Bankruptcy and Diligence etc. (Scotland) Act 2007

19 Debtor’s home and other heritable property

(1) After section 32(9) of the 1985 Act (circumstances where dealings with debtor not challengeable by permanent trustee), insert—

“(9A) Where the trustee has abandoned to the debtor any heritable property, notice in such form as may be prescribed given to the debtor by the trustee shall be sufficient evidence that the property is vested in the debtor.

(9B) Where the trustee gives notice under subsection (9A) above, he shall, as soon as reasonably practicable after giving the notice, record a certified copy of it in the register of inhibitions.”.

(2) After section 39 of that Act, insert—

“39A Debtor’s home ceasing to form part of sequestrated estate

(1) This section applies where a debtor’s sequestrated estate includes any right or interest in the debtor’s family home.

(2) At the end of the period of 3 years beginning with the date of sequestration the right or interest mentioned in subsection (1) above shall—

(a) cease to form part of the debtor’s sequestrated estate; and

(b) be reinvested in the debtor (without disposition, conveyance, assignation or other transfer).

(3) Subsection (2) above shall not apply if, during the period mentioned in that subsection—

(a) the trustee disposes of or otherwise realises the right or interest mentioned in subsection (1) above;

(b) the trustee concludes missives for sale of the right or interest;

(c) the trustee sends a memorandum to the keeper of the register of inhibitions under section 14(4) of this Act;

(d) the trustee registers in the Land Register of Scotland or, as the case may be, records in the Register of Sasines a notice of title in relation to the right or interest mentioned in subsection (1) above;

(e) the trustee commences proceedings—

(i) to obtain the authority of the sheriff under section 40(1)(b) of this Act to sell or dispose of the right or interest;

(ii) in an action for division and sale of the family home; or

(iii) in an action for the purpose of obtaining vacant possession of the family home;

(f) the trustee and the debtor enter into an agreement such as is mentioned in subsection (5) below.

(4) The Scottish Ministers may, by regulations, modify paragraphs (a) to (f) of subsection (3) above so as to—

(a) add or remove a matter; or

(b) vary any such matter,

referred to in that subsection.

(5) The agreement referred to in subsection (3)(f) above is an agreement that the debtor shall incur a specified liability to his estate (with or without interest from the date of the agreement) in consideration of which the right or interest mentioned in subsection (1) above shall—

(a) cease to form part of the debtor’s sequestrated estate; and

(b) be reinvested in the debtor (without disposition, conveyance, assignation or other transfer).

(6) If the debtor does not inform the trustee or the Accountant in Bankruptcy of his right or interest in the family home before the end of the period of 3 months beginning with the date of sequestration, the period of 3 years mentioned in subsection (2) above—

(a) shall not begin with the date of sequestration; but

(b) shall begin with the date on which the trustee or the Accountant in Bankruptcy becomes aware of the debtor’s right or interest.

(7) The sheriff may, on the application of the trustee, substitute for the period of 3 years mentioned in subsection (2) above a longer period—

(a) in prescribed circumstances; and

(b) in such other circumstances as the sheriff thinks appropriate.

(8) The Scottish Ministers may, by regulations—

(a) make provision for this section to have effect with the substitution, in such circumstances as the regulations may prescribe, of a shorter period for the period of 3 years mentioned in subsection (2) above;

(b) prescribe circumstances in which this section does not apply;

(c) prescribe circumstances in which a sheriff may disapply this section;

(d) make provision requiring the trustee to give notice that this section applies or does not apply;

(e) make provision about compensation;

(f) make such provision as they consider necessary or expedient in consequence of regulations made under paragraphs (a) to (e) above.

(9) In this section, “family home” has the same meaning as in section 40 of this Act.”.