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Law Society of Scotland

Buying & Selling Property

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Buying a House in Scotland - Guide from our Conveyancing Solicitors

Purchase of property cannot be concluded without signed missives and then transfer of title deeds into the name of the purchaser. The missives are constituted by a written and signed offer by us as your solicitors, an acceptance (in writing) of that offer, and any further missives designed to iron out disputed legal clauses.

For a free initial consultation, contact our conveyancing solicitors on 0808 149 7187 or complete our online enquiry form here. For more information on buying & selling property read our helpful guide below.

Offer and Acceptance (Including Qualified Acceptance)

The offer and acceptance (known as a qualified acceptance as it contains qualifications or amendments to the terms of our offer) contain numerous legal clauses and conditions. These are designed to protect the respective interests of the seller and purchaser. They can vary from transaction to transaction depending on the property and the wishes of both clients. It is crucial that you realise that once a written offer goes in, you have not yet formed a binding contract to buy the property. You are neither bound to buy it at that point, nor can you insist on buying it. The seller requires, through his/her solicitor, to issue the qualified acceptance. You then as purchaser have an opportunity to instruct us to respond to any conditions in the qualified acceptance with which you don’t agree and we do so in writing with a further missive. In order to complete the contract the seller’s solicitor needs to write back to us confirming that our additional clauses or our changes are agreed. Once all clauses are agreed then a binding contract exists and neither party can back out without the other’s agreement.

Conclusion of Missives, Conveyancing, Date of Entry and Mortgages

When missives are concluded the conveyancing proceeds and when the date of entry comes around, it is legally binding on the purchaser to pay over the full sum. The seller is not responsible for any delays in the purchaser’s mortgage being made available, that is the responsibility of the purchaser him/herself (and of course their lenders and mortgage brokers). We as solicitors are not mortgage brokers and do not have any involvement in the issuing of loan papers nor the timing of an offer of loan. Only when we receive loan papers from the lenders, are we able to process the paperwork and indent for the money. We cannot guarantee to receive the money if we are sent the loan papers any later than 14 days before the agreed entry/completion date. We will always try our best to overcome any difficulties arising out of late issue of loan papers, but we can only do so much. We do not know what demands an individual lender will make to see or receive paperwork or information from us, until loan papers are issued.

As you will see from our letter of engagement, the money laundering regulations apply very strictly to all clients and solicitors. If you are providing money for a deposit or to purchase outright then we are entitled, indeed obliged, by law to enquire into the origin of the funds, the length of time you have had them and the bank in which they have been held. Therefore please do not be offended if we ask questions. Failure to do so on our part would cause us to commit a criminal offence.

Title Deeds, Searches, Alterations and other Property Enquiries

As part of the conveyancing process we check on the title deeds, searches of the title and personal registers, property enquiry matters (such as whether there are any local authority or public orders affecting the property) a mining report and whether alterations, authorised or unauthorized, have been carried out to the property. On the question of alterations, we are dependent on information from you as the client and from the surveyor as to whether there have been alterations. We shall assume there have not been, unless our attention is drawn specifically to them. If there have been such alterations we shall endeavour to ensure that the sellers produce either the appropriate paperwork from them or, if that paperwork is lacking, that remedial satisfactory paperwork be obtained in its place.

Completion of the Transaction and Payment

As we approach completion of the transaction, we shall advise you of the monies that are required. Please note that Law Society regulations do not allow us to accept personal cheques unless they are received more than 7 days before the completion date, so that they have time to clear. We prefer payment by bank draft or by direct transfer from your bank to ours and we can provide our bank details in plenty of time for this to be done.

Title Deeds Post Completion and Stamp Duty ( now in Scotland called Land and Buildings Transaction Tax)

Following completion of the transaction, the seller’s solicitor will send us the fresh title deed in your name. We will arrange a stamp duty return form to be sent to Revenue Scotland and thereafter your deeds and documents are registered in your name at the Land Register of Scotland. This process can take from a few days to a few months, but once the registration is complete, we will send your title print or update to your mortgage lender or, if there is no mortgage, to you. As an alternative to the latter we are happy to store deeds and documents on behalf of clients at no charge.

Other Property Considerations

If the property contains heating and other working systems, we include in the offer a clause that allows you to have the seller pay for any repairs in defective systems or equipment as long as such defects are intimated in writing within a set number of days after the purchaser takes entry. Please be aware of this, and immediately on taking entry to the property, check all systems and equipment, and let us know if a written notice has to be sent to the seller’s solicitor within the set time limit, as the seller will then be liable for the cost of repair or replacement. This does not apply to the general fabric of the building, you as the purchaser taking it as you find it, and usually with the benefit of a survey to guide you beforehand.

We do not arrange buildings insurance for clients’ properties unless instructed to do so. If insurance is by common policy for a flat or some other group policy, we shall advise you as soon as we know this from the seller’s solicitor, but you should assume that you require to arrange your own insurance and do so in time for the date of entry. Once you buy and take over the property, the responsibility for its safety and upkeep is yours alone.

Purchasing for Couples - Joint Names or Survivor

Most commonly when we are purchasing for couples we will take the title in your joint names or survivor. (see also below). In the event of a death, the property would pass to survivor. If you do not wish the title deed drawn in this way, please advise.

Unmarried Couples Buying Property in Joint Names

For unmarried couples buying property in joint names: We shall during the transaction be drafting the Disposition. This is the deed which passes ownership in the property from the seller to both of you. Often when partners are buying a home together, a survivorship clause is inserted in the Disposition so that if one partner passes away, that share passes automatically to the other without the need for any further paperwork. The alternative is not to put this clause in, which means that if one of you were to pass away, the other half does not automatically transfer to the other. Rather, the half share would be distributed according to the provisions of the Will. We would be delighted to discuss this matter with you, and look forward to taking your instructions once you have had the opportunity to think about it. If we do not hear from you to the contrary, we shall draw the deed with the survivorship clause.

 Selling a House in Scotland - Guide from our Conveyancing Solicitors

Sale of property cannot be concluded without signed missives and then transfer of title deeds. The missives are constituted by a written and signed offer by the purchaser’s solicitors, an acceptance of that offer in writing and any further missives designed to iron out any disputed legal clauses. The offer and acceptance (known as a qualified acceptance as it contains qualifications or amendments to the terms of the offer) contain numerous legal clauses and conditions. These are designed to protect the respective interests of the seller and purchaser. They can vary from transaction to transaction depending on the property and the wishes of both clients. It is crucial that you realise that once a written offer is received, you have not formed a binding contract to sell the property. Neither are you bound to sell it at that point nor can you insist on selling it. You require, through us as your solicitors to issue a qualified acceptance. The purchaser then has an opportunity to instruct a written response to any conditions in the qualified acceptance with which they don’t agree and they do so in writing with a further missive. In order to complete the contract you need to instruct us to write back to the purchaser’s solicitor confirming that the additional clauses or any changes are agreed. Once all clauses are agreed then a binding contract exists and neither party can back out without the other’s agreement.

Concluded Missives and Legal Obligations on the Purchaser and Seller

When missives are concluded, the conveyancing proceeds and once the date of entry comes around, it is legally binding on the purchaser to pay over the full sum. The seller is not responsible for any delays in the purchaser’s mortgage being made available, that is the responsibility of the purchaser him/herself (and of course their lenders and mortgage brokers). Our job as seller’s solicitors is to bring together the title deeds, searches and various reports which the purchasers are entitled to see. We require your co-operation and information at all stages, and will do our best to get all documentation together in time. However, if the date of entry is very soon after conclusion of missives, or if there are other reasons beyond our control that make it difficult or impossible to get the title deeds or other documents, then any delay in settlement will be the liability of the seller.

Alterations, Planning Permission, Building Control and other Property Considerations

One particular matter to note is that the purchaser is entitled to receive any documentation that covers alterations made to the property (and indeed that covers its overall construction if it is recently built). It is the seller’s responsibility to provide the likes of planning permission and building control documentation, and ideally this should be with your title deeds. If it is not, then we may require you to obtain duplicate documentation, or, if the proper permissions were not granted when the work was done, to obtain fresh documentation from the local authorities. This may be what is generally known as a letter of comfort from the building control department, confirming that although permission was not granted at the time of construction, building control is prepared to allow the building to remain as it is without requiring remedial work. If you have carried out alterations since you moved into your property, please look out the relevant paperwork for us as soon as possible.

If the property contains heating and other working systems, it is common for the purchaser to include in the offer a clause that allows them to have the seller pay for any repairs in defective systems or equipment as long as such defects are intimated in writing within a set number of days after the purchaser takes entry. Please be aware of this, and if selling, let us know if there are any defects likely to come to the purchaser’s attention in his way, as the seller will then be liable for the cost of repair or replacement. This does not apply to the general fabric of the building, the purchaser taking it as they find it, and usually with the benefit of a survey to guide them beforehand.

Financial Calculations and Mortgage Redemption

As we approach completion of the transaction, we shall advise you of the financial calculations, including the money to pay back any mortgage on the property. We shall pay the redemption of mortgage from the price when it is received by us from the purchaser’s solicitor, and complete a full cash statement showing you the monies we have expended on your behalf and sending any balance to you. If by any chance the redemption of the mortgage is a figure higher than the sale price of the house, then this is obviously a problem as the purchaser cannot get clear title to the property. The mortgage lender will refuse to discharge their security without full repayment of the mortgage, or some other agreed outcome. Such a position is very rare, but you should advise us at the very earliest stage if this is a possibility.

Buying a House and Selling your House on the Same Day

If you are buying a house and selling on the same day, then it is usually essential that we have the money in from the sale of your old house in order to complete the purchase of the new house. Note that solicitors usually still complete transactions by way of cheques drawn on their own bank accounts. These cheques are always honoured, and solicitors are obliged to trust each other that if a cheque is issued, the funds are there to cover it. Thus solicitors do not require to await clearance of cheques before releasing keys. However, if cleared funds are needed for any reason (some developers insist on payment by way of bank transfer which requires funds to be cleared), then it is the client’s responsibility to ensure that we are in receipt of cleared funds, or to let us know at the outset that we must (exceptionally) insist on payment of the price of your old house by bank transfer. If the need for cleared funds emerges later, you may have to obtain bridging finance to cover the days of clearance. We can make an introduction to lenders for this purpose but are not acting as financial advisers in that regard.

On a related note, when settling with you after the sale, we can immediately give/send you a cheque for any balance due to you after deduction of fees, searches, mortgage redemption and any out outlays, but we must await bank clearance on the incoming cheque from the purchaser’s solicitor before doing any kind of electronic transfer to your nominated account. Note that there may also be a bank charge for this kind of payment to you.

Completion of the Sale, Title Deeds and other Considerations

Following completion of the transaction, we will send the title deed (which will already have been signed by you) to the purchaser’s solicitor. We will send all necessary documentation and any remaining funds to you as soon as we can after completion. If we have to retain any money, for factor’s fees or for additional necessary expenses, this will be shown in your cash statement and accounted for in full.

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Client testimonials

"I wanted to make you aware of the first class and professional service I received during the purchase of my new house, and sale of my flats. Elaine MacDonald, and her assistant, Tracey Matheson were fantastic to work with. I was kept up to date at all times..."
Stephanie, East Kilbride