No 2010 Act protection for corporate homeowner

Since the Supreme Court case of RBS v Wilson several years ago, we know that to call up a security successfully, the creditor must serve a calling-up notice under s 19 of the Conveyancing and Feudal Reform (Scotland) Act 1970. And, if the property is residential, there is an additional requirement for a court decree to complete the procedure, under the provisions of the Home Owner and Debtor Protection (Scotland) Act 2010, and pre-action requirements must be fulfilled.

A recent sheriff court case, Westfoot Investments Ltd v European Property Holdings Inc 2015SCEDIN58 (31 August 2015) makes an important distinction, however. In this case, while the secured property was residential, the borrower – the defender in the case – was a corporate body. The sheriff concluded that the regime (as the name of the 2010 Act suggests) was intended to apply to homes used by homeowners, and did not include corporate borrowers granting security over residential property in their ownership.