Housing (Scotland) Act 2006

Part 7 S Repayment charges

172 Repayment charges S

(1) A local authority entitled to recover a sum under section 59(1) or (2) [F1 , section 61(3A), subsection (6A) below] [F2 , paragraph 6(1) of schedule 5 or section 4A(5) of the Tenements (Scotland) Act 2004 (asp 11)] may make in favour of itself a charge (a “repayment charge”)—

(a) specifying the repayable amount and the [F3 property] concerned, F4 ...

(b) providing that the [F3 property] concerned is charged with the repayable amount.

[F5 (c) providing that the repayable amount is payable in the number of equal annual instalments and on the date in each year determined under subsection (3)(a),

(d) providing that in default of such payment each instalment, together with any amount recoverable in respect of that instalment under subsection (6A), is to be separately recoverable as a debt, and

(e) providing that if immediately after the final instalment falls due any balance of the repayable amount remains unpaid, that balance is immediately due for repayment and is recoverable as a debt.]

(2) The repayable amount is the lowest of—

(a) the amount recoverable under section 59(1) or (2) [F6 , section 61(3A), subsection (6A) below, paragraph 6(1) of schedule 5 or section 4A(5) of the Tenements (Scotland) Act 2004],

(b) any lower amount determined by the local authority, and

(c) any amount which the Scottish Ministers by order prescribe as the maximum repayable amount.

[F7 (3) The local authority must—

(a) determine—

(i) the number of equal annual instalments, being no fewer than 5 and no more than 30, in which the repayable amount is to be paid, and

(ii) the date in each year on which the instalment becomes due, and

(b) notify the owner of its determination under paragraph (a).]

(4) The local authority must register a repayment charge in the appropriate land register.

[F8 (4A) The owner of a property who is liable for the repayable amount does not, by virtue only of ceasing to be such an owner, cease to be liable for the repayable amount.]

(5) The owner of, or any other person interested in, any [F9 property] subject to a repayment charge may at any time redeem the repayable amount early by paying to the local authority—

(a) such sum as the owner or other person may agree with the local authority, or

(b) failing such agreement, such sum as the Scottish Ministers may determine.

(6) The local authority must, on receiving—

(a) payment of the repayable amount in accordance with the repayment charge, or

(b) a sum redeeming the repayable amount under subsection (5),

register a discharge of the repayment charge in the appropriate land register.

[F10 (6A) A local authority may recover—

(a) the amount of any fee payable in respect of registering a repayment charge or a discharge of such a charge,

(b) any administrative expenses incurred by it in connection with the registration, and

(c) interest, at such reasonable rate as it may determine, from the date when a demand for payment is served until the whole amount is paid,

from the owner of the [F11 property] concerned.]

[F12 (6B) Subsection (6A)(c) does not apply where the recoverable amount relates to a sum the local authority is entitled to recover under section 4A(5) of the Tenements (Scotland) Act 2004 (asp 11).]

(7) Where a repayment charge is made in respect of expenses incurred by a local authority in demolishing a house, references in this section and in section 173 to [F13 property] are to be read as references to the site of the demolished house.

(8) This section does not apply in relation to—

(a) the recovery of sums under section 59(2) from a landlord who is not the owner of the [F14 property] concerned,

(b) [F14 property] which is not a building.

[F15 (9) In this section and in section 173, “ property ” means a place which is—

(a) living accommodation, or

(b) non-residential premises within the meaning of section 69(3).]

Textual Amendments

F1 Words in s. 172(1) inserted (1.3.2011) by Housing (Scotland) Act 2010 (asp 17), ss. 150(4)(a), 166(2); S.S.I. 2011/96, art. 2, Sch.

F2 Words in s. 172(1) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 85(2)(a), 104(3); S.S.I. 2015/122, art. 2

F3 Word in s. 172(1) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(a), 104(3); S.S.I. 2015/122, art. 2

F4 Word in s. 172(1) repealed (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 91(1)(a)(i), 104(3); S.S.I. 2015/122, art. 2

F5 S. 172(1)(c)-(e) inserted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 91(1)(a)(ii), 104(3); S.S.I. 2015/122, art. 2

F6 Words in s. 172(2)(a) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 85(2)(b), 104(3); S.S.I. 2015/122, art. 2

F7 S. 172(3) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 91(1)(b), 104(3); S.S.I. 2015/122, art. 2

F8 S. 172(4A) inserted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 91(1)(c), 104(3); S.S.I. 2015/122, art. 2

F9 Word in s. 172(5) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(b), 104(3); S.S.I. 2015/122, art. 2

F10 S. 172(6A) inserted (1.3.2011) by Housing (Scotland) Act 2010 (asp 17), ss. 150(4)(b), 166(2); S.S.I. 2011/96, art. 2, Sch.

F11 Word in s. 172(6A) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(c), 104(3); S.S.I. 2015/122, art. 2

F12 S. 172(6B) inserted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 85(2)(c), 104(3); S.S.I. 2015/122, art. 2

F13 Word in s. 172(7) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(d), 104(3); S.S.I. 2015/122, art. 2

F14 Word in s. 172(8) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(e), 104(3); S.S.I. 2015/122, art. 2

F15 S. 172(9) inserted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(1)(f), 104(3); S.S.I. 2015/122, art. 2

[F16 172A Repayment charge: appeals to the sheriff S

(1) A person aggrieved by a determination under section 172(3)(a)(i) may appeal to the sheriff.

(2) On an appeal under this section the sheriff may make such order relating to the number of annual instalments as the sheriff thinks fit.

(3) The decision of the sheriff on appeal under this section is final.]

Textual Amendments

F16 S. 172A inserted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 91(2), 104(3); S.S.I. 2015/122, art. 2

173 Effect of registering repayment charges etc. S

(1) A registered repayment charge is conclusive evidence that the charge specified in it has been created in respect of the [F17 property] specified in it.

(2) A registered repayment charge constitutes a charge on the [F18 property] specified in it and has priority over—

(a) all future burdens and incumbrances on the same [F18 property], and

(b) all existing burdens and incumbrances on the same [F18 property] except any charges created or arising under—

F19 (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) any local Act authorising a charge for recovery of expenses incurred by a local authority,

(iii) Schedule 9 of the 1987 Act,

(iv) section 172, or

(v) any Act authorising advances of public money.

(3) A registered repayment charge is enforceable at the instance of the local authority against any person deriving title to the charged [F20 property].

(4) But it is not enforceable against—

(a) a third party who acquires right to the charged [F21 property] (whether title has been completed or not) in good faith and for value before the repayment charge is registered, or

(b) any person deriving title from such third party.

(5) A registered discharge of a repayment charge is conclusive evidence that the charge concerned has been discharged.

Textual Amendments

F17 Word in s. 173(1) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(2)(a), 104(3); S.S.I. 2015/122, art. 2

F18 Word in s. 173(2) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(2)(b), 104(3); S.S.I. 2015/122, art. 2

F19 S. 173(2)(b)(i) repealed (1.10.2009) by Public Health etc. (Scotland) Act 2008 (asp 5), s. 128(2), Sch. 3 Pt. 1 (with s. 127); S.S.I. 2009/319, art. 2(a), Sch. 1

F20 Word in s. 173(3) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(2)(c), 104(3); S.S.I. 2015/122, art. 2

F21 Word in s. 173(4) substituted (1.4.2015) by Housing (Scotland) Act 2014 (asp 14), ss. 90(2)(d), 104(3); S.S.I. 2015/122, art. 2

174 Repayment charges: further provision S

The Scottish Ministers may by order—

(a) specify the form which a repayment charge, or a discharge of a repayment charge, must be in,

(b) make such further provision as they think fit about the repayment or early redemption of amounts repayable under a repayment charge.

[F22 174A Repayment charges: registered social landlords S

(1) The Scottish Ministers may by regulations make provision allowing a registered social landlord to make in favour of itself a charge to recover a sum which—

(a) the registered social landlord is entitled to recover from an owner of a flat in a tenement, and

(b) represents the owner's share of scheme costs as determined in accordance with section 4A(3) of the 2004 Act.

(2) Regulations under subsection (1) may, in particular—

(a) apply (with or without modifications), or make provision similar to, any provision of or made under this Part,

(b) prescribe conditions which must apply before a charge can be made in relation to a sum mentioned in subsection (1), including conditions relating to—

(i) the registered social landlord which may make a charge,

(ii) the circumstances leading to the sum becoming recoverable by the registered social landlord,

(c) modify the Tenement Management Scheme or its operation,

(d) make provision about rights of appeal which apply in relation to—

(i) the decision to impose a charge,

(ii) the terms of the charge.

(3) Before making regulations under subsection (1), the Scottish Ministers must consult—

(a) such bodies representing local authorities,

(b) such bodies representing registered social landlords,

(c) such other persons,

as they think fit.

(4) Regulations under subsection (1) may modify any enactment (including this Act).

(5) In this section—

• “ owner of a flat in a tenement ” is to be construed in accordance with the definition of “owner” in section 28 of the 2004 Act,

• “ registered social landlord ” means a body registered in the register maintained under section 20(1) of the Housing (Scotland) Act 2010 (asp 17),

• “ Tenement Management Scheme ” has the same meaning as in the 2004 Act, and

• “ the 2004 Act ” means the Tenements (Scotland) Act 2004 (asp 11). ]

Textual Amendments

F22 S. 174A inserted (20.11.2014) by Housing (Scotland) Act 2014 (asp 14), ss. 85(3), 104(3); S.S.I. 2014/264, art. 2, Sch.