Act of Sederunt (Rules of the Court of Session 1994) 1994

Remit to reporter to examine property S

45.1.—(1) In an action of division and sale of heritable property, the court shall, in accordance with paragraph (2), remit to a reporter to examine the property and to report to the court–

(a) whether the property is capable of division in a manner equitable to the interests of the pro indiviso proprietors and, if so, how such division may be effected; and

(b) in the event that the property is to be sold–

(i) whether the property should be sold as a whole or in lots and, if in lots, what those lots should be;

(ii) whether the property should be exposed for sale by public roup or private bargain;

(iii) whether the sale should be subject to any upset or minimum price and, if so, the amount;

(iv) the manner and extent to which the property should be advertised for sale; and

(v) any other matter which the reporter considers pertinent to a sale of the property.

(2) A remit under paragraph (1) shall be made–

(a) where the action is undefended, on the motion of the pursuer at any time after the period for lodging defences has expired;

(b) where the action is defended–

(i) at the closing of the record, on the motion of any party to the action;

(ii) on the court finding, after a hearing on the Procedure Roll or a proof, that the pursuer is entitled to bring and insist in the action of division and sale; or

(iii) at such other time as the court thinks fit.

(3) On completion of a report made under paragraph (1), the reporter shall send the report, with a copy for each party, to the Deputy Principal Clerk.

(4) On receipt of such a report, the Deputy Principal Clerk shall–

(a) cause the report to be lodged in process; and

(b) give written intimation to each party that this has been done and that he may uplift a copy of the report from the process.

(5) After the lodging of such a report, any party may apply by motion for further procedure or for approval of the report.

(6) At the hearing of a motion under paragraph (5), the court may–

(a) in the event of challenge to any part of the report, order a note of objection to the report and answers to the note to be lodged within such period as the court thinks fit; or

(b) in the absence of such challenge, order that the property be divided or sold, as the case may be, in accordance with the recommendations of the reporter, subject to such modification, if any, as the court thinks fit.

(7) Where, in accordance with paragraph (6)(a), the lodging of a note of objection and answers has been ordered, the cause shall be put out on the By Order Roll before the Lord Ordinary after the expiry of the period for lodging the note of objection and answers; and the court may make such order for further procedure as it thinks fit.

Commencement Information

I1 Sch. 2 rule 45.1 in force at 5.9.1994, see para. 1(1)