Actions of division and sale – change in legislation

New rules

For actions of division and sale lodged on or after 28 November 2011, it is worth noting the new rules in the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 no.1956 (s.223), Schedule 1, Chapter 47.

Previously a surveyor would have been asked, as part of the court proceedings, to submit a report on whether the property in question was capable of division and to state an upset or minimum price. This would be submitted to the court for further consideration.

New information

The court now requires fuller details from the report in addition to the above information,which includes:

• Whether the property should be sold as a whole or in lots
• Whether the property should be exposed for sale by public roup or private bargain
• The manner and extent to which the property should be advertised for sale
• Any other matter which the reporter considers pertinent to the sale of the property

On receipt of the surveyor’s report, the sheriff clerk is required to lodge the report in process and give written intimation to each party to the action that this has been done and that the parties may uplift a copy of the report from process. It is only after this that the parties can apply for further procedure. If any part of the report is challenged, the court can order parties to state their objections and answers to such objections.

Impact on procedures

To date, we have not found any significant issues when asking surveyors to provide this additional information, however, some may insist that a drive by valuation is not sufficient for them to provide such a fuller report. We did have one surveyor who wished to refer matters related to the sale of the property to an estate agent to report on and we have yet to receive the court’s response to this.

Now that these new requirements are in place the whole process of division and sale may take longer, and the amount of detail required in a report may vary among different courts.