Charging Order (Building (Scotland) Act 2003) - Example Deeds

General

A charging order is registrable by virtue of section 46A of the Building (Scotland) Act 2003.

A charging order under section 46A must be in the statutory form prescribed. The form is prescribed by The Building (Scotland) Act 2003 (Charging Orders) Regulations 2014 and is set out in Examples below. A discharge can be registered as appropriate and the style to be used (also prescribed by the 2014 Regulations) is set out below. The notes for guidance of the local authority are also included for further information.

Such charging orders can be used by Scottish local authorities where they have incurred what the 2003 Act deems to be qualifying expenses in relation to remediating non-compliance with building regulations or defective or dangerous buildings. The effect of registration of a valid order is both to create the charge and to make it enforceable at the instance of the local authority against the owner of the charged building in terms of section 46E(3) and (4) of the 2003 Act. In terms of section 46F(1) and (2) of the 2003 Act, it may also affect a new owner of a property if it was registered at least 14 days before the date on which the new owner acquired right to the building in question. If this is the case, the new owner becomes severally liable with the former owner for the amount repayable. Being severally liable means that the local authority can seek to recover the whole repayable amount from either the old or the new owner.

The entry for a charging order is made in the securities section of the relevant title sheet.

Useful links

Charging Order (Repayment Charge) - Example Deeds

Charging Order (HASSASSAA) - Example Deeds

Repayment Charge (Registered Social Landlords) - Example Deeds

Examples

The numbers in brackets relate to the notes for guidance.

THE BUILDING (SCOTLAND) ACT 2003
CHARGING ORDER

We (1)………………………………………………………….., in exercise of the power conferred by section 46A of the Building (Scotland) Act 2003, CHARGE the building described in the schedule with the repayable amount of (2)……………………….sterling, payable in (3) …………… annual instalments of (4)…………..………, the first instalment being payable on (5)……………………in 20……. and subsequent instalments on the same date in every succeeding calendar year.

In the event of default of payment of an annual instalment, the instalment together with any amount recoverable in respect of that instalment under section 46C(2)(a) or (b) of the Building (Scotland) Act 2003 is separately recoverable as a debt.

If immediately after the final instalment falls due any balance of the repayable amount remains unpaid, that balance is immediately due for repayment and is recoverable as a debt.

Signed

Date

SCHEDULE
DESCRIPTION OF BUILDING (6)

Notes for guidance

1 Insert the name and address of the local authority.
2 Insert in words the repayment amount.
3 Insert in words the number of annual instalments, being no fewer than 5 and no more than 30.
4 Insert the amount of the annual instalment.
5 Insert a date after the making of the charge for the first instalment to be paid.
6 Insert a full description of the subjects by reference to the postal address and, as appropriate, either
(a) a competent conveyancing description to enable recording in the General Register of Sasines, or
(b) the registered title number to enable registration in the Land Register.

Example 1 - Charging Order by Fife Council, incorporated under the the Local Government etc. (Scotland) Act 1994, (designed) in exercise of powers conferred by section 46A of the Building (Scotland) Act 2003, charging the subjects in this title with a payment of an annuity of £ xxxx the first instalment being payable by xxxx and subsequent instalments on the same date in every succeeding calendar year.

Example 2 - Charging Order by Fife Council, incorporated under the the Local Government etc. (Scotland) Act 1994, (designed) in exercise of powers conferred by section 46A of the Building (Scotland) Act 2003, charging the subjects in this title with a payment of an annuity of £ xxxx payable in every year for xxxx years commencing xxxx.

The numbers in brackets relate to the notes for guidance.

THE BUILDING (SCOTLAND) ACT 2003
DISCHARGE OF CHARGING ORDER

We (1)………………………………………………………….., DISCHARGE the Charging Order made by us on (2)…………………… over (3)…………………… and [either] (4) registered in the Land Register under Title Number (5)……… on (6)………………….. [or] (4) recorded in the Division of the General Register of Sasines for the County of (7)…………………… on (8)…………………….

Signed

Date

Notes for guidance

1 Insert the name and address of the local authority.
2 Insert the date on which the original Charging Order was made.
3 Insert postal address of the building.
4 Delete as appropriate.
5 Insert Title Number in Land Register.
6 Insert date of registration of Charging Order.
7 Insert name of County in the General Register of Sasines.
8 Insert date of recording of Charging Order in the General Register of Sasines.

Guidance

If the charging order submitted does not appear to conform closely to the statutory style requirements, the application should be referred for rejection on the basis that the registrable deed is not valid because it does not conform to the prescribed form.