What is money attachment in Scotland?
February 10, 2017
Money attachment allows a creditor to ‘attach’ (seize) money which is located in a premises owned by the debtor. Money attachment can only be carried out following a decree issued by the courts. Following this, a creditor may then instruct a Sheriff Officer to search business premises and seize money to satisfy the outstanding debt. Attachment cannot be used to seize money held in a property which is primarily used for residential purposes. Instead this procedure is used to obtain money held in business premises, and is therefore useful when there is a commercial debtor involved. It is most commonly used in retail premises and places such as pubs and restaurants where cash frequently changes hands, and can therefore be found in large amounts.
For the purposes of a money attachment procedure, money can take the form of cash (in either sterling or foreign denominations), cheques, promissory notes and postal orders. The Sheriff Officer carrying out the attachment has the power to ‘open shut and lockfast places’ in order to perform the search thoroughly. Consequently this means that the Sheriff Officer will be allowed to take money from inside a till or cash register without needing to obtain further permission from the courts.
There are some restrictions which must be adhered to by the individual carrying out the visit. Money attachment is not permitted on Sundays or local public holidays, nor is it allowed to take place outside the hours of 8am to 8pm. These time restrictions stand even if the visit has already commenced; in this instance the process must be terminated by 8pm. These times need to be stuck to rigidly unless express permission has been given by the court to the contrary. Consent may be given to operate outside of these hours in the case of, for example, a nightclub, where the operating times of the business are unusual, meaning a visit at 2am may prove to be more fruitful than one taking place at 10am.
It will be presumed that any money found on premises which are owned, occupied or controlled by the debtor, likewise belong to the debtor and will consequently be seized. This can be opposed, but must be done so within 14 days of the attachment taking place. The courts will then make a judgement as to whether to hold up the claim or not.
Money attachment can prove to be a valuable procedure for creditors, in particular landlords as most leases in Scotland, once registered, incorporate what is known as summary diligence. This means that immediate judgment enforcement for unpaid rent is permitted, without having to initiate further court action. Simply all that needs to be done is to pass on the registered lease to a Sheriff Officer who can conduct the money attachment.
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