ACCORD MORTGAGES LIMITED v. STEPHEN EDWARDS as representatve of the late MISS DONNA EDWARDS [2012] ScotSC 71 (25 June 2012)

ACCORD MORTGAGES LIMITED v. STEPHEN EDWARDS as representatve of the late MISS DONNA EDWARDS [2012] ScotSC 71 (25 June 2012)

Where the property subject to a standard security is unoccupied and not used for residential purposes at the time of enforcement, section 20(2A) of the Conveyancing and Feudal Reform (Scotland) Act 1970 does not apply, and the creditor may proceed by ordinary action for declarator without complying with pre-action requirements.

Citation
[2012] ScotSC 71
Parties
Pursuer: Accord Mortgages Limited; Defender: Stephen Edwards as representative of the late Miss Donna Edwards
Jurisdiction
Scotland
Judgment Date
25 June 2012
Procedural Posture
Ordinary Action (declarator) / Preliminary Determination Before Issue of Warrant
Outcome
Action to proceed as ordinary action for declarator; pre-action requirements do not apply.
Legal Topics
Standard Security Enforcement, Residential Property, Pre Action Requirements, Conveyancing and Feudal Reform (scotland) Act 1970
Property Law Civil Procedure Standard Security Enforcement Residential Property Pre Action Requirements Conveyancing and Feudal Reform (scotland) Act 1970

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Parties

Accord Mortgages Limited

Pursuer

Stephen Edwards as representative of the late Miss Donna Edwards

Defender

Procedural Posture

Ordinary Action (declarator) / Preliminary Determination Before Issue of Warrant

Legal Issues

  1. 1 Whether the property is 'used to any extent for residential purposes' at the time of enforcement under the Conveyancing and Feudal Reform (Scotland) Act 1970
  2. 2 Whether pre-action requirements under section 24A apply when the property is unoccupied and the debtor is deceased
  3. 3 Whether the action should proceed as an ordinary action or by summary application

Ratio Decidendi

Where the property subject to a standard security is unoccupied and not used for residential purposes at the time of enforcement, section 20(2A) of the Conveyancing and Feudal Reform (Scotland) Act 1970 does not apply, and the creditor may proceed by ordinary action for declarator without complying with pre-action requirements.

Court Disposition

Action to proceed as ordinary action for declarator; pre-action requirements do not apply.

Orders

  • Action to proceed as ordinary action; no requirement to comply with pre-action requirements.