Bankruptcy (Scotland) Act 1985 (repealed)

Changes over time for: Section 40

Version Superseded: 01/04/2015

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Point in time view as at 15/11/2010. This version of this provision has been superseded.

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Bankruptcy (Scotland) Act 1985 (repealed), Section 40 is up to date with all changes known to be in force on or before 14 July 2024.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.

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40[F1Power of trustee in relation to the debtor's family home]S

(1)Before the F2. . . trustee [F3or the trustee acting under the trust deed] sells or disposes of any right or interest in the debtor’s family home he shall—

(a)obtain the relevant consent; or

(b)where he is unable to do so, obtain the authority of the [F4sheriff] in accordance with subsection (2) below.

(2)Where the F2. . . trustee [F3or the trustee acting under the trust deed] requires to obtain the authority of the [F5sheriff] in terms of subsection (1)(b) above, the [F5sheriff] , after having regard to all the circumstances of the case, including—

(a)the needs and financial resources of the debtor’s spouse or former spouse;

[F6(aa)the needs and financial resources of the debtor’s civil partner or former civil partner;]

(b)the needs and financial resources of any child of the family;

(c)the interests of the creditors;

(d)the length of the period during which (whether before or after the relevant date) the family home was used as a residence by any of the persons referred to in [F7paragraphs (a) to (b)] above,

may refuse to grant the application or may postpone the granting of the application for such period (not exceeding [F83 years]) as [F9he] may consider reasonable in the circumstances or may grant the application subject to such conditions as [F9he] may prescribe.

(3)Subsection (2) above shall apply—

(a)to an action for division and sale of the debtor’s family home; or

(b)to an action for the purpose of obtaining vacant possession of the debtor’s family home,

brought by the F2. . . trustee [F3or the trustee acting under the trust deed] as it applies to an application under subsection (1)(b) above and, for the purposes of this subsection, any reference in the said subsection (2) to that granting of the application shall be construed as a reference to the granting of decree in the action.

[F10(3A)Before commencing proceedings to obtain the authority of the sheriff under subsection (1)(b) the trustee, or the trustee acting under the trust deed, must give notice of the proceedings to the local authority in whose area the home is situated.

(3B)Notice under subsection (3A) must be given in such form and manner as may be prescribed by the Scottish Ministers.]

(4)In this section—

(a)“family home” means any property in which, at the relevant date, the debtor had (whether alone or in common with any other person) a right or interest, being property which was occupied at that date as a residence by the debtor and his spouse [F11or civil partner] or by the debtor’s spouse [F12or civil partner] or former spouse [F12or civil partner](in any case with or without a child of the family) or by the debtor with a child of the family;

(b)“child of the family” includes any child or grandchild of either the debtor or his spouse [F13or civil partner] or former spouse [F13or civil partner], and any person who has been brought up or accepted by either the debtor or his spouse [F14or civil partner] or former spouse [F14or civil partner] as if he or she were a child of the debtor, spouse [F14or civil partner] or former spouse [F14or civil partner] whatever the age of such a child, grandchild or person may be;

[F15(ba)“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);]

(c)“relevant consent” means in relation to the sale or disposal of any right or interest in a family home—

(i)in a case where the family home is occupied by the debtor’s spouse [F16or civil partner] or former spouse [F16or civil partner] , the consent of the spouse [F16or civil partner] , or, as the case may be, the former spouse [F16or civil partner] , whether or not the family home is also occupied by the debtor;

(ii)where sub-paragraph (i) above does not apply, in a case where the family home is occupied by the debtor with a child of the family, the consent of the debtor; and

(d)“relevant date” means the day immediately preceding the date of sequestration [F17or, as the case may be, the day immediately preceding the date the trust deed was granted].

Textual Amendments

F1S. 40 heading substituted (1.4.2008) by virtue of Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 36, 227(3), Sch. 1 para. 36(c) (with s. 223); S.S.I. 2008/115, art. 3(1)(i) (with arts. 4-6, 10 (as amended (with effect from 31.1.2011) by S.S.I. 2011/31, art. 5))