. . . The Legal Process For Scotland
Continued
In the interim, we will advertise the property for sale either with the agreed
asking price or at offers over the upset price, In a strong market we may advise
setting a closing date for offers to be received. This will normally be two or
three weeks after the advertisement has first been displayed, to allow any possible
buyers time to arrange a survey and the finance for the property.
On,
or before the closing date, assuming we have by then received an offer with a
closing date acceptable to you, we will, on your behalf, instruct your solicitor
to exchange missives regarding the date of entry and any special conditions sought
by the buyer.
Originally the missives would have been carefully hand drawn on parchment and
no more than two pages but that was before the convenience of the word processor!
Most solicitors have developed their own preferred list of terms and conditions
which may well differ from those favoured by the other solicitor! Consequently
it may now take some weeks before all the missives are concluded.
Conditions attached to the offer typically relate to the deeds of the properties
being acceptable and all planning permissions, building warranties, timber treatments
and guarantees on specific works being obtained. In rural areas, conditions may
refer to the sewage arrangements and water supply. During this time either party
may withdraw from the sale without liability, as there is no binding agreement.
It is only on the conclusion of missives that the sale and purchase becomes
a legal commitment and withdrawing needs either negotiation with the other party
(who will naturally want all their costs reimbursed) or (failing agreement) reference
to the Court where the defaulting party can expect to pay costs and heavy damages.
Meanwhile, your solicitor will have examined the conditions of the offer to
ensure you are not disadvantaged by accepting them. It is not unusual for three
or four draft missives to ensue before an agreement acceptable to both parties
is obtained. One of the conditions inserted by the buyer may be that they succeed
in selling their existing property and you may wish to qualify acceptance of the
offer until your own property is sold.
However, it is only on the conclusion of these unconditional missives that
the sale and purchase becomes a legal commitment and withdrawing needs either
negotiation with the other party (who will naturally want all their costs reimbursed)
or (failing agreement) reference to the Court where the defaulting party can expect
to pay costs and damages.
Normally, the agreed date of entry will be the day of settlement. After contract,
your solicitor will investigate title and make other detailed enquiries, and provide
a letter of obligation in which they personally undertake to clear the registers
of any adverse entries, so that on the date of entry (or settlement) a disposition
can be registered in the Land Register. The buyer’s solicitor will calculate
the amount of stamp duty which is payable by the buyer. The buyer‘s solicitor
will send the signed disposition to the Stamp Office, Edinburgh and, on return,
to the Register of Sasines.
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