buying & selling property in Scotland

SPACER

GLOSSARY OF TERMS

CLOSING DATE:
A closing date for Offers is set by a Seller when he expects (or at least hopes!) to receive more than one Offer for the property. There is no obligation on any Seller to fix a closing date and whether or not such a step is taken depends very much on the prevailing state of the property market, the level of interest shown in that particular property etc.

A CONCLUDED BARGAIN:
Once all terms and conditions relating to a house purchase transaction have been agreed between the parties' solicitors and set down in writing, then the bargain (i.e. contract to purchase/sell) is completed. The last missive letter to pass from one solicitor to the other will accordingly very often contain a phrase such as:- "we now the hold the bargain between us as concluded". Once there is a concluded bargain then both Purchaser and Seller are contractually bound to proceed with the transaction.

DATE OF ENTRY:
The date of entry is set down in the missives, although it may be brought forward or put back with the agreement in writing of both Purchaser and Seller. The date of entry is the date on which payment of the price is made by the Purchaser's solicitor to the Seller's solicitor in exchange for the keys and title deeds.

DISPOSITION:
Is simply the title deed for the property granted by the Seller in favour of the Purchaser.

MISSIVE LETTER:
One of the formal letters passing between Purchaser and Seller (or, more usually, their respective solicitors). A missive letter can therefore be any one of the Offer to purchase, the letter of acceptance, or any of the subsequent formal letters passing between the solicitors acting for both buyer and seller dealing with and agreeing all matters governing the terms and conditions of the transaction.

THE MISSIVES:
The collective name given to all the missive letters relating to a transaction involving the purchase/sale of property. The missives are an important set of documents and are the contract to sell/purchase a property.

In Scotland an Offer for property is not "subject to contract" as is the case in England and Wales. Instead the written Offer to purchase and all subsequent missive letters passing between the parties' solicitors themselves form the contract and set down in detail the whole rights and obligations of both Purchaser and Seller.

NOTED INTEREST:
Once you have found a property in which you are particularly interested, but have not yet reached the position of being able to lodge a formal offer, you should ask your solicitor to note an interest with the seller's agents. This step does not commit the you in any way, and simply indicates to the Seller that you are interested in the property and wish to be kept informed of developments, such as the fixing of a closing date for offers.

STANDARD SECURITY:
Is the formal Deed of Security which a Purchaser is required to grant over his/her property in favour of the mortgage lender. In England and Wales the equivalent deed is called a Legal Charge.

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INTRODUCTION

BROWN & McRAE - SERIOUS ABOUT PROPERTY
For most people, buying or selling their home is the biggest financial transaction in which they will ever be involved. It often happens at a time when there are plenty of other things requiring your attention - a new job, moving to a new town, getting married (or divorced), seeing the children settled in new schools, and so on. Naturally therefore, you want your house sale and/or purchase to go as smoothly as possible and it is part of our function to ensure that this indeed is the case. Remember - ITS NEVER TOO EARLY TO CONSULT YOUR SOLICITOR.

THE CONVEYANCING PROCESS
The legal side of a house purchase or sale is called conveyancing. This Web Page is intended to explain stage by stage what happens in a conveyancing transaction and to give you an idea of what you can expect Brown & McRae to do for you.

GOOD ADVICE
Over recent years, the contractual aspects of house purchase and sale - agreeing the terms and conditions set down in the missives - have become more complex that ever. If something goes wrong, it could cost you a lot of money, or even your house. It is therefore more important than ever that you obtain sound legal advice from a solicitor prior to committing yourself to any course of action. A brief initial interview may be sufficient and could well save expense later on.

GOOD SERVICE
A good professional service is not only about the quality of legal advice. It also means prompt attention to your business, availability when you want to discuss something, and communication - keeping you informed about what is happening.

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BUYING A HOUSE

General
We will be happy to give you an outline of the whole procedure from start to finish. Take advantage of your first meeting with us to discuss all aspects of the transaction - for example the general price range which suits your budget, your mortgage requirements, the expenses you will have to meet, and, the fees and outlays chargeable by Brown & McRae for your particular transaction.

Noting Interest
When house hunting, take advantage of our local knowledge, since this could avoid a lot of wasted effort. When you do see a property you like, simply ask us to note interest for you with the selling agent. A note of interest does not oblige you to buy, so you are not committing yourself in any way. This step simply indicates to the Seller that you are interested in the property and wish to be kept informed of developments, such as the fixing of a closing date for offers.

Surveys
Just about the only thing Brown & McRae do not do in your purchase transaction is carry out the survey, but we can advise you on the options available and the costs involved, and can instruct a surveyor on your behalf. You should discuss the subsequent survey report with us before proceeding further.

Alterations and Additions to the Property
This is an area which gives rise to many problems. If you are aware from the survey report you have obtained, or from your own observations, that the house has been altered, or extended, do please let us know, so that we can check whether planning permission and/or a building warrant were required and, if so, whether they were obtained and a completion certificate issued by the Local Authority when the works were finished. These documents may be of vital importance when, in turn, you eventually come to sell the house.

Making the Offer
Once you decide to take the plunge, we will be happy to discuss with you, and advise you on, the terms of your Offer. Offer documents are long and complex and are designed to protect you against all the pitfalls of buying a house. It is therefore important to get them right first time. Our expertise and experience are vital here. This is the crucial stage in the whole process, because acceptance of your Offer creates a legally binding contract. We will, of course, let you have a copy of the Offer for reference purposes.

Acceptance
Should the Seller decide to accept your Offer, then the Seller's solicitor will send us a formal acceptance, in which the Seller will include conditions which seek to modify the terms of your original Offer. This is because the conditions in your Offer were framed to oblige the Seller to disclose certain facts about the property and the title to it. These conditions by the Seller are called "qualifications" and the acceptance is therefore referred to as a "qualified acceptance". We will discuss the qualifications with you and give you advice so that you can decide on those qualifications which you are prepared to accept and those which you are not. This may lead to a further exchange of formal letters before both parties are in full agreement and your Offer, subject to these negotiated modifications, is finally accepted.

Concluding the Bargain
The Offer, Acceptance and any subsequent letters, which are described as "formal" because they are intended to be part of a legal contract, are known as "missives". When the final acceptance is issued it is said that missives are concluded, which means that you and the Seller have entered into a legally binding contract. We will consult with and advise you at each stage of this process and will furnish you with copies of the formal letters which form the missives.

Investigation
During the course of the negotiations leading to a concluded bargain and in preparation for completing the transaction, we require to investigate numerous matters concerning the property and its title. A lot of this work is done by requiring the Seller to make disclosure of the relevant information and to produce the necessary documents in support.

The Title
It is part of our responsibility to you to carry out a detailed examination of the title deeds to make sure that the seller is genuinely the owner of the property and that his or her right to sell is not restricted in any way. The title deeds also describe the precise extent of the property. We may ask you to confirm that the property described in the title deeds is precisely what you think you are buying. The examination of the title will also reveal whether there are conditions relating to the property about which you should be aware, eg. restrictions on business use, or a requirement to contribute to the maintenance of common ground. We shall advise you of any such conditions.

Local Authority Matters
You will want to know whether the roads are public or private, whether there are any planning proposals which might affect the property and whether the local authority has made any statutory orders of notices affecting the property. We will check all these matters for you.

The Security or Mortgage Transaction
In most cases your lender will instruct us, as your solicitors, to carry out the lenders legal work as well. This saves time and money. You should understand, however, that the security (sometimes called "a mortgage") is really a separate legal transaction in which we, acting for the lender as well as for you, must have the same regard to the lender's interests as he has to yours.While these interests are broadly the same, we will, if possible, resolve any differences which might emerge. The mortgage lender will issue lengthy and detailed instructions to us in connection with the loan, which involve a substantial amount of work. The lender requires that you pay for this work, which is covered in the fee charged to you by Brown & McRae.

Provided that you have completed your loan application form in good time and supplied the lender with all the information it needs, we should be able to ensure that your loan funds are available when the purchase price of the house is due to be paid. If your loan is linked to an investment product, eg. an endowment policy, a pension plan or an ISA, we will need to be satisfied that it has been properly set up before the loan can proceed.

The Deeds
There will be various documents for you to sign in connection with the transaction, the most important being the Standard Security, the deed which secures the loan over your new property. We shall explain the effect of all documents which you have to sign, and ensure that they are properly signed in good time.

Preparing for Settlement
As the date for settlement of the purchase approaches, we reach the stage where we draw together all the strands of the transaction - we must ensure that there are no outstanding queries about the property or the title, that all the necessary documents have been obtained and, if necessary, signed and that your funds (the balance of the purchase price, our fees and outlays) and the mortgage funds are in our hands. We will also explain to you what will actually happen on the date of settlement and how you will obtain the keys to your new house

The Date of Entry
Assuming we have received the necessary funds from you and/or your mortgage lender, we shall ensure that the purchase price is in the hands of the seller's solicitors on the agreed date of entry. In exchange you are entitled to receive the keys for the property and to be given a good title.

Taking Entry
We will discuss with you the steps you should take immediately after the date of entry entry to check that the property is in good order, that any extras (carpets, curtains or other items) which you are buying are present and that items like the central heating system are in working order (if indeed that is what the missives provide). We can also explain what has to be done should you discover any problems in this regard and what legal remedies, if any, you have.

After Settlement
Following conclusion of the transaction we will report to you detailing any matters that remain to be dealt with and in particular any financial matters which might still be outstanding. We will also report to your lender and will check that all the documentation is in order before sending the title deeds for recording in the Register of Sasines or registration in the Land Register of Scotland, this being the final step to complete your title. Eventually when the registration process is complete, we again check the documentation before sending it to your lender for safe keeping.

Free Offer!
The purchase of a house is a significant milestone in your life, and so you should at the same time think seriously about drawing up a Will (or updating your existing Will). As part of our "package" of services to house buying clients, we offer to prepare a simple Will* for you at no additional cost.
*Terms & conditions apply: a "simple" Will is, as the name implies, a straightforward deed which contains no complex or unusual bequests and does not incorporate any Trust provisions within its terms. In the event that your circumstances are such that a more detailed Will is appropriate, a discounted fee will be charged. This offer only applies to instructions furnished to us during the course of the house buying process - if you only choose to approach us about a Will after the purchase of your property has been completed, your instructions will be treated as a separate transaction and our normal rates of fee for such work will apply