(1), and

(b) where the debtor in the standard security is not the proprietor—

(i) the debtor, and

(ii) if the standard security is over a matrimonial home or a family home (within the definitions in section 23A(3)), the debtor's spouse or civil partner.

(11) Subject to subsection (12) below, a calling-up notice shall cease to have effect for the purpose of a sale in the exercise of any power conferred by the security on the expiration of a period of five years, which period shall run—

(a) in the case where the subjects of the security, or any part thereof, have not been offered for or exposed to sale, from the date of the notice,

(b) in the case where there has been such an offer or exposure, from the date of the last offer or exposure.

(12) A calling-up notice calling up a standard security over land or a real right in land used to any extent for residential purposes ceases to have effect on the expiration of a period of 5 years from the date of the notice.

Exercise of rights of creditor on default of debtor in complying with a calling-up notice

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(1) Where the debtor in a standard security is in default within the meaning of standard condition 9(1)(a), the creditor may exercise such of his rights under the security as he may consider appropriate, and any such right shall be in addition to and not in derogation from any other remedy arising from the contract to which the security relates or from any right conferred by any enactment or by any rule of law on the creditor in a heritable security.

(2) Where the debtor is in default as aforesaid, the creditor shall have the right to sell the security subjects, or any part thereof, in accordance with the provisions of this Part of this Act.

(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.

(3) A creditor in a standard security who is in lawful possession of the security subjects may let the security subjects, or any part thereof, for any period not exceeding seven years, or may make application to the court for warrant to let those subjects, or any part thereof, for a period exceeding seven years, and the application shall state the proposed tenant, and the duration and conditions of the proposed lease, and shall be served on the proprietor of the subjects and on any other heritable creditor having interest as such a creditor in the subjects.

(4) The court, on such an application as aforesaid and after such inquiry and such further intimation of the application as it may think fit, may grant the application as submitted, or subject to such variation as it may consider reasonable in all the circumstances of the case, or may refuse the application.

(5) There shall be deemed to be assigned to a creditor who is in lawful possession of the security subjects all rights and obligations of the proprietor relating to—

(a) leases, or any permission or right of occupancy, granted in respect of those subjects or any part thereof, and

(b) the management and maintenance of the subjects and the effecting of any reconstruction, alteration or improvement reasonably required for the purpose of maintaining the market value of the subjects.

Notice of default

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(1) Where the debtor in a standard security is in default within the meaning of standard condition 9(1)(b), and the default is remediable, the creditor may, without prejudice to any other powers he may have by virtue of this Act or otherwise, proceed in accordance with the provisions of this section to call on the debtor and on the proprietor, where he is not the debtor, to purge the default.

(2) For the aforesaid purpose the creditor may serve on the debtor and, as the case may be, on the proprietor a notice in conformity with Form B of Schedule 6 to this Act (hereinafter in this Act referred to as a “notice of default”) which shall be served in the like manner and with the like requirements as to proof of service as a calling-up notice.

(2A) Sections 19A and 19B of this Act apply where the creditor serves a notice of default as they apply where he serves a calling-up notice.

(3) For the purpose of dispensing with, or shortening, the period of notice mentioned in a notice of default, subsections (10) and (10B) of section 19 of this Act shall apply as they apply in relation to a calling-up notice.

(4) Notwithstanding the failure to comply with any requirement contained in the notice, a notice of default shall cease to be authority for the exercise of the rights mentioned in section 23(2) of this Act on the expiration of a period of five years from the date of the notice.

Objections to notice of default

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(1) Where a person on whom a notice of default has been served considers himself aggrieved by any requirement of that notice he may, within a period of fourteen days of the service of the notice, object to the notice by way of application to the court; and the applicant shall, not later than the lodging of that application, serve a copy of his application on the creditor, and on any other party on whom the notice has been served by the creditor.

(2) On any such application the court, after hearing the parties and making such inquiry as it may think fit, may order the notice appealed against to be set aside, in whole or in part, or otherwise to be varied, or to be upheld.

(3) The respondent in any such application may make a counter-application craving for any of the remedies conferred on him by this Act or by any other enactment relating to heritable securities, and the court may grant any such remedy as aforesaid as it may think proper.

(4) For the purposes of such a counter-application as aforesaid, a certificate which conforms with the requirements of Schedule 7 to this Act may be lodged in court by the creditor, and that certificate shall be prima facie evidence of the facts directed by the said Schedule to be contained therein.

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

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(1) Where a person does not object to a notice of default in accordance with the provisions of the last foregoing section, or where he has so objected and the notice has been upheld or varied under that section, it shall be his duty to comply with any requirement, due to be performed or fulfilled by him, contained in the notice or, as the case may be, in the notice as so varied.

(2) Subject to the provisions of section 21(4) of this Act and subsection (4) below, where a person fails to comply as aforesaid, the creditor, subject to the next following subsection, may proceed to exercise such of his rights on default under standard condition 10(2), (6) and (7) as he may consider appropriate.

(3) At any time after the expiry of the period stated in a notice of default, or in a notice varied as aforesaid, but before the conclusion of any enforceable contract to sell the security subjects, or any part thereof, by virtue of the last foregoing subsection, the debtor or proprietor (being in either case a person entitled to redeem the security) may, subject to any agreement to the contrary, redeem the security without the necessity of observance of any requirement as to notice.

(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

(b) subsection (3) above has effect as if the reference to the last foregoing subsection were a reference to section 24 of this Act.

Application by creditor to court for remedies on default

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(1) Without prejudice to his proceeding by way of notice of default in respect of a default within the meaning of standard condition 9(1)(b), a creditor in a standard security, where the debtor is in default within the meaning of that standard condition or standard condition 9(1)(c), may apply to the court for warrant to exercise any of the remedies which he is entitled to exercise on a default within the meaning of standard condition 9(1)(a).

(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).

(2) For the purposes of an application under subsection (1) or (1B) in respect of a default within the meaning of standard condition 9(1)(b), a certificate which conforms with the requirements of Schedule 7 to this Act may be lodged in court by the creditor, and that certificate shall be prima facie evidence of the facts directed by the said Schedule to be contained therein.

(3) Where the creditor applies to the court under subsection (1B) above, he shall, . . . —

(a) serve on the debtor and (where the proprietor is not the debtor) on the proprietor a notice in conformity with Form E of Schedule 6 to this Act, . . .

(b) serve on the occupier of the security subjects a notice in conformity with Form F of that Schedule, and

(c) give notice of the application to the local authority in whose area the security subjects are situated, unless the creditor is that local authority.

(4) Notices under subsection (3)(a) or (b) above shall be sent by recorded delivery letter addressed—

(a) in the case of a notice under subsection (3)(a), to the debtor or, as the case may be, the proprietor at his last known address,

(b) in the case of a notice under subsection (3)(b), to “The Occupier” at the security subjects.

(4A) Notice under subsection (3)(c) above shall be given in the form and manner prescribed under section 11(3) of the Homelessness etc. (Scotland) Act 2003 (asp 10).

(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.

(6) In considering an application under subsection (1B) above where the debtor appears or is represented, the court is to have regard in particular to the matters set out in subsection (7) below.

(7) Those matters are—

(a) the nature of and reasons for the default;

(b) the ability of the debtor to fulfil within a reasonable time the obligations under the standard security in respect of which the debtor is in default;

(d) where appropriate, participation by the debtor in a debt payment programme approved under Part 1 of the Debt Arrangement and Attachment (Scotland) Act 2002; and

(e) the ability of the debtor and any other person residing at the security subjects to secure reasonable alternative accommodation.

(8) Subsections (5) and (6) above do not affect—

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

(b) any rights that the debtor may have,

by virtue of any other enactment or rule of law.

(9) Where—

(a) the default in respect of which an application is made under subsection (1B) above is a default within the meaning of paragraph (a) or (b) of standard condition 9(1); and

(b) before a decree is granted on the application, the obligations under the standard security in respect of which the debtor is in default are fulfilled,

the standard security has effect as if the default had not occurred.

Exercise of power of sale

25

A creditor in a standard security having right to sell the security subjects may , subject to sections 37(5)(e) or 40(1) of the Land Reform (Scotland) Act 2003 (asp 2) (prohibition of transfer of land registered under that Act except in accordance with its provisions), exercise that right either by private bargain or by exposure to sale, and in either event it shall be the duty of the creditor to advertise the sale and to take all reasonable steps to ensure that the price at which all or any of the subjects are sold is the best that can be reasonably obtained.

Disposition by creditor on sale

26

(1) Where a creditor in a standard security has effected a sale of the security subjects, or any part thereof, and grants to the purchaser or his nominee a disposition of the subjects sold thereby, which bears to be in implement of the sale, then, on that disposition being duly recorded, those subjects shall be disburdened of the standard security and of all other heritable securities and diligences rankingpari passuwith, or postponed to that security.

(2) Where on a sale as aforesaid the security subjects remain subject to a prior security, the recording of a disposition under the foregoing subsection shall not affect the rights of the creditor in that security, but the creditor who has effected the sale shall have the like right as the debtor to redeem the security.

Application of proceeds of sale

27

(1) The money which is received by the creditor in a standard security, arising from any sale by him of the security subjects, shall be held by him in trust to be applied by him in accordance with the following order of priority—

(a) first, in payment of all expenses properly incurred by him in connection with the sale, or any attempted sale;

(b) secondly, in payment of the whole amount due under any prior security to which the sale is not made subject;

(c) thirdly, in payment of the whole amount due under the standard security, and in payment, in due proportion, of the whole amount due under a security, if any, rankingpari passu with his own security, which has been duly recorded;

(d) fourthly, in payment of any amounts due under any securities with a ranking postponed to that of his own security, according to their ranking,

and any residue of the money so received shall be paid to the person entitled to the security subjects at the time of sale, or to any person authorised to give receipts for the proceeds of the sale thereof.

(2) Where owing to the death or absence of any other creditor, or to any other cause, a creditor is unable to obtain a receipt or discharge for any payment he is required to make under the provisions of the foregoing subsection, he may, without prejudice to his liability to account therefor, consign the amount due (so far as ascertainable) in the sheriff court for the person appearing to have the best right thereto; and where consignation is so made, the creditor shall lodge in court a statement of the amount consigned.

(3) A consignation made in pursuance of the last foregoing subsection shall operate as a discharge of the payment of the amount due, and a certificate under the hand of the sheriff clerk shall be sufficient evidence thereof.

Foreclosure

28

(1) Where the creditor in a standard security has exposed the security subjects to sale at a price not exceeding the amount due under the security and under any security ranking prior to, or pari passuwith, the security, and has failed to find a purchaser, or where, having so failed, he has succeeded in selling only a part of the subjects at a price which is less than the amount due as aforesaid, he may, on the expiration of a period of two months from the date of the first exposure to sale, apply to the court for a decree of foreclosure.

(2) In any application under the last foregoing subsection the creditor shall lodge a statement setting out the whole amount due under the security but, without prejudice to the right of the debtor or of the proprietor to challenge that statement, it shall be sufficient for the purposes of the application for the creditor to establish to the satisfaction of the court that the amount so stated is not less than the price at which the security subjects have been exposed to sale or sold, where part of the subjects has been sold as aforesaid.

(3) Any application under subsection (1) of this section shall be served on the debtor in the standard security, the proprietor of the security subjects (if he is a person other than the debtor) and the creditor in any other heritable security affecting the security subjects as disclosed by a search of the Register of Sasines for a period of twenty years immediately preceding the last date to which the appropriate Minute Book of the said Register has been completed at the time when the application is made or by an examination of the title sheet of the security subjects in the Land Register of Scotland.

(4) The court may order such intimation and inquiry as it thinks fit and may in its discretion allow the debtor or the proprietor of the security subjects a period not exceeding three months in which to pay the whole amount due under the security and, subject to any such allowance, may—

(a) appoint the security subjects or the unsold part thereof to be re-exposed to sale at a price to be fixed by the court, in which event the creditor in the security may bid and purchase at the sale, or

(b) grant a decree of foreclosure in conformity with the provisions of the next following subsection.

(5) A decree of foreclosure shall contain a declaration that on the extract of the decree being duly recorded, any right to redeem the security has been extinguished and that the creditor has right to the security subjects or the unsold part thereof, described by means of a particular description or by reference to a description thereof as in Schedule D to the Conveyancing (Scotland) Act 1924 or in Schedule G to the Titles to Land Consolidation (Scotland) Act 1868, including a reference to any conditions or clauses affecting the subjects or the unsold part thereof or in accordance with section 15 of the Land Registration (Scotland) Act 1979, at the price at which the said subjects were last exposed to sale under deduction of the price received for any part thereof sold, and shall also contain a warrant for recording the extract of the decree in the Register of Sasines.

(6) Upon an extract of the decree of foreclosure being duly recorded, the following provisions of this subsection shall have effect in relation to the security subjects to which the decree relates—

(a) any right to redeem the security shall be extinguished, and the creditor shall have right to, and be vested in, the subjects as if he had received an irredeemable disposition thereof duly recorded from the proprietor of the subjects at the date of the recording of the extract of the decree;

(b) the subjects shall be disburdened of the standard security and all securities and diligences postponed thereto;

(c) the creditor who has obtained the decree shall have the like right as the debtor to redeem any security prior to, orpari passuwith, his own security.

(7) Notwithstanding the due recording of an extract of a decree of foreclosure, any personal obligation of the debtor under the standard security shall remain in full force and effect so far as not extinguished by the price at which the security subjects have been acquired and the price for which any part thereof has been sold.

(8) Where the security subjects or any part thereof have been acquired by a creditor in the security by virtue of a decree of foreclosure under the provisions of this section, the title thereto of the creditor shall not be challengeable on the ground of any irregularity in the proceedings for foreclosure or on calling-up or default which preceded it; but nothing in the provisions of this subsection shall affect the competency of any claim for damages in respect of such proceedings against the creditor.

Procedure

29

(1) The court for the purposes of this Part of this Act, and for the operation of section 11 of the Heritable Securities (Scotland) Act 1894 (application by pari passu creditor to sell), in relation to a standard security, shall be the sheriff having jurisdiction over any part of the security subjects, and the sheriff shall be deemed to have such jurisdiction whatever the value of the subjects.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation of Part II

30

(1) In this Part of this Act, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say—

“creditor” and “debtor” shall include any successor in title, assignee or representative of a creditor or debtor;

“debt” and “creditor” and “debtor”, in relation to a standard security, have the meanings assigned to them by section 9(8) of this Act;

“duly recorded” means recorded in the appropriate division of the General Register of Sasines;

“exposure to sale” means exposure to sale by public roup, and exposed or re-exposed to sale shall be construed accordingly;

“heritable security” has the meaning assigned to it by the said section 9(8);

“real right in land” has the meaning assigned to it by the said section 9(8);

“Register of Sasines” means the appropriate division of the General Register of Sasines;

“the standard conditions” are the conditions (whether varied or not) referred to in section 11(2) of this Act;

“whole amount due” has the meaning assigned to it by section 18(4) of this Act.

(2) For the purpose of construing this Part of this Act in relation to the creation of a security over a registered lease and to any subsequent transactions connected with that security, the following expressions shall have the meanings hereby respectively assigned to them, that is to say—

“conveyance” or “disposition” means assignation;

“convey” or “dispone” means assign;

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

“proprietor” means lessee;

“security subjects” means a registered lease subject to a security.

Saving

31

Nothing in the provisions of this Part of this Act shall affect the validity of any heritable security within the meaning of this Part which has been duly recorded before the commencement of this Act, and any such security may be dealt with, and shall be as capable of being enforced, as if this Part had not been passed.

Application of enactments

32

The provisions of any enactment relating to a bond and disposition or assignation in security shall apply to a standard security, except in so far as such provisions are inconsistent with the provisions of this Part of this Act, but, without prejudice to the generality of that exception, the enactments specified in Schedule 8 to this Act shall not so apply.

Part III — Provisions as to Heritable Securities

Form of notice calling-up heritable security

33

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

Amendment of s. 34 of Act of 1924

34

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

Power of creditor in bond and disposition in security to sell to include power to sell by private bargain

35

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

Alteration of periods during which sale of land held in security is to be advertised

36

For section 38 of the Act of 1924 there shall be substituted the following section—

(38) (1) An advertisement for the purposes of an exposure to sale shall be inserted at least once weekly during a period of not less than three consecutive weeks in accordance with the provisions of this section, and the exposure to sale so advertised shall take place within a period of fourteen days beginning with the day following the day of the publication of the third advertisement required under this subsection. (2) An advertisement for the purposes of an offer for sale by privat bargain shall be inserted in like manner during a period of not less than two consecutive weeks, and it shall be a requirement of a competent sale that an enforceable contract to sell shall be concluded within a period of twenty-eight days beginning with the day following the day of the publication of the second advertisement required under this subsection. (3) Insertion of an advertisement for the purposes of the two foregoing subsections shall be as follows, that is to say— (a) in the case of land situated in the county of Midlothian, in at least one daily newspaper published in Edinburgh; (b) in the case of land situated in the county of Lanark, in at least one daily newspaper published in Glasgow; (c) in the case of land situated elsewhere in Scotland, in at least one daily newspaper published in Scotland circulating in the district where the land or the main part thereof is situated and in at least one newspaper (if any) circulating as aforesaid and published either in the county in which the land, or any part thereof, is situated or in a county (being a county in Scotland) adjacent to that county. (4) A copy of an advertisement required by this section shall, when supported by a certificate of publication by the publisher, printer, or editor of the newspaper in which that advertisement is inserted, be sufficient evidence of the insertion and publication thereof. (5) For the purposes of this section— (a) “a week”means the period between midnight on Saturday night and midnight on the succeeding Saturday night, and (b) “exposure to sale” and “offer for sale” respectively include re-exposure to sale and re-offer for sale.

Amendment of s. 40 of Act of 1924

37

Section 40 of the Act of 1924 (exposure in lots and apportionment of feu-duty etc.) shall be amended as follows—

(a) for the words from the beginning to the words “price or prices and,” there shall be substituted the words—

(1) The land, or any part thereof, may be exposed to, or offered for, sale either in whole or in lots, and in the former case at such upset price or prices as the creditor may think proper, and in the latter case at the best price that can be reasonably obtained,

and

(b) at the end there shall be added the following subsections—

(2) Where there is a sale as aforesaid in lots, the creditor shall have power to create such rights and impose such duties and conditions as he considers may be reasonably required for the proper management, maintenance and use of any part of the land to be held in common by the owners for the time being of the lots. (3) For the purpose of exercising the power conferred by the last foregoing subsection, a creditor shall have the like right as has a proprietor by virtue of section 32 of the Conveyancing (Scotland) Act 1874 to execute and record to the like effect a deed of declaration of conditions in the manner prescribed by that section.

Amendment of s. 41 of Act of 1924

38

For subsection (2) of section 41 of the Act of 1924 (protection of purchasers) there shall be substituted the following subsection—

(2) Where a disposition of land is duly recorded in the appropriate Register of Sasines and that disposition bears to be granted in the exercise of a power of sale contained in a deed granting a bond and disposition in security, and the exercise of that power wasex facieregular, the title of abona fidepurchaser of the land for value shall not be challengeable on the ground that the debt had ceased to exist, unless that fact appeared in the said Register, or was known to the purchaser prior to the payment of the price, or on the ground of any irregularity relating to the sale or in any preliminary procedure thereto; but nothing in the provisions of this subsection shall affect the competency of any claim for damages in respect of the sale of the land against the person exercising the said power.

;

Amendment of s. 8 of Act of 1894

39

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

Discharge of heritable security constituted by ex facie absolute conveyance

40

(1) Where land is held in security by virtue of a heritable security constituted byex facieabsolute conveyance, whether qualified by a back letter or not, a discharge by the creditor in security in conformity with Schedule 9 to this Act, either as a separate deed or as a deed endorsed on the conveyance, shall, as from the date on which that discharge is duly recorded, discharge that heritable security, disburden the land to the extent that it is the subject of the security, and vest that land in the person entitled thereto in like manner and to the like effect as if a conveyance containing a clause of warrandice from fact and deed only and all other usual and necessary clauses had been granted by the creditor to that person and duly recorded.

(2) Nothing in the provisions of the foregoing subsection shall affect any method of granting a discharge in existence at the commencement of this Act.

Restriction on effect of reduction of certain discharges of securities

41

(1) Where the discharge, in whole or in part, of a security over land is duly recorded, whether before or after the commencement of this Act, and that discharge bears to be granted by a person entitled so to do, the title of a person who subsequently acquires the land or a real right in or over itbona fide and for value, shall not be challengeable, after the expiration of a period of five years commencing with the date of the recording of the discharge, by reason only of the recording of an extract of a decree of reduction of the discharge, whether or not the date of that decree was before or after the date on which the acquisition . . . was duly recorded.

(2) Section 46 of the Act of 1924 (which requires extract decrees of reduction of certain deeds to be recorded) shall cease to apply in relation to a decree of reduction of a discharge of a security where that discharge has been duly recorded for a period of five years or more, but the provisions of this subsection shall not preclude the recording of such a decree of reduction as provided for in the said section 46.

(3) Nothing in the provisions of this section shall affect any rights of a creditor in a security as against the debtor therein.

(4) The provisions of this section shall not be pleadable to any effect in any action begun, whether before or after the date of the commencement of this Act, before the expiry of a period of two years beginning with that date.

(5) This section shall apply to an order under section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 rectifying a discharge as it applies to a decree of reduction of a discharge

Extension of s. 13 to certain existing forms of heritable securities

42

Section 13 of this Act shall apply, in relation to the effect on the preference in ranking of any heritable security, constituted by ex facie absolute disposition or assignation, as it applies to the preference in ranking of a standard security.

Interpretation of Part III

43

(1) In this Part of this Act, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say—

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

“the Act of 1924” means the Conveyancing (Scotland) Act 1924;

“land” has the meaning assigned to it by section 2(1) of the Act of 1924.

(2) For the purpose of construing this Part of this Act in relation to the creation of a security over a registered lease and to any subsequent transactions connected with that security, section 30(2) shall apply as it applies to Part II of this Act, and any reference to a security over land, however expressed, shall be construed as a reference to a registered lease subject to a security, and “land” shall be construed accordingly.

Part IV — Other Conveyancing Reforms

Alteration of rules as to probative deeds

44

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

Status of sasine extracts

45

An extract, whether issued before or after the commencement of this Act, of a conveyance, deed, instrument or other document bearing to have been recorded in the Register of Sasines shall be accepted for all purposes as sufficient evidence of the contents of the original so recorded and of any matter relating thereto appearing on the extract.

Effect of conditions as to pre-emption

46

(1) For the avoidance of doubt, in section 9 of the Conveyance Amendment (Scotland) Act 1938 (which limits the effect of conditions as to pre-emption), subsection (1) shall have effect subject to the following amendments—

(a) by inserting after the words “by the proprietor of the feu” the words “(whether or not that right purports to be exercisable on more than one occasion)”; and

(b) by substituting for the words “intimate his intention to exercise such right of pre-emption” the words “accept the offer.”.

(2) In the said subsection, for the reference to forty days there shall be substituted a reference to twenty-one days.

Abolition of requirement to specify granter's title in certain deeds

47

The provisions of Part I of Schedule 10 and Part I of Schedule 11 to this Act shall apply for the purpose of abolishing the requirement that in certain cases the granter of a deed who has a duly recorded title must specify his title in the deed.

Abolition of forms of assignation of unrecorded conveyances, etc., and of completion of title by recording of such assignations

48

The provisions of Part II of Schedule 11 to this Act shall apply for the purpose of repealing certain provisions for the assignation of unrecorded conveyances, deeds and leases and for the completion of title by assignees under such assignations by the recording of the conveyance, deed or lease together with the assignation.

Part V — Miscellaneous

Abolition of heritor's right of pre-emption of glebe

49

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

Amendment of Lands Tribunal Act 1949

50

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In section 3 of the principal Act (procedure, appeals costs and fees), for paragraphs (a), (b) and (c) of subsection (12) there shall be substituted the following paragraphs:—

(a) for subsection (4) of this section there shall be substituted the following subsection:— (“) Section 9 of the Tribunals and Inquiries Act 1958 (appeals from certain tribunals) shall apply, subject to the modifications specified in subsection (6) of that section, to proceedings before the Lands Tribunal as it applies to proceedings before the tribunals referred to in subsection (1) of that section.”; (b) for paragraph (c) of subsection (6) of this section there shall be substituted the following paragraph:— (“) provide for requiring persons to attend to give evidence and produce documents, and for authorising the administration of oaths and witnesses, and for granting to any person such recovery of documents as might be granted by the Court of Session. ”; (c) any person who without reasonable excuse fails to comply with any requirement imposed by rules under this section in accordance with paragraph (c) of subsection (6) of thsi section shall be guilty of an offence and liable on summary conviction to a fine not exceeding £50 or imprisonment for a term not exceeding three months or both; (d) any order of the Tribunal may be recorded for execution in the Books of Council and session and shall be enforceable accordingly; (e) the rule-making authority for the purposes of this Act shall be the Secretary of State.

Part VI — General

Application to Crown

51

This Act shall, subject to any exceptions stated therein, apply to land owned by the Crown or by the Prince and Steward of Scotland, and to land in which there is any other interest belonging to Her Majesty in right of the Crown or to a Government department, or held on behalf of Her Majesty for the purposes of a Government department, in like manner as it applies to other land.

Saving, amendment and repeal

52

(1) Any procedure, notice, advertisement, certificate or warrant instituted, given or granted, or any other thing done under any enactment amended or disapplied by this Act, shall not be invalidated by the coming into force of that amendment or disapplication, but it and any sale or other proceedings dependent thereon shall have effect as if this Act had not come into operation.

(2) The enactments specified in Schedule 10 to this Act shall have effect subject to the amendments specified in that Schedule, being minor amendments and amendments consequential on the provisions of this Act.

(3) The enactments specified in Schedule 11 to this Act are hereby repealed to the extent specified in relation thereto in that Schedule.

Interpretation

53

(1) It shall be sufficient compliance with any provisions in this Act which require any deed, notice, certificate or procedure to be in conformity with a Form or Note, or other requirement of this Act, that that deed, notice, certificate or procedure so conforms as closely as may be, and nothing in this Act shall preclude the inclusion of any additional matter which the person granting the deed or giving or serving the notice or giving the certificate or adopting the procedure may consider relevant.

(2) In any Form prescribed by Schedules 2,4,5,6 and 9 to this Act, and in any Note to those Schedules, the expression “Register for” means the Register of Sasines appropriate for.

(3) Any reference in this Act to any other enactment is a reference thereto as amended, and includes a reference thereto as extended or applied, by or under any other enactment, including this Act.

(4) In this Act, except Part II, unless the context otherwise requires—

“conveyance”, “deed” and “instrument” have the meanings assigned to them in section 3 of the Titles to Land Consolidation (Scotland) Act 1868, section 3 of the Conveyancing (Scotland) Act 1874, and section 2 of the Conveyancing (Scotland) Act 1924;

“duly recorded” means recorded in the appropriate Register of Sasines;

“Lands Tribunal” means the Lands Tribunal for Scotland;

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

“Register of Sasines” has the meaning assigned to it in section 2 of the Conveyancing (Scotland) Act 1924.

Short title, commencement and extent

54

(1) This Act may be cited as the Conveyancing and Feudal Reform (Scotland) Act 1970

(2) This Act shall come into operation—

(a) except as respects sections 1 to 6, section 50, sections 51 to 53 in so far as they relate to those sections, and this section, at the expiration of a period of six months beginning with the date on which it is passed,

(b) as respects sections 1 to 6 and sections 51 to 53 in so far as they relate to those sections, on such date as the Secretary of State may by order made by statutory instrument appoint, and different days may be appointed for different provisions,

(c) as respects section 50, sections 51 to 53 in so far as they relate thereto, and this section, on the passing of this Act;

and any reference in any provision of this Act to the commencement of this Act shall, unless otherwise provided by any such order, be construed as a reference to the date on which that provision comes into operation.

(3) This Act shall extend to Scotland only.

SCHEDULE 1

1

An obligation to pay feuduty, ground annual, rent, skat, dry multure, teind, stipend, standard charge or other payment of a like nature, or an obligation of relief relating to any such payment.

2

An obligation, however constituted, relating to the right to work minerals or to any ancillary right in relation to minerals within the meaning of section 2 of the Mines (Working Facilities and Support) Act 1966.

3

An obligation imposed by or on behalf of the Crown for the protection of any royal park, garden or palace.

4

An obligation created or imposed—

(i) for naval, military or air force purposes;

(ii) for civil aviation purposes under the powers conferred by section 19 or 23 of the Civil Aviation Act 1949 or any enactment replaced thereby:

(i) shall exclude the application of section 1 of this Act to an obligation falling within sub-paragraph (i) above, and not created or imposed in connection with the use of any land as an aerodrome, only so long as the obligation is enforceable by or on behalf of the Crown; and

(ii) shall exclude the application of section 1 of this Act to an obligation falling within sub-paragraph (ii) above, or created or imposed in connection with the use of any land as an aerodrome, only so long as the obligation is enforceable by or on behalf of the Crown or any public or international authority.

5

An obligation created or imposed in or in relation to a lease . . . —

(a) constituting a 1991 Act tenancy, within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11);

(aa) constituting a short limited duration tenancy or a limited duration tenancy, within the meaning of that Act;

(b) of a holding, within the meaning of the Small Landholders (Scotland) Acts 1886 to 1931; or