Property

Buying and selling property in Scotland differs from the system in the rest of the UK. The main difference is that under Scottish Law, once a formal written offer has been accepted in writing [without qualification], the Purchaser and Seller are fully bound by contract. That formal written offer should be submitted by a solicitor to ensure that all necessary protections and safeguards are covered. A concluded contract is sometimes referred to as concluded missives, missives being the series of formal letters which make up the contract. In the rest of the UK the "Offer subject to Contract" situation applies where either the buyer or seller can ordinarily withdraw from the transaction at any time up until the exchange of Contracts has been executed, which is usually done fairly near to the actual sale/purchase date.

The Scottish legal "Missive" procedure therefore gives the Purchaser and Seller absolute certainty of a legally binding Contract. If there is a breach of Contract, the party who is in breach will almost certainly be liable to pay compensation to the other party. It is therefore very important that legal advice is taken at an early stage. There is a tendency to use the word ‘Missives’ in relation to residential property contracts while the word ‘contract’ is more often used regarding commercial property contracts. The law of contract in Scotland is however the same whether the property transaction involves residential property or commercial property. Our ‘Commercial & Business’ page on this website provides guidance on our services re commercial property. The remainder of this page covers the practicalities of the process in residential property transactions.

THE RESIDENTIAL PROPERTY PURCHASE PROCESS

THE FIRST STEP:
Once a Purchaser has viewed a property which they consider is a prospect for purchase, the Solicitor acting for the Purchaser should be asked to lodge on the Purchaser’s behalf with the selling agent a note of the Purchaser’s interest in the property. Agents will usually insist on a note of interest being lodged by the Purchaser’s Solicitor. This alerts the selling agent to the fact that the Purchaser is interested in that property and that the Purchaser may submit an offer. If there is no competing interest, the selling agent may invite submission of an offer at that point. If there is competing interest [i.e. at least one other party has noted an interest], the selling agent may decline to consider offers until a formal closing date for submission of offers is set by the agent. Cautionary point – noting interest in a property does not guarantee that a Purchaser will be given the opportunity to submit an offer. A Seller is free to sell their property as they deem fit. Noting an interest should however minimise the chances of a property being sold without the Purchaser having the opportunity to offer. Noting an interest does not create an obligation to submit an offer. It is an informal procedural custom and practice. If a property is being sold privately without an agent, the Purchaser should secure the contact details for the Seller’s solicitor thus allowing the Purchaser’s Solicitor to make contact and arrange submission of an offer direct to the Seller’s Solicitor if required.

HOME REPORTS, VALUATION REPORTS & SURVEY REPORTS

While a prospective Purchaser may continue to elect to have a Valuation Report [often referred to as an option 1 or scheme 1 report] or may elect to have a Survey Report [often referred to as an option 2, scheme 2 or homebuyers report] carried out on a property at the Purchaser’s expense, the law now requires anyone marketing a home for sale to provide a Home Report. The Seller is responsible for providing the Home Report. The Home Report comprises three separate components: [i] a Single Survey [content broadly between that of a valuation and an option 2] [ii] an Energy Performance Certificate and [iii] a Property Questionnaire. [i] and [ii] are prepared by a Chartered Surveyor while [iii] is completed by the property seller or their representative. The Single Survey component will also incorporate a Valuation Report in a form usually acceptable to mortgage lenders. The Home Report is paid for by the Seller and will often be provided to potential buyers by selling agents [or sellers] free of charge but a minority of agents apply a modest charge to cover copying, postage or an internet download fee. The Valuation Report can be extracted from the Single Survey for mortgage purposes thus saving Purchasers the expense of instructing a mortgage valuation or survey. Some mortgage lenders may however insist on having a separate Valuation Report either as a matter of policy or where the Home Report surveyor is not on that lender’s panel of approved surveyors. There are some exemptions from the requirement that a Seller provides a full Home Report such as in a private ‘off market’ sale or for a new build property. The Energy Performance Certificate component is however almost always required. Please speak to us for clarification if needed. Remember too that a Valuation Report should not be regarded as a comprehensive survey and should not be relied upon alone especially when purchasing an older property or one with structural or condition issues. For avoidance of any doubt, the Single Survey component of a Home Report is a survey and is more comprehensive than a Valuation Report .

Further details are available at the Home Report website: www.homereportscotland.gov.uk

HOME REPORT RECOMMENDATION FOR CLIENTS SELLING: If selling a residential property, and instructing Lamonts in the legal formalities of the sale, we recommend that clients consult with Lamonts at the earliest opportunity in respect of completion of the Property Questionnaire section of the Home Report as the seller may be held legally liable for any mis-statements or inaccuracies within the completed questionnaire. Lamonts will assist and advise as required. A full Home Report should be available from the outset of marketing a residential property for sale.

The Mortgage Your Solicitor, even if not arranging your mortgage, will liaise with your mortgage lender to make sure that full approval is available in respect of the mortgage that you require.

Fixed Price Offers A property marketed at a "Fixed Price" indicates that the first legal Offer at the Fixed Price shown, subject to a suitable date of entry, will be accepted.

Closing Date for Offers When more than one person has noted an interest, indicating that they are prepared to submit an Offer for a particular property, the Selling Agent may set a "Closing Date" for Offers. The Closing Date is a precise time on a particular day, set by the selling party or their Agents when the prospective Purchasers are required to submit their formal Offers into the hands of the Selling Agent for consideration.* Note The Seller is under no legal obligation to accept the highest or, indeed, any of the Offers submitted at the Closing Date.

SUBMISSION OF A FORMAL OFFER TO PURCHASE The team at Lamonts will use their extensive experience and knowledge of the Ayrshire property market to guide you on how much to offer for a property. We will liaise with the selling agent to assess the level of interest in the property and to determine the price which the seller may accept. For properties outwith Ayrshire, we will use our network of Surveyor contacts to check market conditions so that we are equipped to assist you. If a closing date has been set, we will assess the number of offers likely to be submitted and assist you in pitching your offer at a level which is reasonable within the context of the valuation of the property and other relevant factors.

The earlier you speak with us the better so that when you embark on your property search you do so fully informed of the various intricacies and practicalities of the legal process. Occasionally a client may informally agree a price with a seller and while this is unlikely to be legally binding on the parties, it can sometimes be a useful component of the negotiating process.

Once you have decided to proceed to submit an offer, your Solicitor will then take your detailed instructions and frame the formal written legal OFFER, which if successful, will be passed to the Seller's Solicitor who will issue the legal QUALIFIED ACCEPTANCE of the Offer. This negotiating of the content of the final version of the MISSIVE, i.e., legal Contract to buy/sell, is relatively complex involving legal conveyancing expertise. When matters have been agreed, a CONCLUDED CONTRACT, otherwise referred to as a MISSIVE will be achieved. In Scotland once Missives have been concluded, you know that you have a binding Contract and that you cannot be "gazumped". Your Solicitor will carry out the CONVEYANCING, liaise with your mortgage lender [where applicable] and prepare your mortgage document, called a STANDARD SECURITY and generally finalise the legal conveyancing work for the date of entry which has been set in the Missive. More detailed guidance on procedures will be provided once we are instructed by you.

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Property Purchase and Sale