Sheriff Courts (Scotland) Act 1907

Valid from 08/12/2005

PART X S ACTIONS RELATING TO OCCUPANCY RIGHTS AND TENANCIES

Application of this Part S

33A.58. This Part applies to an action or application for an order under Chapter 3 or Chapter 4 of Part 3 or section 127 of the Act of 2004.

Interpretation of this Part S

33A.59. Unless the context otherwise requires, words and expressions used in this Part which are also used in Chapter 3 or Chapter 4 of Part 3 of the Act of 2004 have the same meaning as in Chapter 3 or Chapter 4, as the case may be.

Form of application S

33A.60. (1) Subject to any other provision in this Chapter, an application for an order under this Part shall be made–

(a) by an action for such an order;

(b) by a crave in the initial writ or defences, as the case may be, in any other civil partnership action;

(c) where the application is made by a person other than a party to any action mentioned in paragraph (a) or (b), by minute in that action.

(2) An application under section 107(1) (dispensation with civil partner's consent to dealing) or section 127 (application in relation to attachment) of the Act of 2004 shall, unless made in a depending civil partnership action, be made by summary application.

Defenders S

33A.61. The applicant for an order under this Part shall call as a defender–

(a) where he is seeking an order as a civil partner, the other civil partner; and

(b) where he is a third party making an application under section 107(1) (dispensation with civil partner's consent to dealing), or 108(1) (payment from non-entitled civil partner in respect of loan) of the Act of 2004, both civil partners.

Applications by motion S

33A.62. (1) An application under any of the following provisions of the Act of 2004 shall be made by motion in the process of the depending action to which the application relates:–

(a) section 103(4) (interim order for regulation of rights of occupancy, etc.);

(b) section 104(6) (interim order suspending occupancy rights);

(c) section 107(1) (dispensation with civil partner's consent to dealing); and

(d) section 114(1) (order attaching power of arrest), if made after application for relevant interdict.

(2) Intimation of a motion under paragraph (1) shall be given–

(a) to the other civil partner;

(b) where the motion is under paragraph (1)(a) or (b) and the entitled civil partner is a tenant or occupies the family home by the permission of a third party, to the landlord or third party, as the case may be; and

(c) to any other person to whom intimation of the application was or is to be made by virtue of rule 33A.7(1)(i) (warrant for intimation to certain persons in actions for orders under Chapter 3 of Part 3 of the Act of 2004) or rule 33A.15 (order for intimation by sheriff).

Applications by minute S

33A.63. (1) An application for an order under section 105 of the Act of 2004 (variation and recall of orders made under section 103 or section 104 of the Act of 2004) shall be made by minute.

(2) A minute under paragraph (1) shall be intimated–

(a) to the other civil partner;

(b) where the entitled civil partner is a tenant or occupies the family home by the permission of a third party, to the landlord or third party, as the case may be; and

(c) to any other person to whom intimation of the application was or is to be made by virtue of rule 33A.7(1)(i) (warrant for intimation to certain persons in actions for orders under Chapter 3 of Part 3 of the Act of 2004) or rule 33A.15 (order for intimation by sheriff).

Sist of actions to enforce occupancy rights S

33A.64. Unless the sheriff otherwise directs, the sist of an action by virtue of section 107(4) of the Act of 2004 (where action raised by non entitled civil partner to enforce occupancy rights) shall apply only to such part of the action as relates to the enforcement of occupancy rights by a non entitled civil partner.

Certificates of delivery of documents to chief constable S

33A.65. (1) Where an applicant is required to comply with section 114(5) or (6), as the case may be, of the Act of 2004 (delivery of documents to chief constable where power of arrest attached to relevant interdict is granted, varied or recalled), he shall, after such compliance, lodge in process a certificate of delivery in Form CP28.

(2) Where a relevant interdict to which a power of arrest under section 114(1) of the Act of 2004 has been attached ceases to have effect by reason of a decree of dissolution of civil partnership being pronounced by the sheriff, the pursuer shall send–

(a) to the chief constable of the police area in which the family home is situated; and

(b) if the applicant civil partner (within the meaning of section 114(7) of the Act of 2004) resides in another police area, to the chief constable of that other police area,

a copy of the interlocutor granting decree and lodge in process a certificate of delivery in Form CP28.