Debtors (Scotland) Act 1987

Section 74.

SCHEDULE 5 S POINDINGS AND SALES IN PURSUANCE OF SUMMARY WARRANTS

Modifications etc. (not altering text)

C1 Sch. 5 restricted (1.8.1994) by S.I. 1994/1774, reg. 43(7)

Articles exempt from poinding S

1 (1) The following articles belonging to a debtor shall be exempt from poinding at the instance of a creditor in respect of a debt due to him by the debtor—

(a) clothing reasonably required for the use of the debtor or any member of his household;

(b) implements, tools of trade, books or other equipment reasonably required for the use of the debtor or any member of his household in the practice of the debtor’s or such member’s profession, trade or business, not exceeding in aggregate value £500 or such amount as may be prescribed in regulations made by the Lord Advocate;

(c) medical aids or medical equipment reasonably required for the use of the debtor or any member of his household;

(d) books or other articles reasonably required for the education or training of the debtor or any member of his household not exceeding in aggregate value £500 or such amount as may be prescribed in regulations made by the Lord Advocate;

(e) toys for the use of any child who is a member of the debtor’s household;

(f) articles reasonably required for the care or upbringing of a child who is a member of the debtor’s household.

(2) The following articles belonging to a debtor shall be exempt from poinding if they are at the time of the poinding in a dwellinghouse and are reasonably required for the use in the dwellinghouse of the person residing there or a member of his household—

(a) beds or bedding;

(b) household linen;

(c) chairs or settees;

(d) tables;

(e) food;

(f) lights or light fittings;

(g) heating appliances;

(h) curtains;

(j) floor coverings;

(k) furniture, equipment or utensils used for cooking, storing or eating food;

(l) refrigerators;

(m) articles used for cleaning, mending, or pressing clothes;

(n) articles used for cleaning the dwellinghouse;

(o) furniture used for storing—

(i) clothing, bedding or household linen;

(ii) articles used for cleaning the dwellinghouse; or

(iii) utensils used for cooking or eating food;

(p) articles used for safety in the dwellinghouse;

(q) tools used for maintenance or repair of the dwellinghouse or of household articles.

(3) The Lord Advocate may by regulations add to the list set out in sub-paragraph (2) above, or delete or vary any of the items contained in that list.

(4) If, on an application made within 14 days after the date of the execution of the poinding—

(a) by the debtor or any person who owns a poinded article in common with the debtor; or

(b) by any person in possession of a poinded article,

the sheriff is satisfied that the article is exempt from poinding under this paragraph, he shall make an order releasing the article from the poinding.

Restrictions on time when poinding may be executed S

2 (1) No poinding shall be executed on Sunday, Christmas Day, New Year’s Day, Good Friday or such other day as may be prescribed by Act of Sederunt. S

(2) The execution of a poinding shall not—

(a) be commenced before 8 a.m. or after 8 p.m.; or

(b) be continued after 8 p.m.,

unless the sheriff officer has obtained prior authority from the sheriff for such commencement or continuation; and any rule of law which prohibits poindings outwith the hours of daylight shall cease to have effect.

Power of entry for execution of poinding S

3 (1) Subject to sub-paragraph (2) below, notwithstanding any warrant authorising him to open shut and lockfast places, a sheriff officer shall not enter a dwellinghouse to execute a poinding if, at the time of his intended entry, there appears to him to be nobody, or only children under the age of 16 years, present there unless, at least 4 days before the date of his intended entry, he has served notice on the debtor specifying that date. S

(2) If it appears to the sheriff, on an application made to him by the sheriff officer (which shall not require to be intimated to the debtor), that the requirement of service under this paragraph would be likely to prejudice the execution of the poinding he may dispense with such service.

Value of articles which may be poinded and presumption as to ownership S

4 (1) The sheriff officer shall be entitled to poind articles only to the extent necessary to ensure that the sum recoverable and the likely expenses chargeable against the debtor under paragraphs 25 to 34 below would be realised if they were sold at the value fixed under paragraph 5(4) below. S

(2) In executing a poinding, a sheriff officer shall be entitled to proceed on the assumption that any article in the possession of the debtor is owned by him unless the sheriff officer knows or ought to know that the contrary is the case.

(3) The sheriff officer shall not be precluded from relying on the assumption mentioned in sub-paragraph (2) above by reason only of one or both of the following circumstances—

(a) that the article belongs to a class which is commonly held under a hire, hire-purchase or conditional sale agreement or on some other limited title of possession;

(b) that an assertion has been made that the article is not owned by the debtor.

Poinding procedure S

5 (1) The procedure in a poinding shall be in accordance with this paragraph and paragraph 6 below. S

(2) Before executing the poinding, the sheriff officer shall—

(a) exhibit to any person present the summary warrant or, if the warrant does not identify the debtor, a certified copy of the warrant together with a statement certified by the creditor that the summary warrant applies to the debtor;

(b) demand payment of the sum recoverable from the debtor, if he is present, or any person present appearing to the sheriff officer to be authorised to act for the debtor; and

(c) make enquiry of any person present as to the ownership of the articles proposed to be poinded, and in particular whether there are any persons who own any articles in common with the debtor.

(3) The sheriff officer shall be accompanied at the poinding by one witness.

(4) The poinded articles shall be valued by the sheriff officer according to the price which they would be likely to fetch if sold on the open market unless he considers that the articles are such that a valuation by a professional valuer or other suitably skilled person is advisable, in which case he may arrange for such a valuation.

(5) The sheriff officer shall prepare a schedule (referred to in this Schedule as “the poinding schedule”), in the form prescribed by Act of Sederunt, which shall specify—

(a) the identity of the creditor and of the debtor;

(b) the articles poinded, and their respective values;

(c) the sum recoverable; and

(d) the place where the poinding was executed.

(6) On completion of the valuation the sheriff officer shall—

(a) along with the witness sign the poinding schedule;

(b) deliver the poinding schedule to any person in possession of the articles or—

(i) where the poinding was executed in a dwellinghouse or other premises, leave it in the premises; or

(ii) in any other case, deliver it to premises occupied by that person;

(c) if the person in possession of the articles is not the debtor and it is reasonably practicable, serve a copy of it by post on the debtor;

(d) inform the debtor (if present) of his right to redeem poinded articles under paragraph 6(4) below;

(e) inform any person present who owns any poinded article in common with the debtor of his right to redeem poinded articles under paragraph 22(2) and (3) below; and

(f) inform the debtor (if present) and any person present who owns any poinded article in common with the debtor, or who is in possession of any poinded article, of his right to apply for an order releasing articles from poinding under paragraph 1(4) above or paragraph 7(1) or 22(3)(b) below.

(7) The sheriff officer shall leave poinded articles at the place where they were poinded, except that where that place is not a dwellinghouse or other premises, if he considers it necessary for their security or the preservation of their value and there is insufficient time to obtain an order under paragraph 6(1)(a) below, he shall remove them at the creditor’s expense—

(a) to the nearest convenient premises belonging to the debtor or to the person in possession of the articles; or

(b) if no such premises are available, to the nearest suitable secure premises.

6 (1) The sheriff, on an application by the creditor, the sheriff officer or the debtor intimated in accordance with sub-paragraph (2) below, may at any time after the execution of a poinding make an order— S

(a) for the security of any of the poinded articles; or

(b) in relation to any of the articles which are of a perishable nature or which are likely to deteriorate substantially and rapidly in condition or value, for their immediate disposal and, in the event of their disposal by sale, for payment of the proceeds of sale to the creditor or for consignation of the proceeds in court until the diligence is completed or otherwise ceases to have effect,

and a decision of the sheriff under paragraph (b) above for the immediate disposal of articles shall not be subject to appeal.

(2) An application for an order under sub-paragraph (1)(b) above—

(a) by the creditor or the sheriff officer, shall be intimated by him to the debtor;

(b) by the debtor, shall be intimated to the creditor or the officer of court,

at the time when it is made.

(3) It shall not be competent for a sheriff officer in executing a poinding to examine a person on oath as to the ownership of any article.

(4) Subject to sub-paragraph (1)(b) above, the debtor shall be entitled, within 14 days after the date of execution of the poinding, to redeem any poinded article at the value fixed under paragraph 5(4) above.

(5) The sheriff officer shall, on receiving payment from the debtor for the redemption under sub-paragraph (4) above of a poinded article, grant a receipt in the form prescribed by Act of Sederunt to the debtor; and the receipt shall operate as a release of the article from the poinding.

(6) Subject to paragraph 13(2)(b) below, the revaluation in the same poinding of an article which has been valued under paragraph 5(4) above shall not be competent.

(7) A poinding shall be deemed to have been executed on the date when the poinding schedule has been delivered, or left on the premises, in pursuance of paragraph 5(6)(b) above.

(8) At any time before the execution of a poinding on behalf of a creditor, a sheriff officer shall, if requested to do so by any other creditor who has exhibited to him a summary warrant authorising the poinding of articles belonging to the debtor, conjoin that creditor in the poinding.

Release of poinded article on ground of undue harshness S

7 (1) The sheriff may, on an application made within 14 days after the date of execution of a poinding by the debtor or any person in possession of a poinded article, make an order releasing an article from the poinding if it appears to the sheriff that its continued inclusion in the poinding or its sale under the summary warrant would be unduly harsh in the circumstances. S

(2) Where the sheriff has made an order under subsection (1) above he may, notwithstanding paragraph 9 below, on an application by the creditor or by a sheriff officer on his behalf, authorise the poinding of other articles belonging to the debtor on the same premises.

Invalidity, cessation and recall of poinding S

8 (1) If, at any time before the sale of the poinded articles, the sheriff is satisfied that the poinding is invalid or has ceased to have effect he shall, on his own initiative or on an application by the debtor, make an order declaring the poinding to be void, and may make such consequential order as appears to him to be necessary in the circumstances. S

(2) Without prejudice to paragraph 1(4) above, it shall not be competent for the sheriff to make an order under sub-paragraph (1) above on the ground that any poinded article is exempt from poinding under that paragraph.

(3) At any time before intimation is given to the debtor under paragraph 16 below of the date arranged for the removal of the poinded articles for sale or, if the articles are to be sold in the premises where they are situated, the date arranged for the sale, the sheriff may, on an application by the debtor, recall a poinding on any of the following grounds—

(a) that it would be unduly harsh in the circumstances for the poinded articles to be sold under the summary warrant;

(b) that the aggregate of the values of the poinded articles fixed under paragraph 5(4) above was substantially below the aggregate of the prices which they would have been likely to fetch if sold on the open market; or

(c) that the likely aggregate proceeds of sale of the poinded articles would not exceed the expenses likely to be incurred in the taking of further steps in the diligence, on the assumption that such steps are unopposed.

(4) The sheriff shall not grant an application on the ground mentioned in sub-paragraph (3)(c) above if an order for further poinding of articles belonging to the debtor has been authorised under paragraph 7(2) above or paragraphs 12(6) or 13(2) below, or has become competent by reason of paragraph 12(2), 21(4) or 22(5) below.

(5) The sheriff shall not make an order under sub-paragraph (1) above, recall a poinding or refuse an application under this paragraph without first giving the debtor and the creditor—

(a) an opportunity to make representations; and

(b) if either party wishes to be heard, an opportunity to be heard.

(6) The sheriff clerk shall intimate to the debtor any order made under sub-paragraph (1) above by the sheriff on his own initiative.

Second poinding in same premises S

9 S Subject to paragraph 7(2) above and paragraphs 12(2) and (6), 13(2), 21(4) and 22(5) below, where articles are poinded in any premises (whether or not the poinding is valid), another poinding in those premises to enforce the same debt shall not be competent except in relation to articles which have been brought on to the premises since the execution of the first poinding.

Sist of proceedings in poinding of mobile homes S

10 (1) Where a caravan, houseboat or other moveable structure which is the only or principal residence of the debtor or another person has been poinded the sheriff, on an application by the debtor or that other person made at any time after the execution of the poinding and before intimation is given to the debtor under paragraph 16 below of the date arranged for the removal of the poinded articles for sale or, if the articles are to be sold in the premises where they are situated, the date arranged for the sale, may order that for such period as he shall specify no further steps shall be taken in the poinding. S

(2) In calculating under paragraph 11(1) or (2) below the period during which a poinding in respect of which an order has been made under sub-paragraph (1) above shall remain effective, there shall be disregarded the period specified in the order.

Duration of poinding S

11 (1) Subject to sub-paragraphs (2), (3) and (5) below, a poinding shall cease to have effect on the expiry of a period of one year after the date of execution of the poinding. S

(2) The sheriff, on an application by the creditor or by a sheriff officer on his behalf made before the expiry of the period mentioned in sub-paragraph (1) above, may extend that period—

(a) where he considers that, if the said period is extended, the debtor is likely to comply with an agreement between the creditor and the debtor for the payment of the sum recoverable by instalments or otherwise; or

(b) to enable further proceedings to be taken in the diligence where the termination of the poinding would prejudice the creditor and the creditor cannot be held responsible for the circumstances giving rise to the need for the extension,

for such further period as he considers reasonable in the circumstances.

(3) The sheriff may grant further extensions under sub-paragraph (2) above, on application being made to him before the expiry of the previously extended period.

(4) The decision of the sheriff under sub-paragraph (2) above shall not be subject to appeal, and shall be intimated to the debtor by the sheriff clerk.

(5) Where, within the period mentioned in sub-paragraph (1) above or within that period as extended under sub-paragraph (2) above, an application is made under sub-paragraph (2) above, the poinding shall continue to have effect until the disposal of the application.

Removal, damage or destruction of poinded articles S

12 (1) The debtor or the person in possession of poinded articles may move them to another location if— S

(a) the creditor or a sheriff officer on behalf of the creditor has consented in writing to their removal; or

(b) the sheriff, on an application by the debtor or the person in possession, has authorised their removal.

(2) Where poinded articles have been removed under sub-paragraph (1) above, a sheriff officer may, under the same warrant to poind, again poind any of the articles so removed and, notwithstanding paragraph 9 above, any articles which were not so removed, whether or not they were previously poinded; and, on the execution of any such further poinding, the original poinding shall be deemed to have been abandoned.

(3) The removal, except in accordance with this Schedule, from any premises of poinded articles by—

(a) the debtor; or

(b) any person, other than the creditor or a sheriff officer, who knows that the articles have been poinded,

shall be a breach of the poinding and may be dealt with as a contempt of court.

(4) Where articles have been removed from premises otherwise than in accordance with this Schedule, the sheriff, on an application by the creditor—

(a) may, subject to sub-paragraph (5) below, make an order requiring the person in possession of the articles to restore them to the premises from which they were removed within a period specified in the order; and

(b) if an order under paragraph (a) above is not complied with, and it appears to the sheriff that the articles are likely to be found in premises specified in the application, may grant a warrant to sheriff officers—

(i) to search for the articles in those premises; and

(ii) to restore the articles to the premises from which they were removed or to make such other arrangements for their security as the sheriff may direct,

and such a warrant shall be authority to open shut and lockfast places for the purpose of its execution.

(5) Where it appears to the sheriff, on an application made to him by any person having an interest, that any article which has been removed from premises otherwise than in accordance with this Schedule has been acquired for value and without knowledge of the poinding, he shall—

(a) refuse an order under sub-paragraph (4)(a) above relating to that article;

(b) recall any such order which he has already made; and

(c) make an order releasing the article from the poinding.

(6) Where articles have been removed from premises otherwise than in accordance with this Schedule in circumstances in which the debtor is at fault the sheriff, on an application by the creditor or by a sheriff officer on his behalf, may, notwithstanding paragraph 9 above, authorise the poinding of other articles belonging to the debtor in the same premises.

(7) The removal of poinded articles to another location shall not have the effect of releasing the articles from the poinding.

13 (1) The wilful damage or destruction of poinded articles by— S

(a) the debtor; or

(b) any person, other than the creditor or a sheriff officer, who knows that the articles have been poinded,

shall be a breach of the poinding and may be dealt with as a contempt of court.

(2) Where poinded articles have been damaged or destroyed the sheriff, on an application by the creditor or by the sheriff officer on his behalf, may—

(a) where the debtor has been at fault, authorise the poinding of other articles belonging to the debtor in the premises in which the original poinding took place; and

(b) in any case, authorise the revaluation of any damaged article in accordance with paragraph 5(4) above.

(3) Where a third party, knowing that an article has been poinded—

(a) wilfully damages or destroys it; or

(b) removes it from premises in breach of a poinding, and—

(i) it is damaged, destroyed, lost or stolen; or

(ii) it is acquired from or through him by another person without knowledge of the poinding and for value,

the sheriff may order the third party to consign the sum mentioned in sub-paragraph (4) below in court until the completion of the sale or until the poinding otherwise ceases to have effect.

(4) The sum to be consigned in court under sub-paragraph (3) above shall be—

(a) where the article has been damaged but not so damaged as to make it worthless, a sum equal to the difference between the value of the article fixed under paragraph 5(4) above and the value of the article as so damaged;

(b) in any other case, a sum equal to the value fixed under that paragraph.

(5) Any sum consigned in court under sub-paragraph (3) above shall, on the completion of the sale or on the poinding otherwise ceasing to have effect, be paid to the creditor to the extent necessary to meet the sum recoverable, any surplus thereof being paid to the debtor.

Arrangements for sale S

14 (1) A sale in pursuance of a summary warrant shall be by public auction. S

(2) A sale in pursuance of a summary warrant shall not be held in a dwellinghouse except with the consent in writing, in a form to be prescribed by Act of Sederunt, of the occupier thereof and, if he is not the occupier, of the debtor.

(3) Subject to sub-paragraph (4) below, the sale shall not be held in premises (other than a dwellinghouse or an auction room) which are occupied by a person other than the debtor or the creditor except with the consent in writing, in a form to be prescribed by Act of Sederunt, of the occupier thereof.

(4) Where the occupier of premises (other than a dwellinghouse or an auction room) where poinded articles are situated does not give his consent under sub-paragraph (3) above to the holding of the sale in those premises, the sheriff may, if on an application by the creditor or the sheriff officer he considers that it would be unduly costly to require the removal of the poinded articles to other premises for sale, nevertheless order that the sale shall be held in the premises where they are situated.

(5) The decision of the sheriff under sub-paragraph (4) above shall not be subject to appeal.

(6) In this paragraph “occupier”, in relation to premises where there are 2 or more occupiers, means each of them.

Release or redemption of poinded articles S

15 (1) Where a sale of poinded articles is to be held in premises other than where the poinded articles are situated, the sheriff officer may remove to those premises only such poinded articles as, if sold at their values fixed under paragraph 5(4) above, would realise in total the sum recoverable and the likely expenses chargeable against the debtor under paragraphs 25 to 34 below; and shall release the remaining poinded articles from the poinding. S

(2) Subject to paragraph 6(1) above, the debtor may, within 7 days after the date when intimation is given to him under paragraph 16 below of the date arranged for the removal of the poinded articles for sale or, if the articles are to be sold in the premises where they are situated, the date arranged for the sale, redeem any poinded article by paying to the officer of court a sum equal to its value fixed under paragraph 5(4) above.

(3) The sheriff officer shall, on receiving payment from the debtor under sub-paragraph (2) above, grant a receipt in the form prescribed by Act of Sederunt to the debtor; and the receipt shall operate as a release of the article from the poinding.

(4) The creditor and the debtor may by agreement release articles from the poinding.

Intimation and publication of sale S

16 (1) The sheriff officer who makes arrangements for the sale of the poinded articles shall— S

(a) as soon as is reasonably practicable intimate to the debtor and, if the person in possession of the poinded articles is not the debtor, to that person, the date and place arranged for the sale; and

(b) where the sale is not to be held in the premises where the poinded articles are situated, intimate to the debtor and, if he is not the debtor, to the person in possession of the poinded articles, not less than 14 days before the date arranged for the removal of the poinded articles from those premises, the date arranged for the removal.

(2) The sheriff officer shall, at the same time as he intimates the date arranged for the sale under sub-paragraph (1) above, send such particulars of the arrangements for the sale as are prescribed by Act of Sederunt to the sheriff clerk of the sheriff court within whose jurisdiction the articles were poinded; and the sheriff clerk shall arrange for those particulars to be displayed on the walls of court.

(3) The sale shall be advertised by public notice.

(4) Where the sale is to be held in premises not belonging to the debtor, the public notice under sub-paragraph (3) above shall not name him or disclose that the articles for sale are poinded articles.

(5) Where the sale is to be held in premises other than the debtor’s premises or an auction room, any public notice of the sale shall state that the articles to be sold do not belong to the occupier of the premises where the sale is to be held.

Alteration of arrangements for sale S

17 (1) Subject to sub-paragraph (2) below and without prejudice to sub-paragraph (5) below, after intimation has been given under paragraph 16(1) above to the debtor of the date arranged for the sale or for the removal for sale of the poinded articles from the premises where they are situated, the creditor or sheriff officer shall not be entitled to arrange a new date for the sale or for such removal. S

(2) Where, for any reason for which neither the creditor nor the sheriff officer is responsible, it is not possible for the sale or, as the case may be, the removal for sale of the poinded articles from the premises where they are situated, to take place on the date arranged for it, the creditor may instruct the sheriff officer to arrange a new date in accordance with sub-paragraph (3) below, and the sheriff officer shall intimate the new date to the debtor and to any other person in possession of the poinded articles.

(3) The new date arranged under sub-paragraph (2) above shall not be less than 7 days after the date of intimation under that sub-paragraph.

(4) Without prejudice to sub-paragraph (2) above, in order to enable the sum recoverable to be paid by instalments or otherwise in accordance with an agreement between the creditor and the debtor, the creditor may, after intimation has been given under paragraph 16 above of the date arranged for the sale, cancel the arrangements for the sale on not more than 2 occasions.

(5) Where, following cancellation of the sale in pursuance of sub-paragraph (4) above, the debtor is in breach of the agreement, the creditor may instruct the sheriff officer to make arrangements for the sale of the poinded articles at any time while they remain poinded.

The sale S

18 (1) In the sale there shall be no reserve price unless the creditor chooses to have one and, if he does so choose, it shall not exceed the value of the article fixed under paragraph 5(4) above. S

(2) The value of a poinded article fixed under paragraph 5(4) above and the reserve price, if any, fixed by the creditor under sub-paragraph (1) above need not be disclosed to any person bidding for the article.

(3) In the sale any poinded article exposed for sale may be purchased by—

(a) any creditor, including the creditor on whose behalf the poinding was executed; or

(b) a person who owns the article in common with the debtor.

(4) Subject to sub-paragraph (5) below and without prejudice to the rights of any third party, where the sum recoverable has not been realised by the sale, ownership of a poinded article which remains unsold after being exposed for sale shall pass to the creditor.

(5) Without prejudice to the rights of any third party, where the sale is held in premises belonging to the debtor, the ownership of a poinded article which has passed to the creditor under sub-paragraph (4) above shall revert to the debtor unless the creditor uplifts the article by 8 p.m. (or such other time as may be prescribed by Act of Sederunt)—

(a) if the premises are a dwellinghouse in which the debtor is residing, on the day when the sale is completed;

(b) in any other case, on the third working day following that day,

and the sheriff officer may remain on or re-enter any premises (whether open, shut or lockfast) for the purpose of enabling the creditor to uplift any such article.

(6) For the purposes of sub-paragraph (5) above “working day” means a day which is not—

• Saturday;

• Sunday;

• 1st or 2nd January;

• Good Friday;

• Easter Monday;

• 25th or 26th December;

• a public holiday in the area in which the premises are situated.

(7) Subject to sub-paragraph (8) below, where at the sale any article is unsold or is sold at a price below the value fixed under paragraph 5(4) above, the debtor shall be credited with an amount equal to that valuation.

(8) Where—

(a) any damaged article has been revalued under paragraph 5(4) above on the authority of the sheriff given under pargraph 13(2) above;

(b) the damage was not caused by the fault of the debtor; and

(c) no order has been made under paragraph 13(3) above requiring a third party to consign a sum in respect of the article, or such an order has been made but has not been complied with,

the amount credited to the debtor under sub-paragraph (7) above shall be an amount equal to the original valuation and not the revaluation referred to in paragraph (a) above.

Disposal of proceeds of sale S

19 S The sheriff officer who arranges the sale shall dispose of the proceeds of the sale—

(a) by paying to the creditor the proceeds so far as necessary to meet the sum recoverable (subject to any agreement between the sheriff officer and the creditor relating to the fees or outlays of the officer of court); and

(b) by paying to the debtor any surplus remaining after the sum recoverable has been paid or, if the debtor cannot be found, by consigning such surplus in court.

Report of sale S

20 (1) The sheriff officer who arranged the sale shall within a period of 14 days after the date of completion of the sale send to the creditor a report of the sale in the form prescribed by Act of Sederunt setting out— S

(a) any articles which have been sold and the amount for which they have been sold;

(b) any articles which remain unsold;

(c) the expenses of the diligence chargeable against the debtor;

(d) any surplus paid to the debtor; and

(e) any balance due by or to the debtor;

and the sheriff officer shall, within the same period, send a copy of the report to the debtor.

(2) The report of sale shall be signed by the sheriff officer.

(3) The creditor and the debtor may have the report of sale taxed by the auditor of court of the sheriff court within whose jurisdiction the articles were poinded.

Articles belonging to third parties or in common ownership S

21 (1) A sheriff officer may, at any time after the execution of a poinding and before the sale of the poinded articles, release an article from the poinding if— S

(a) he is satisfied that the article belongs to a third party; and

(b) the debtor or other person in possession of the article does not deny that it belongs to the third party.

(2) Where, on an application made to him by a third party, at any time after the execution of a poinding and before the sale of the poinded articles, the sheriff is satisfied that a poinded article belongs to that third party, he shall make an order releasing it from the poinding.

(3) The making of an application under sub-paragraph (2) above shall not prejudice the taking of any other proceedings by the third party for the recovery of a poinded article belonging to him, and an order of the sheriff under that sub-paragraph shall not be binding in any other proceedings.

(4) Where an article has been released from a poinding under this paragraph, a sheriff officer may, notwithstanding paragraph 9 above, poind other articles belonging to the debtor in the same premises.

22 (1) Articles which are owned in common by a debtor and a third party may be poinded and disposed of in accordance with this Schedule in satisfaction of the debts of that debtor. S

(2) Where, at any time after the execution of a poinding and before the sale of the poinded articles, a third party—

(a) claims that a poinded article is owned in common by the debtor and himself; and

(b) pays to the sheriff officer a sum equal to the value of the debtor’s interest in the article,

the sheriff officer may, unless the debtor (or the person in possession of the article, if not the debtor) denies the claim, release the article from the poinding.

(3) If, on an application made by a third party, at any time after the execution of a poinding and before the sale of the poinded articles, the sheriff is satisfied that a poinded article is owned in common by the debtor and that third party and either—

(a) the third party undertakes to pay to the sheriff officer a sum equal to the value of the debtor’s interest in the article; or

(b) the sheriff is satisfied that the continued poinding of that article or its sale under summary warrant would be unduly harsh to the third party in the circumstances,

he shall make an order releasing the article from the poinding.

(4) A release under sub-paragraph (2) above or where sub-paragraph (3)(a) above applies shall not become effective until the granting by the sheriff officer of a receipt for payment in accordance therewith, when the debtor’s interest in the released article shall be transferred to the third party.

(5) Where an article is released in pursuance of sub-paragraph (3)(b) above from a poinding, a sheriff officer may, notwithstanding paragraph 9 above, poind other articles belonging to the debtor in the same premises.

(6) This sub-paragraph applies where, at any time after the execution of a poinding, a third party claims that any of the poinded articles is owned in common by the debtor and himself but does not seek release of the article from the poinding, and either—

(a) the claim is admitted by the creditor and the debtor; or

(b) the claim is not admitted by both the creditor and the debtor, but the sheriff, on an application made to him, is satisfied that the claim is valid.

(7) Where sub-paragraph (6) above applies, the creditor shall pay to the third party—

(a) if the article is sold, the fraction of the proceeds of sale (or of the value of that article fixed under paragraph 5(4) above, whichever is the greater) which corresponds to the third party’s interest in the article;

(b) if ownership of the article passes to the creditor in default of sale, the fraction of the value of the article fixed under paragraph 5(4) above which corresponds to the third party’s interest in the article.

Certain proceedings under this Schedule to postpone further steps in the diligence S

23 (1) Where an application under any of the provisions of this Schedule listed in sub-paragraph (2) below has been made— S

(a) it shall be not be competent during a relevant period to remove the poinded articles for sale or to hold a sale;

(b) a relevant period shall be disregarded in calculating the period on the expiry of which the poinding ceases to have effect under paragraph 11 above.

(2) The provisions referred to in sub-paragraph (1) above are—

(a) paragraph 1(4), 7(1), 21(2) or 22(3) (release of poinded articles);

(b) paragraph 8(1) or (3) (invalidity, cessation or recall of poinding);

(c) paragraph 10(1) (sist of proceedings in poinding of mobile homes);

(d) paragraph 12(4) (restoration of articles removed without consent or authority);

(e) paragraph 12(5) (recall of order under paragraph 12(4)).

(3) In sub-paragraph (1) above “a relevant period” means—

(a) the period while the application is pending;

(b) where the application has been disposed of by the sheriff—

(i) the period during which an application for leave to appeal may be made;

(ii) where an application for leave to appeal is made, the period until leave has been refused or the application has been abandoned;

(iii) where leave to appeal has been granted, the period during which an appeal may be made; or

(iv) where an appeal against the decision is made, the period until the matter has been finally determined or the appeal has been abandoned.

Power to enter premises and open shut and lockfast places S

24 S A summary warrant shall contain a warrant authorising a sheriff officer to enter premises in the occupancy of the debtor in order to execute the poinding or the sale, or the removal and sale of the poinded articles and, for any of those purposes, to open shut and lockfast places.

Expenses chargeable against the debtor S

25 (1) Subject to paragraphs 26 to 29 below, there shall be chargeable against the debtor any expenses incurred— S

(a) in serving a notice under paragraph 3 above before entering a dwellinghouse for the purpose of executing a poinding;

(b) in executing a poinding under paragraph 5 above;

(c) in granting a receipt under sub-paragraph (5) of paragraph 6 above for payment for redemption under sub-paragraph (4) thereof;

(d) in granting a receipt under paragraph 15(3) above for payment for the redemption of any poinded article;

(e) in making intimation, sending particulars of the arrangements for the sale to the sheriff clerk and giving public notice under paragraph 16 above;

(f) in removing any poinded articles for sale;

(g) in making arrangements for and conducting a sale;

(h) where the arrangements for a sale have been cancelled under paragraph 17(4) above, in returning poinded articles to any premises from which they have been removed for sale;

(j) in making a report of sale under paragraph 20 above;

(k) in granting a receipt under paragraph 22(4) above for payment for the release from a poinding of any article which is owned in common;

(l) in opening shut and lockfast places in the execution of the diligence;

(m) by a solicitor in instructing a sheriff officer to take any of the steps specified in this sub-paragraph.

(2) The Lord Advocate may by regulations add to, delete or vary any of the steps specified in sub-paragraph (1) above.

26 S Where arrangements for a sale are cancelled under sub-paragraph (4) of paragraph 17 above, if new arrangements are made for the sale in the circumstances mentioned in sub-paragraph (5) thereof, there shall be chargeable against the debtor the expenses incurred in the making of the new arrangements but not in the making of the arrangements which have been cancelled.

27 S Subject to paragraph 28 below, where any such further poinding as is mentioned in paragraph 12(2) above has been executed, there shall be chargeable against the debtor the expenses incurred in that poinding but not the expenses incurred in the original poinding.

28 S Where any such further poinding as is mentioned in sub-paragraph (2) of paragraph 12 above has been executed and—

(a) the creditor has, as a condition of his consenting to the removal of the poinded articles under sub-paragraph (1)(a) of that paragraph, required the debtor to undertake liability for the expenses incurred in the original poinding; or

(b) the sheriff has, when authorising the removal of the poinded articles under sub-paragraph (1)(b) of that paragraph, directed that the debtor shall be liable for those expenses,

there shall be chargeable against the debtor the expenses incurred in both poindings.

29 S Where a new date is arranged under paragraph 17(2) above for the holding of a sale or for the removal of poinded articles for sale, there shall be chargeable against the debtor the expenses incurred in connection with arranging the new date but not those incurred in connection with arranging the original date.

Circumstances where liability for expenses is at the discretion of the sheriff S

30 S The liability for any expenses incurred by the creditor or the debtor—

(a) in an application by the creditor or a sheriff officer to the sheriff under any provision of this Schedule; or

(b) in implementing an order under—

(i) paragraph 6(1) above (order for security or immediate disposal of poinded articles); or

(ii) paragraph 12(4) to (6) or 13 above (orders dealing with unauthorised removal, damage or destruction of poinded articles),

shall be as determined by the sheriff.

Calculation of amount chargeable against debtor under the foregoing provisions S

31 S Expenses awarded by the sheriff against the debtor in favour of the creditor in a determination under paragraph 30 above in respect of an application other than an application under paragraph 12(4) to (6) or 13 above shall be calculated, whether or not the application is opposed by the debtor, as if it were unopposed, except that, if the debtor opposes the application on grounds which appear to the sheriff to be frivolous, the sheriff may award an additional sum of expenses, not exceeding £25 or such amount as may be prescribed in regulations made by the Lord Advocate, against the debtor.

Circumstances where no expenses are due to or by either party S

32 S Subject to paragraph 33 below, the debtor shall not be liable to the creditor nor the creditor to the debtor for any expenses incurred by the other party in connection with—

(a) an application by the debtor to the sheriff under any provision of this Schedule;

(b) any objections to such an application;

(c) a hearing held by virtue of paragraph 8(5) above.

33 S If—

(a) an application mentioned in paragraph 32(a) above is frivolous;

(b) such an application is opposed on frivolous grounds; or

(c) a party requires a hearing mentioned in paragraph 32(c) above to be held on frivolous grounds,

the sheriff may award a sum of expenses, not exceeding £25 or such amount as may be prescribed in regulations made by the Lord Advocate, against the party acting frivolously in favour of the other party.

Supplementary S

34 S Any expenses chargeable against the debtor by virtue of any provision of this Schedule shall be recoverable out of the proceeds of sale.

35 In this Schedule—

• “creditor” means—

(a) for the purposes of section 247 of the M1 Local Government (Scotland) Act 1947, a rating authority;

(b) for the purposes of section 63 of the M2 Taxes Management Act 1970, any collector of taxes;

(c) for the purposes of paragraph 3 of Schedule 1 to the M3 Car Tax Act 1983 and paragraph 6 of Schedule 7 to the M4 Value Added Tax Act 1983, the Commisioners of Customs and Excise;

[F1 (d) for the purposes of—

(i) paragraph 7 of Schedule 2 to the Abolition of Domestic Rates Etc. (Scotland) Act 1987, the levying authority;

(ii) that paragraph as read with section 17(10) or (11) of that Act, the regional or islands council.]

• “dwellinghouse” includes a caravan, a houseboat and any structure adapted for use as a residence;

• “the poinding schedule” means the schedule provided for in paragraph 5(5) above;

• “the sum recoverable”—

(a) for the purposes of the said section 247, includes the surcharge recoverable thereunder but excludes interest;

(b) for the purposes of the said section 63, includes interest.

Textual Amendments

F1 Para. (d) in definition of “creditor” inserted by Abolition of Domestic Rates Etc. (Scotland) Act 1987 (c. 47, SIF 81:2), s. 33(d)

Marginal Citations

M1 1947 c. 43.

M2 1970 c. 9.

M3 1983 c. 53.

M4 1983 c. 55.