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Buying and selling property in Scotland differs from the system in the rest of Britain. The main difference is that once a formal written offer has been accepted in writing [without qualification],the Purchaser and Seller are fully bound by contract. A concluded contract is sometimes referred to as concluded missives. In the rest of the UK the "Offer subject to Contract" situation applies where either the buyer or seller can withdraw at any time up until the exchange of Contracts, which is usually fairly near 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 in respect of the following matters:-

Noting an Interest 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 a particular property. 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 [ie 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 c reate an obligation to submit an offer. It is an informal procedural custom and practice.

HOME 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, with effect from 1.12.08 the law 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 a Single Survey and Energy Report both prepared by a Chartered Surveyor together with a Property Questionnaire prepared by the Seller. The Home Report is paid for by the Seller and will be provided to potential buyers either free of charge or for a modest charge to cover copying and postage or download charges when accessed via the internet. The Selling Agent or the Seller should be able to provide a full copy of the Home Report on this basis. It is anticipated that most mortgage lenders will accept a formal transcribed copy of the Single Survey for mortgage purposes thus saving Purchasers the expense of instructing a mortgage valuation or survey. There are some exemptions from the requirement that a seller provides a full Home Report such as in a private ‘off market’ sale or a new build property. Energy Performance Certificates are however almost always required. Please speak to us for clarification if needed

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

RECOMMENDATION FOR CLIENTS SELLING: If selling a residential property, we recommend that you consult with Lamonts at the earliest opportunity in respect of completion of the Property Questionnaire section of the Home Report as you [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. Your Solicitor will take your instructions and frame the 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, ie, 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 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. In the main, conveyancing fees in Scotland are higher than elsewhere in the UK due to the higher level of work involved for the Solicitor.

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Property Purchase and Sale