New Procedures for Removings from Heritable Property
1 June 2011
Part 15 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 was brought into force on 4 April 2011. This lays down the procedures for enforcing decrees of removing from heritable property. Section 215 gives Scottish Ministers power to prescribe the procedure of removing. No regulations have been published yet and for the moment sheriff officers will proceed with ejections as they have done in the past. We will publish further information once the Regulations are brought into force by Scottish Ministers.
Section 216 brings some uniformity to the requirement to serve a charge before removing. Previously a charge of 48 hours was required in most Ordinary decrees of removing and no charge was required in Summary Cause decrees of removing. This is now standardised as a requirement for a charge of 14 days unless dispensed with or varied by the court. The charge does not specify the date of ejection and a separate notice will be required in that regard. The charge lasts for 2 years so if a removing is cancelled it can simply be re-intimated without a further charge within that 2 year period. The requirement for a 14 day charge applies only to decrees granted after 4 April 2011.
Section 216 also obliges the officer to inventory any goods removed. This appears to apply only to goods removed by the officer at the time he removes the defender and other occupants. Where the goods within the house remain in situ it does not appear there is any requirement for an inventory. It should be noted that section 218 provides that the sheriff may direct the pursuer to take such steps as the court considers appropriate for the preservation of any effects removed from the premises. At this stage we do not know what courts will do in exercising this discretionary power.
Section 217 defines the days and times when removing is not competent. In line with the rules on Attachment a removing cannot be executed on a Sunday, a public holiday in the area where the removing is to be executed or on a day appointed by Act of Sederunt. In addition removings cannot commence before 8.00 am or commence or continue after 8.00 p.m.