Conveyancing solicitors in Scotland
The process of buying and selling a home in Scotland is slightly different to that in the rest of the United Kingdom.
Selling a home in Scotland
In Scotland, a solicitor or conveyancer takes a more prominent role in the process of selling a home than their English and Welsh counterparts. The most noticeable difference is that many Scottish solicitors also double as Estate Agents meaning that they will also be involved in marketing the property as well as dealing with the legalities of the sale.
The majority of solicitors’ firms that also act as Estate Agents, are members of Solicitors’ and Property Centres. These Centres not only have property showrooms much like Estate Agents but they also have newspapers in which they display and advertise the properties of all their members.
Although Estate Agents do exist in Scotland, they have a far smaller share of the overall housing market than conveyancing solicitors. It is common practise in Scotland for the solicitor to be the first point of contact for someone intending to sell their home.
The system of contracts in Scotland is very different to that in the rest of the UK. Because of the expectation in Scotland for an early conclusion of a contract, having a conveyancing solicitor on board early is imperative. The majority of conveyancing solicitors in Scotland work on a fixed-fee so there is no cost implication to involving them at an early stage of proceedings.
In Scotland, once you have accepted an offer, you are almost home and dry. It is very rare for anybody to pull out before things become official. Once instructed, your solicitor will need to prepare the following:
• Market the property: After first checking the title of the property
• Offers: Deal with any conditional or firm offers
• Paperwork: Collating all of the documentation relating to the property
• Contracts: Negotiating the contract with the buyer’s solicitor on your behalf
Your Conveyancing Solicitor will deal with everything involved in finalising your contract:
• Title deeds: Your solicitor will obtain your title deeds and check them during the course of the transaction
• Land registry: Carry out a search of the land register to check that there are no barriers to the sale of the property going through
• Missives: In Scotland, the term ‘missives’ refers to the letters of negotiation between the buyers’ and sellers’ solicitors. These go towards making up the contract.
• Agreed Entry date: Agreeing a fixed date of entry (known as a completion date elsewhere in the UK) when the property formally changes hands, which both parties work towards
• Paperwork: Following the agreement of “missives” and subsequent contract, the solicitor will finalise the paperwork involved in the legal transfer of the property from the seller to the buyer.
Buying a home in Scotland
Conveyancing solicitors are as central to the process of buying a home in Scotland as they are to selling one. Because of the amount of money involved and the complexity of contracts entered into, most buyers instruct a solicitor early on in the process. Another reason for employing a professional, is that in Scotland, once both parties have agreed on all of the details of the offer, which usually doesn’t take long, the missives are said to be ‘concluded’. At this point it is deemed that both parties have now entered into a legally binding contract, withdrawal from which can incur a hefty compensation bill running into many thousands of pounds. On that basis, you want to be 100% sure that searches and negotiations have been thoroughly carried out and the contract meticulously checked.
The key role of a conveyancing solicitor acting on behalf of the buyer is the negotiating and checking of the contracts and handling the transfer of the payment and Title.
• Finding a mortgage: It is important that a buyer has an agreed mortgage in place before making an offer on a property, solicitors with their links to brokers and lenders are often involved in this process
• Making an offer: Once you have found a property you want to buy and wish to make an offer, your solicitor will ‘note interest’ on your behalf
Noting an offer
In England and Wales, when putting a property on the market, the seller traditionally gets the property valued by two or more estate agents and will typically set the asking price at, or marginally above the average valuation. They will then expect potential buyers to come in with offers either matching or below the asking price. To those selling homes in Scotland, this would seem like a backward way of doing things.
In Scotland, the seller will, in consultation with their solicitor, set a price and invite offers over and above that price. This is known as the upset price. The buyer is unlikely to consider any offers below that set. In times of rising house prices or in areas of high demand, it is not uncommon for properties to end up being sold for ten, twenty, or even thirty per cent more than the initial asking price.
These are the steps you can take when making an offer on a property:
• Conditional offer: You may make what is known as a conditional offer with a proposed date of entry (moving in date). Subject to certain conditions being acceptable to the seller. This would often include a favourable outcome of any survey commissioned by the buyer
• Survey first: Some buyers consider having a property surveyed prior to making an offer but more often than not, buyers nowadays make an offer first and only instruct a surveyor once an offer has been accepted.
Formalising the contract
After receiving a formal offer from a buyer’s solicitor, agreeing the missives and contract, the seller’s solicitor sends the buyer’s solicitor the title deeds to the property, search report plus any other documents requested and agreed in the missives. The seller then signs the transfer of the title deed, known as the ‘disposition’.
• Mortgage: Arrangements are made for the mortgage to be paid over on the agreed Entry date and the seller’s solicitor prepares the Land Transaction Return for you to sign
• Payment Request: The seller’s solicitor will request the funds from your lender to cover the agreed price of the property plus any other associated fees in preparation for the date of entry
• Stamp Duty Land Tax: Your solicitor will then complete the transaction by paying the Stamp Duty Land Tax and arrange for the signed title deed to be registered with the Land Registry
The property has now changed hands.
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