Reforming mortgage law in Scotland

In 2018 the Scottish Law Commission commenced a project on heritable securities. The Commission is Scotland's law reform body and is responsible for advising government on simplifying, modernising and improving Scottish law.

?Heritable securities? is the technical term for mortgages over land and buildings. It is only possible to grant a heritable security by means of a standard security.

Background

The law in this area was last systematically reformed by the Conveyancing and Feudal Reform (Scotland) Act 1970. That legislation is now showing its age, and it has been made more complex by subsequent amendments, notably by the Home Owner and Debtor Protection (Scotland) Act 2010. Court decisions have exposed inadequacies and uncertainties, and the time has now come for a wholesale review of the legislation.

What will be included in the review

The review will focus on standard securities, as regulated by the 1970 Act. It will look at how they are created, varied, transferred and extinguished. Importantly, it will also examine how they are enforced both in residential and commercial contexts. The Commission will consider the law in other jurisdictions, including England and Wales, to see what lessons can be learned with the aim of improving Scottish law.

What will not be included

The regulatory aspects of mortgages under both EU law and UK legislation, such as the Consumer Credit Act 1974, are outside of the review's scope. So too is the law of debt (for example, how much interest can be charged on a debt).

Timeline

The Commission intends to publish two discussion papers for consultation. The first on pre-default matters is due in summer 2019. The second, dealing with enforcement, is scheduled for the end of 2020. A final report with draft legislation is expected in 2022.

We are keen to have as much input as possible from stakeholders with a view to making Scottish law world-leading.

 

 

Dr Andrew Steven wil be appearing and speaking on the topic of Reform of Security Over Land at the upcoming UK Finance Mortgage Market in Scotland Seminar. Click here to view the agenda for this event.

Area of expertise:

The Mortgage Market in Scotland Seminar

The seminar will explore the challenges and opportunities in the developing landscape of the Scottish housing and mortgage markets in 2019. The agenda is taking shape with topics covering regulatory interventions in the mortgage market; private housebuilding; private renting; and the current heritable securities (mortgages) project.

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