- Latest available (Revised)
- Original (As enacted)
Bankruptcy and Diligence etc. (Scotland) Act 2007,
Part 5
is up to date with all changes known to be in force on or before 29 August 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.
Whole provisions yet to be inserted into this Act (including any effects on those provisions):
(1)Inhibition in execution is competent to enforce—
(a)payment of a debt constituted by a decree or document of debt;
(b)subject to subsection (2) below, an obligation to perform a particular act (other than payment) contained in a decree.
(2)Inhibition under subsection (1)(b) above is competent only if the decree is a decree—
(a)in an action containing an alternative conclusion or crave for payment of a sum other than by way of expenses; or
(b)for specific implement of an obligation to convey heritable property to the creditor or to grant in the creditor's favour a real right in security, or some other right, over such property.
(3)In section 3 of the Writs Execution (Scotland) Act 1877 (c. 40) (warrant in extract writ to authorise diligence), after paragraph (b) insert—
“(ba)in relation to an ordinary debt within the meaning of the Debtors (Scotland) Act 1987, inhibition against the debtor;”.
(4)In section 7(1) of the Sheriff Courts (Scotland) Extracts Act 1892 (c. 17) (warrant in extract decree to authorise diligence), after paragraph (b) insert—
“(ba)in relation to an ordinary debt within the meaning of the Debtors (Scotland) Act 1987, inhibition against the debtor;”.
(5)In section 87(2) of the 1987 Act (warrant in extract decree to authorise diligence), after paragraph (b) insert—
“(ba)in relation to an ordinary debt, inhibition against the debtor;”.
(6)It is not competent for the Court of Session to grant letters of inhibition.
(7)In a case where inhibition is executed under subsection (1)(b) above—
(a)sections 165 and 166 of this Act do not apply; and
(b)sections 158, 159, 160 and 163 of this Act have effect as if references to a “debtor” or “creditor” were references to the debtor or creditor in the obligation.
(8)In this Part—
“decree” has the meaning given by section 221 of this Act, except that paragraphs (c), (g) and (h) of the definition of “decree” in that section do not apply; and
“document of debt” has the meaning given by section 221 of this Act.
(9)The Scottish Ministers may by order modify the definitions of “decree” and “document of debt” in subsection (8) above by—
(a)adding types of decree or document to;
(b)removing types of decree or document from; or
(c)varying the description of,
the types of decree or document to which those definitions apply.
Commencement Information
I1S. 146 wholly in force at 22.4.2009; s. 146 not in force at Royal Assent see s. 227; s. 146(9) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 146 otherwise in force at 22.4.2009 by S.S.I. 2009/67, art. 3(1) (with transitional modifications and savings in arts. 4-6)
Where the debtor is an individual, a schedule of inhibition served in execution of an inhibition under section 146(1) of this Act (other than an inhibition such as is mentioned in section 146(2)(b)) must be accompanied with a debt advice and information package.
(1)An inhibition is registered only by registering—
(a)the schedule of inhibition; and
(b)the certificate of execution of the inhibition,
in the Register of Inhibitions.
(2)References in any enactment to registering or, as the case may be, recording an inhibition must, unless the context otherwise requires, be construed as references to registration in accordance with subsection (1) above.
(3)The—
(a)schedule of inhibition; and
(b)certificate of execution of the inhibition,
must be in (or as nearly as may be in) the form prescribed by the Scottish Ministers by regulations.
Commencement Information
I2S. 148 wholly in force; s. 148 not in force at Royal Assent see s. 227; s. 148(3) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 148 otherwise in force at 22.4.2009 by S.S.I. 2009/67, art. 3(1) (with transitional modifications and savings in arts. 4-6)
(1)This section applies in relation to a document which is required or permitted to be registered or recorded in the Register of Inhibitions.
(2)An electronic signature fulfils any requirement (however expressed) that the document be signed in order to be registered or recorded in the Register.
(3)Any requirement (however expressed) that the document be given to the Keeper in order to be registered or recorded in the Register may be fulfilled by transmitting it to the Keeper electronically.
(4)For the purposes of subsection (3), the document must be transmitted by a means (and in a form) which is specified on the Keeper’s website as being acceptable for those purposes.
(5)In this section—
“document” includes a copy of a document,
“electronic signature” is to be construed in accordance with section 7(2) of the Electronic Communications Act 2000, but includes a version of an electronic signature which is reproduced on a paper document,
“the Keeper” means the Keeper of the Registers of Scotland,
“the Keeper’s website” means the website maintained by, or on behalf of, the Keeper of the Registers of Scotland.]
Textual Amendments
F1S. 148A inserted (1.10.2022) by Coronavirus (Recovery and Reform) (Scotland) Act 2022 (asp 8), ss. 34(2), 59(1) (with s. 48(1)(c)(2)(c)(3)(b))
In the Titles to Land Consolidation (Scotland) Act 1868 (c. 101) (in this Chapter, the “1868 Act”), for section 155 (date on which inhibitions take effect) substitute—
(1)An inhibition has effect from the beginning of the day on which it is registered unless the circumstances referred to in subsection (2) below apply.
(2)Those circumstances are—
(a)a notice of inhibition is registered in the Register of Inhibitions;
(b)the schedule of inhibition is served on the debtor after that notice is registered; and
(c)the inhibition is registered before the expiry of the period of 21 days beginning with the day on which the notice is registered.
(3)In those circumstances the inhibition has effect from the beginning of the day on which the schedule of inhibition is served.
(4)A notice of inhibition must be in (or as nearly as may be in) the form prescribed.”.
Commencement Information
I3S. 149 wholly in force at 22.4.2009; s. 149 not in force at Royal Assent see s. 227; s. 149 in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 149 otherwise in force at 22.4.2009 by S.S.I. 2009/67, art. 3(1) (with transitional modifications and savings in arts. 4-6)
(1)Subject to section 153 of this Act, inhibition may affect any heritable property.
(2)Any enactment or rule of law by virtue of which inhibition may affect other property ceases to have effect.
(3)For the purposes of subsection (1) above and section 157 of the 1868 Act, a person acquires property at the beginning of the day on which the deed conveying or otherwise granting a real right in the property is delivered to that person.
Where—
(a)an inhibition is executed to enforce a decree such as is mentioned in section 146(2)(a) of this Act; and
(b)decree is subsequently granted in terms of the alternative conclusion or crave mentioned in that section,
the inhibition continues to have effect for the purposes of enforcing payment of the debt constituted by that subsequent decree.
[F2(1)F2][F3Subject to subsection (2) below,]F3 where—
(a)a creditor obtains a decree for payment of all or part of a principal sum concluded or craved for in proceedings on the dependence of which warrant for inhibition was granted; and
(b)the warrant was limited to specified property by virtue of section 15J(b) of the 1987 Act (property affected by inhibition on dependence),
[F4any inhibition on the dependence which, on decree, becomes an inhibition in execution of that decree, is no longer limited to that property]
[F5F4(2)Subsection (1) above has effect from the beginning of the day on which–
(a)an extract of the decree (or a copy of the interlocutor certified by the clerk of court); and
(b)a notice in (or as nearly as may be in) the form set out in the Schedule to the Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order 2009,
are registered in the Register of Inhibitions.F5]
Textual Amendments
F2S. 152 renumbered as s. 152(1) (22.4.2009) by The Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order (S.S.I. 2009/219), {art. 2(a)}
F3Words in s. 152(1) inserted (22.4.2009) by The Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order (S.S.I. 2009/219), {art. 2(b)}
F4Words in s. 152(1) substituted (22.4.2009) by The Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order (S.S.I. 2009/219), {art. 2(b)}
F5S. 152(2) inserted (22.4.2009) by The Bankruptcy and Diligence etc. (Scotland) Act 2007 (Inhibition) Order (S.S.I. 2009/219), {art. 2(c)} (with transitional modifications in art. 4)
Where a decree such as is mentioned in section 146(2)(b) of this Act is granted, any inhibition executed to enforce that decree is limited to the property to which the decree relates.
(1)An inhibition does not confer any preference in any—
(a)sequestration;
(b)insolvency proceedings; or
(c)other process in which there is ranking.
(2)Subsection (1) above does not affect any preference claimed in—
(a)a sequestration;
(b)insolvency proceedings; or
(c)any other process,
where the inhibition has effect before this section comes into force.
(3)For the avoidance of doubt, in this section, “other process” includes the process, under section 27(1) of the Conveyancing and Feudal Reform (Scotland) Act 1970 (c. 35), of applying the proceeds of sale where a creditor in a standard security has effected a sale of the security subjects.
(4)In this section, “insolvency proceedings” means—
(a)winding up;
(b)receivership;
(c)administration; and
(d)proceedings in relation to a company voluntary arrangement,
within the meaning of the Insolvency Act 1986 (c. 45).
(1)The Insolvency Act 1986 (c. 45) is amended as follows.
(2)After section 61(1) (which sets out the process by which a receiver may dispose of property subject to both the floating charge and to another security, other encumbrance or diligence) insert—
“(1A)For the purposes of subsection (1) above, an inhibition which takes effect after the creation of the floating charge by virtue of which the receiver was appointed is not an effectual diligence.”.
(3)After section 166(1) (which applies the provisions of that section to a liquidator nominated by the company in a creditors' voluntary winding up) insert—
“(1A)The exercise by the liquidator of the power specified in paragraph 6 of Schedule 4 to this Act (power to sell any of the company's property) shall not be challengeable on the ground of any prior inhibition.”.
In section 44(3) of the Conveyancing (Scotland) Act 1924 (c. 27) (limitation of effect of certain entries in the Register of Inhibitions and Adjudications)—
(a)in paragraph (a), the word “inhibitions,”, where it second occurs, is repealed; and
(b)after that paragraph insert—
“(aa)all inhibitions shall cease to have effect on the lapse of five years from the date on which they take effect.”.
(1)This section applies where—
(a)an inhibition executed to enforce payment of a debt has effect; and
(b)a sum is paid, in respect of the debt constituted by the decree or document of debt authorising the inhibition, to the creditor, [F6an officer of court] or any other person who has authority to receive payment on behalf of the creditor.
(2)Where the sum paid amounts to the sum of—
(a)the debt (including any interest due under the decree or document of debt);
(b)the expenses incurred by the creditor in executing an inhibition (referred to in this section and in sections 165 and 166 as the “inhibition expenses”); and
(c)the expenses of discharging the inhibition,
the inhibition ceases to have effect.
(3)Any rule of law to the effect that an inhibition ceases to have effect on payment or tender of the debt constituted by the decree or document of debt is abolished.
(4)This section and sections 165 and 166 of this Act do not apply to an inhibition on the dependence of an action.
Textual Amendments
F6Words in s. 157(1)(b) substituted (31.1.2011) by Public Services Reform (Scotland) Act 2010 (asp 8), s. 134(7), Sch. 4 para. 25(a); S.S.I. 2011/30, art. 3(1)(3), Sch. 1
Where—
(a)an inhibition executed to enforce an obligation to perform a particular act (other than payment) contained in a decree has effect; and
(b)the debtor has complied with the decree,
the inhibition ceases to have effect.
(1)Notwithstanding section 160 of this Act, an inhibition ceases to have effect (and is treated as never having had effect) in relation to property if a person acquires the property (or a right in the property) in good faith and for adequate consideration.
(2)For the purposes of subsection (1) above, a person acquires property (or a right in the property) when the deed conveying (or granting the right in) the property is delivered to the person.
(3)An acquisition under subsection (1) above may be from the inhibited debtor or any other person who has acquired the property or right (regardless of whether that person acquired in good faith or for value).
(4)For the purposes of subsection (1) above, a person is presumed to have acted in good faith if the person—
(a)is unaware of the inhibition; and
(b)has taken all reasonable steps to discover the existence of an inhibition affecting the property.
An inhibited debtor breaches the inhibition when the debtor delivers a deed—
(a)conveying; or
(b)otherwise granting a right in,
property over which the inhibition has effect to a person other than the inhibiting creditor.
For the avoidance of doubt, section 8(1) of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (extinction of certain rights relating to property by prescriptive period of 20 years) applies to the right of an inhibitor to have a deed granted in breach of an inhibition reduced.
After section 159 of the 1868 Act insert—
(1)This section applies where a pursuer raises an action of reduction of a conveyance or deed of or relating to lands granted in breach of an inhibition.
(2)The pursuer shall, as soon as is reasonably practicable after the summons in the action is signeted—
(a)register a notice of that signeted summons in accordance with section 159 of this Act; and
(b)register in the Land Register of Scotland or, as the case may be, record in the Register of Sasines a copy of that notice.
(3)Where a decree of reduction is not obtained in the action to which the notice relates, the pursuer shall, as soon as is reasonably practicable—
(a)register in the Register of Inhibitions; and
(b)register in the Land Register of Scotland or, as the case may be, record in the Register of Sasines,
a discharge of that notice in (or as nearly as may be in) the form prescribed.”.
Commencement Information
I4S. 162 wholly in force at 22.4.2009; s. 162 not in force at Royal Assent see s. 227; s. 162 in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 162 otherwise in force at 22.4.2009 by S.S.I. 2009/67, art. 3(1) (with transitional modifications and savings in arts. 4-6)
(1)This section applies where an inhibited debtor grants a lease of property affected by the inhibition.
(2)A lease which, on the date an action of reduction of the lease is raised, has an unexpired duration of not less than 5 years is reducible.
(3)A lease which, on the date an action of reduction of the lease is raised, has an unexpired duration of less than 5 years may be reduced only if the Court of Session is satisfied that it would be fair and reasonable in all the circumstances to do so.
(4)In calculating the unexpired duration of a lease for the purposes of subsections (2) and (3) above—
(a)any provision in the lease (however expressed) enabling the lease to be terminated earlier than the date on which the lease would otherwise terminate must be disregarded; and
(b)where the lease includes provision (however expressed) requiring the landlord to renew it, the duration of any such renewed lease must be added to the duration of the original lease.
(1)In section 159 of the 1868 Act (no litigiosity before date notice of summons is registered), for the words from “set” to “annexed” substitute “ be in (or as nearly as may be in) the form prescribed. ”.
(2)After section 159A of that Act (which is inserted by section 162 of this Act) insert—
(1)In sections 155, 159 and 159A of this Act, “prescribed” means prescribed by the Scottish Ministers by regulations.
(2)The power conferred on the Scottish Ministers to make regulations under subsection (1) above is exercisable by statutory instrument.
(3)A statutory instrument containing regulations made under subsection (1) above is subject to annulment in pursuance of a resolution of the Scottish Parliament.”.
Commencement Information
I5S. 164 wholly in force at 22.4.2009; s. 164 not in force at Royal Assent see s. 227; s. 164(1)(2) in force for certain purposes at 1.4.2008 by S.S.I. 2008/115, art. 3(4), Sch. 3 (with arts. 4-6, 10); s. 164 otherwise in force at 22.4.2009 by S.S.I. 2009/67, art. 3(1) (with transitional modifications and savings in arts. 4-6)
(1)Subject to subsection (3) below, the inhibition expenses are chargeable against the debtor.
(2)Inhibition expenses are recoverable from the debtor by land attachment or residual attachment executed for the purpose of enforcing payment of the debt to which the inhibition relates but not by any other legal process.
(3)Where a creditor has executed an inhibition, the expenses of only one further inhibition in relation to the debt to which the first inhibition relates are chargeable against the debtor as inhibition expenses.
(4)For the purposes of a sequestration or other process in which there is ranking, the inhibition expenses must be treated as part of the debt constituted by the decree or document of debt authorising the inhibition.
Commencement Information
I6S. 165 partly in force; s. 165 not in force at Royal Assent see s. 227; s. 165(1)(3)(4) in force at 22.4.2009 by S.S.I. 2009/67, art. 3 (with transitional modifications and savings in arts. 4-6)
(1)This section applies where—
(a)an inhibition has effect; and
(b)any sums are paid to account of the sums recoverable from the debtor by virtue of the decree or document of debt authorising the inhibition.
(2)Such sums must be ascribed to the following in the order in which they are mentioned—
(a)the expenses which are chargeable against the debtor incurred in respect of any diligence (other than the inhibition) authorised by the decree or document of debt;
(b)the inhibition expenses;
(c)any interest which has accrued, at the date on which the inhibition takes effect, on the debt constituted by the decree or document of debt;
(d)the debt constituted by the decree or document of debt together with such interest as has accrued after the date on which the inhibition takes effect.
In section 6 of the Land Registration (Scotland) Act 1979 (c. 33) (content of title sheet)—
(a)in subsection (1)(c), at the beginning insert “ subject to subsection (1A) below, ”; and
(b)after subsection (1) insert—
“(1A)The Keeper shall enter an inhibition registered in the Register of Inhibitions in the title sheet only when completing registration of an interest in land where the interest has been transferred or created in breach of the inhibition.”.
(1)Notwithstanding the appointment of a judicial factor on a debtor's estate, an inhibition has effect.
(2)But subsection (1) above does not apply in a case where—
(a)a judicial factor is appointed under section 11A of the Judicial Factors (Scotland) Act 1889 (c. 39) (application for judicial factor on deceased person's estate); and
(b)the inhibition was effective against the debtor prior to the debtor's death.
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:
Click 'View More' or select 'More Resources' tab for additional information including: