The Civil Legal Aid (Scotland) Regulations 1987

Right of Board to security over heritable property

40.—(1) Where–

(a)any sum remains unpaid in respect of an assisted person’s contribution to the Fund, or there is a deficiency by reason of his total contribution being less than the net liability of the Fund on his account; and

(b)any property recovered or preserved for the assisted person in consequence of a decision in proceedings to which he is a party, or of a settlement to avoid or bring to an end such proceedings, comprises an interest in land (as defined in section 9(8) of the Conveyancing and Feudal Reform (Scotland) Act 1970(1)),

the Board may make in its favour and record in the General Register of Sasines or, as appropriate, register in accordance with the Land Registration (Scotland) Act 1979(2), a charging order over that interest in land, or over any other interest in land subsequently acquired by the assisted person in substitution therefor, in respect of the amount of the sum remaining unpaid or, as the case may be, of the deficiency.

(2) On being so recorded, or, as the case may be, registered, a charging order over an interest in land shall create a right which shall be deemed to have been granted by the assisted person in favour of the Board over that interest for the purpose of securing the sum, or, as the case may be, the deficiency, referred to in paragraph (1)(a) above, together with interest thereon as specified in regulation 41 below; and the Board shall intimate to the assisted person in writing that it has made and recorded or registered the charging order and inform him of its effect.

(3) Where the charging order is over an interest in land in which the debtor is uninfeft, it shall be as valid as if he was infeft in that interest.

(4) Charging orders and the discharge thereof shall be in, or as near as may be in, accordance with Forms 1 and 2 in Schedule 4 to these Regulations.

(5) The provisions of Part II of the said Act of 1970, other than sections 9(1) and (2), 12 and 14, shall apply to a charging order under this regulation as if it were a standard security in a form prescribed in Schedule 2 to the said Act of 1970, and as if for the forms referred to in sections 9(2) and 17 of that Act there were substituted the forms set out in Schedule 4 to these Regulations.