Sheriff Court case in which Northern Rock sought declarator that Mr Fowlie was in default and that it was entitled to sell[1] a property subject to a standard security without following the procedure set out in s24(1B) of the Conveyancing and Feudal Reform (Scotland) Act 1970 as the property was unoccupied.

In granting the declarator,Sheriff Mann agreed with the decision of Sheriff Braid in Accord Mortgages Limited v Edwards  in which it was noted that s24 applies only where the subjects are being used for residential purposes and found that, where the subjects are unoccupied, they cannot be said to be being used for residential purposes.

In this case, Northern Rock had lodged both a Field Agent Report and Sheriff Officer Report which concluded that the property in question was unoccupied. Sheriff Mann observed that, as s24 requires the service of notice on the debtor of their right to make representations to the court, if the notice were not served, then a debtor may choose not to oppose an action in ignorance of that right.  As a result, the Sheriff concluded that creditors should not be allowed to raise proceedings by way of declarator by ordinary cause unless they are in a position to demonstrate that, prima facie, the subjects are unoccupied. Here, the Field Agent Report and Sheriff Officer Report had been an appropriate way for the creditor to show this.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.