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Introduction
Companies registered
in Scotland sometimes
create a charge
that must be registered.
If so, they must
deliver details
of it, together
with any document
creating or giving
evidence of it,
to the Registrar
of Companies in
Edinburgh.
The documents must
be delivered within
21
days after the creation
of the mortgage
or charge to ensure
its security in
the event of liquidation.
A court order may
be required to enable
Registration outside
the 21-day limit.
This booklet is
a guide to help
companies or any
interested parties
to send their documents
correctly first
time.
Companies need not
notify the Registrar
when they pay off
(or 'satisfy') a
registered charge.
But it is in their
best interests to
do so, and we enable
companies to do
this if they wish.
This booklet explains
how.
The registration
of charges is covered
by Part XII of the
Companies Act 1985.
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CHAPTER
1
Registration of
mortgages and charges
1. What
are mortgages and
charges?
A charge
is security for
the payment of a
debt or other obligation
that does not pass
'property' or any
right to possession
to the person to
whom the charge
is given.
2. What
charges must be
registered?
Section 410 of the
Companies Act lists
the charges that
must be registered
in Scotland. The
box on the following
page lists them
and gives a brief
explanation of each.
3. How much
does each registration
cost?
There is a fee of
£10
for registering
each Form 410, 413,
416 and 466 delivered
to Companies House.
The fee also applies
to Slavenburg charges
(see question 12).
There is no fee
for registering
a declaration of
satisfaction (Form
419a).
There is a fee of
£25
for a copy of a
certificate of registration.
These are available
from the Postal
Search Section at
Companies House,
Edinburgh.
The
following
require registration
in Scotland:
- A charge
to secure
any issue
of debentures.
A debenture
is an
instrument
issued
by a company
as evidence
of a debt
or other
obligation.
It includes
debenture
stock,
bonds
and any
other
securities
of a company,
whether
or not
it forms
a charge
on the
assets
of the
company.
- A charge
on uncalled
share
capital
of the
company.
Uncalled
share
capital
is the
balance
owing
for shares
that are
issued
partly
paid.
- A charge
on land
(wherever
situated),
or any
interest
in it,
but not
a charge
for any
rent or
other
periodical
sum arising
from land.
Technically,
land includes
property.
- A charge
on book
debts
of the
company.
Book
debts
are debts
that in
the ordinary
course
of a company's
business
are commonly
entered
in its
books.
- A floating
charge
on the
company's
undertaking
or property.
A floating
charge
is a charge
that does
not affect
the assets
charged
until
some event
crystallises
the charge,
fixing
it to
a certain
point
in time.
- A charge
on calls
made but
not paid.
Calls
made are
demands
for payment
of any
part of
the balance
owing
in respect
of shares
which
are issued
partly
paid.
- A charge
on a ship
or aircraft
or any
share
in a ship.
- · A
charge
on goodwill,
on a patent
or a licence
under
a patent,
on a trademark
or on
a copyright
or a licence
under
a copyright.
|
4. What
do 'instrument'
and 'evidence' mean
in this chapter?
An 'instrument'
is usually a document
in legible form
but it can also
exist in electronic
form.
To 'evidence' means
to provide proof
of the existence
of something.
5. Which
form should I use?
The form numbers
in this table correspond
to the relevant
sections of the
Companies Act 1985.
Those for which
a registration fee
is charged are marked
*.
| Purpose |
Form
Number |
| Particulars
of a mortgage
or charge |
410* |
| Particulars
for the registration
of a charge
to secure a
series of debentures |
413* |
| Particulars
of an issue
of secured debentures
in a series |
413a |
| Particulars
of a mortgage
or charge subject
to which property
has been acquired |
416* |
| Declaration
of satisfaction
in full or in
part of a mortgage
or charge |
419a |
Declaration
that part of
the property
or undertaking
charged:
(a) has been
released from
the charge;
(b) no longer
forms part of
the company's
property or
undertaking |
419b |
| Particulars
of an instrument
of alteration
to a floating
charge |
466* |
| Notice of
appointment
of a receiver
by the Holder
of the floating
charge |
Form
1 (Scot) |
| Notice of
appointment
of a receiver
by the Court |
Form
2 (Scot) |
| Notice of
receiver ceasing
to act |
Form
3 (Scot) |
6.
How do I get it right
first time?
-
Select
the correct
form to send
to the correct
registration
office - The
Edinburgh office
only - and follow
any notes on
the form itself.
Act as quickly
as possible:
you have only
21 days from
the date of
creation of
the charge to
register the
correct
details.
Extensions of
time to allow
for postal delays
apply only if
a charge is
created outside
the UK over
property outside
the UK. In that
case, the 21
days runs from
the date when
the instrument
creating or
evidencing the
charge, or a
copy of it,
could have been
received in
the UK in the
normal course
of post, assuming
it was despatched
with due diligence.
-
Send the certified
copy of the
instrument creating
or evidencing
the charge with
the form, if
there is an
instrument,
as there usually
will be. An
instrument does
not have to
be sealed. Unsealed,
it will be valid
if it is signed
by a director
and the company
secretary, or
by two directors.
The instrument
must be a certified
copy of the
original instrument.
-
Make
sure the details
on the form
are correct
and match the
instrument.
If we find errors,
the presenter
must authorise
their correction
and, if necessary,
deliver new
forms within
the 21-day time
limit. If necessary,
we will return
certificates,
instruments
and documents
to the presenter
named on the
charge form
itself. Please
ensure this
information
is complete
and accurate.
-
Make
sure the company
name and number
are correct.
Remember that
a company name
is only changed
on the day the
change-of-name
certificate
is issued by
Companies House.
-
Make
sure the creation
date and description
of the charge
agree with the
instrument,
except in the
case of charges
over land when
it is the date
of presentation
at the Land
Registry or
Register of
Sasines.
- Make sure the
amount secured
accurately reflects
what is stated
in the instrument.
- Make sure the
name of the chargee
matches the instrument.
('Chargee' means
the person to
whom property
is charged.)
- Make sure the
short details
of the property
charged accurately
reflect what is
stated in the
instrument.
-
For
registered land
it is desirable
that you give
the title number
of the property.
Ensure that
charging clauses
are always inserted,
including reference
to fixed and
floating charges.
- Sign and date
the form.
-
Complete
the forms legibly
using black
ink or, preferably,
type the form.
Forms are reproduced
electronically
so that the
public can inspect
them. The Registrar
may refuse documents
that are not
suitable for
scanning and
reproduction.
Please
note
If you omit
or mis-state
any detail
in the documents
registered,
then you should
apply to the
court to correct
it under section
420 of the
Act: Rectification
of register
of charges. |
7. What
happens when the
application for
registration reaches
Companies House?
If the document
is acceptable, we
take details from
it to produce a
certificate of registration
and record an entry
on the register
of charges. We return
the certificate
and instrument to
the presenter, and
scan and record
the form, copy certificate
and register entry.
8. What
if Companies House
has cause to query
the application?
We will contact
the presenter with
any queries. If
the form needs to
be corrected, it
must be done within
the 21-day time
limit.
9. What
if the charge is
not registered in
time?
If a registrable
charge is not registered
in time, then it
is void against
the liquidator or
administrator and
any creditor of
the company. This
means that the debt
for which the charge
was given will remain
payable, but it
will be unsecured.
If a company fails
to deliver a registrable
charge, and no interested
party has registered
it, then the company
and every officer
of the company who
is in default are
liable to a fine.
If the default continues,
they are liable
to a daily default
fine.
Can
a charge be
registered
out of time?
Only the court
can grant
an extension
of time for
registration
of a charge
that was not
received in
time and correct.
The normal
time limit
is 21 days
from the date
of creation
of the charge. |
10. What
must I do if my
company acquires
property that is
already charged?
If the charge is
of a type which
the company would
have had to register
if it had created
the charge itself,
then it must notify
the fact that it
has acquired this
property. To do
this the company
must complete and
send Form 416 to
Companies House,
with a certified
copy of any instrument
that created or
evidenced the charge.
This must be done
within 21 days after
the company completed
the acquisition
of the property.
If the charged property
is outside the UK
and the charge was
created outside
the UK, the 21 days
runs from the date
when the copy instrument
could have been
received in the
UK in the normal
course of post,
assuming that it
had been despatched
with due diligence.
Late delivery of
the details on Form
416 is an offence.
The company and
every officer of
it who is in default
are liable to a
fine. If the default
continues, they
are liable to a
daily default fine.
11. What
rights has the chargee?
If the company does
not send us a charge
for registration,
then the chargee
(the person to whom
property is charged)
- or some other
interested person
- can register the
required documents.
In certain circumstances
a chargee can appoint
a receiver or manager,
or ask the court
to appoint a receiver
or manager, over
the property charged
- for example, if
the company defaults
in payment of the
debt secured by
the charge. The
chargee must notify
the appointment
to Companies House
within 7 days using
Forms 1(Scot) or
2(Scot). We will
then enter this
in the register
of charges.
On ceasing to act,
a receiver or manager
must notify us using
Form 3 (Scot). We
will then enter
the fact in the
register of charges.
See our booklet,
'Liquidation and
Insolvency (Scotland)',
for more information
on receivers and
managers.
12. What
about oversea companies?
An oversea company
is a company incorporated
outside Great Britain.
Channel Island and
Isle of Man companies
that send charges
for registration
are treated as oversea
companies.
If an oversea company
has a branch or
other place of business
in Scotland and
is registered at
Companies House,
it must register
charges created
by it. This includes:
- charges over
property in Scotland;
and
- property in
Scotland acquired
by the company
that is already
subject to a registrable
charge.
All
the other provisions
mentioned in this
chapter which apply
to charges over
property in Scotland
in the also apply
to oversea companies,
including the fee
for registration.
Slavenburg
companies
Some oversea
companies
which have
established
a branch or
place of business
in Scotland
fail to register
here, as required
by the Companies
Act 1985.
Despite this,
the requirements
mentioned
above apply
to such oversea
companies
as if they
had in fact
registered
here. This
was decided
in the so-called
'Slavenburg'
case.
In other words,
a charge created
by such a
company and
charging property
in Scotland
should be
sent to Companies
House. Likewise,
property in
Scotland acquired
by such a
company which
is already
subject to
a registrable
charge must
also be registered.
On receipt
of the documents,
together with
the fee for
registration,
Companies
House enters
brief details
on the Slavenburg
register in
respect of
the company
by reference
to the date
of delivery
of the particulars.
Forms 410,
413, 416 or
466, the certified
copy deed
and the statutory
fee of £10
must reach
Companies
House within
21 days after
the creation
of the charge
or the acquisition
of the property,
as the case
may be. On
receipt, details
of the charge
will be entered
on the Slavenburg
register in
respect of
the company
by reference
to the date
of delivery.
Companies
House will
then issue
a letter to
the presenter
that should
be retained
as proof that
the charge
has been presented
to the Registrar.
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CHAPTER
2
Satisfaction of
charges
1. What
should I do when
the charge is paid
off (or 'satisfied')?
The company need
not inform Companies
House that a charge
has been fully or
partly satisfied.
However, it is obviously
in the company's
own interests that
potential investors
and lenders know
that all or part
of the debt has
been paid off. A
director or secretary
of the company may
therefore make a
statutory declaration
on Form 419a before
a Commissioner for
Oaths or equivalent,
and send it to us.
2. What
if charged property
ceases to be charged
or to belong to
the company?
As with partly or
fully paid-off charges,
the company need
not inform Companies
House that its property
has been released
from a charge or
that the property
no longer belongs
to the company.
However, it is obviously
in the company's
interests that potential
investors and lenders
should know. A director
or secretary of
the company may
therefore make a
statutory declaration
on Form 419b before
a Commissioner for
Oaths or equivalent,
and send it to us.
3. Is there
a fee for registering
Forms 419a or 419b?
No.
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CHAPTER
3
Further information
1. What
if I have a query
about registration?
Our charges staff
will willingly answer
general queries
but not legal points,
which should be
addressed in the
first instance to
a solicitor.
The usual telephone
number of our charges
staff is: 0131 535
5847
The contact point
for oversea and
Slavenburg companies
is as above.
2.Where
do I get forms and
guidance booklets?
This is one of a
series of Companies
House booklets which
provide a simple
guide to the Companies
Act.
Statutory forms
and guidance booklets
are available, free
of charge from Companies
House. The quickest
way to get them
is through this
website or by telephoning
0870 3333636.
If you prefer you
can write to our
stationery sections
in Cardiff or Edinburgh.
Forms can also be
obtained from legal
stationers, accountants,
solicitors and company
formation agents
- addresses in business
phone books.
3. How do
I send information
to the Registrar?
You may deliver
documents to the
Registrar by post,
by hand (personally
or by courier) or
by the Hays Document
Exchange service.
The Registrar
of Companies
Companies House
37 Castle Terrace
Edinburgh
EH1 2EB
DX ED235 Edinburgh
1
We will only acknowledge
receipt of documents
at Companies House
if you provide a
stamped addressed
envelope.
| Please
note: Companies
House does not
accept accounts
or any other
statutory documents
by fax. |
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