Commentary on Sections Appointment of judicial factor
5.Section 1 provides, at subsection (1), for the court to appoint a judicial factor on an estate if the conditions for appointment, set out in section 4, are met. For appointment to take place, an application must be made to the court by an interested person, defined in subsection (7) as a person that the court is satisfied has an interest in the appointment of a judicial factor on the estate. This might be a person who has an interest directly in the estate itself, or a person whose interests are affected by the estate, for example the owner of a property which adjoins property forming part of the estate, where that estate property is in a state of disrepair such that damage might be caused to the neighbouring property.
6.Subsection (7) also contains a definition of “the court” for the purposes of this section and section 3. The effect of that definition is that the Court of Session and the appropriate sheriff court have jurisdiction to appoint a judicial factor under either section 1 or 3. In circumstances where none of the other sheriff courts have jurisdiction, Edinburgh sheriff court will have jurisdiction. The other sheriff courts will have jurisdiction where:
	a part of the estate comprising at least one fifth of its value is located in the sheriffdom of that court,
	the person who made the application to the court, or any other person with an interest in the estate, is resident in the sheriffdom of that court, or
	where the estate belongs to a person who is not an individual, such as a limited company, the person has their registered office or a place of business in the sheriffdom of that court.
7.Subsection (2) places a requirement on persons applying for the appointment of a judicial factor to notify every person with an interest in the estate. Subsection (3) provides a further route for appointment of a judicial factor on an estate, by providing that the court may appoint a judicial factor during the course of proceedings in that court. The conditions of appointment set out in section 4 again require to be met, and the proceedings must have some connection to the estate on which the court wishes to appoint a judicial factor. Appointment can be done by the court without an application having been made, or a person who is party to the proceedings can make an application provided they fall within the definition of “interested person” set out in subsection (7). Subsection (4) places a requirement on the clerk of court to notify every person with an interest in the estate that the court is minded to make an appointment under subsection (3)(a)(i), while subsection (5) places that requirement on a party who makes a motion for appointment under subsection (3)(a)(ii). Subsection (6) then sets out the circumstances in which the court may determine that intimation does not require to be given under subsection (2), (4) or (5).
8.Section 2 adds further intimation requirements which are to apply, in addition to those set out in section 1, in relation to the appointment or potential appointment of a judicial factor to the estate of a charity.
9.Subsection (1) places a requirement on persons applying for the appointment of a judicial factor to the estate of a charity to notify the Office of the Scottish Charity Regulator (“OSCR”) (unless OSCR is the applicant), and to advertise to the general public, that the application has been made. Subsection (2) requires the clerk of court to notify OSCR, and advertise to the general public, where the court is minded to appoint a judicial factor to the estate of a charity under section 1(3)(a)(i), while subsection (3) places that requirement on a party making a motion for the appointment of a judicial factor in the course of other proceedings relating to the estate of the charity under section 1(3)(a)(ii). Subsection (4) sets out the circumstances in which the court may determine that advertisement need not be made to the general public. The court is not given the power to determine that OSCR need not be notified.