A Client Guide by Simpson & Marwick
At Simpson & Marwick, we believe that clarity is power—especially when it comes to buying or selling property in Scotland.
This guide is designed to help clients understand the Scottish Standard Offer and the Scottish Standard Clauses (Edition 6)—the contractual backbone of most residential property transactions in Scotland. These standardised documents, developed and adopted by the legal profession, aim to simplify, clarify, and streamline the conveyancing process.
Written by Ian C. Ferguson of Mitchells Roberton Ltd on behalf of the Scottish Conveyancers Forum, this version has been thoughtfully adapted for Simpson & Marwick clients into an easily consumable digital form. It explains the key elements of the offer process, outlines your rights and obligations, and demystifies the clauses that underpin the deal.
Whether you’re a first-time buyer or a seasoned property investor, this guide ensures you’re informed, empowered, and ready to move forward with confidence.
Adapted from the Clients Guide originally written by Ian C. Ferguson of Mitchells Roberton Ltd on behalf of the Scottish Conveyancers Forum.
SECTION 1 - INTRODUCTION
PART 1 - The Purpose of Scottish Standard Clauses
The purchase of a house is the most important single financial transaction most clients undertake. It can be a stressful process for both buyer and seller (and sometimes for their Solicitors too!). The advice and assistance of a Solicitor experienced in house purchase and sale and conveyancing is absolutely essential.
An offer for heritable property in Scotland requires to be in writing and there is no binding or enforceable contract until an offer or a qualified acceptance of an offer is met with by a straight acceptance in writing.
Up to the 1970s, Missives comprised around five clauses. However, cases and other developments in the law made the process more complicated. Offers expanded greatly in size and complexity. It was rarely possible or wise to give an unconditional acceptance of an offer. In addition most individual firm’s offers tended to be based on a “wish list” of best possible outcomes for the purchaser. The reality however was that qualified acceptances cut the offer down to size and there then emerged a wording that most Solicitors would “settle for”. The Scottish Standard Clauses have been based on the “settled for” position of what most practitioners usually accepted. The aim is that neither Solicitors nor their clients should have to go through the existing painful process of offer and numerous qualified acceptances.
The offer, any qualified acceptances and the final acceptance together are called “the Missives”. When final agreement is reached the Missives are said to be concluded and there then exists a legally binding contract. Until that point both the Seller and the Purchaser can back out or withdraw from negotiations, without warning, reason or penalty. When Missives are concluded, either party can sue the other in the event of a breach by one or the parties to carry out their part of the bargain.
One of the greatest advantages of the Scottish system in the past was the speed with which Missives were concluded. The system, where each Solicitor had an own style of offer that became longer and longer and more technical, slowed this process. A single style has now been adopted called the Scottish Standard Clauses. The offer appears in Section 2 and defines the Purchaser, Property, Price, Date of Entry (when you obtain your keys) and details of any moveable items included in the sale. Some moveable items are already covered by Clause 1 of the Standard Clauses under the heading “Fixtures, Fittings and Contents”. The offer refers to the Scottish Standard Clauses (Edition 6) and incorporates them as conditions of the offer.
Guidelines issued to Solicitors request that changes should be made for valid reasons of substance e.g. making the offer subject to survey and not for the reasons of style.
The aim is to conclude the Missives with either a straight acceptance of the offer or hopefully not more than one qualified acceptance before a final acceptance. An offer in the Standard style could in theory receive a straight acceptance. Accordingly purchasing clients have to be completely “upfront” with the seller and need to state whether their offer is subject to survey or a loan or conclusion of Missives for the sale of their own property. Complete frankness is required as a Purchaser may find themself bound to a contract thinking the old method would allow them more time. From a Seller’s point of view there is now greater transparency regarding the Purchaser’s position.
The purpose of this Guide is to explain the various clauses so that both house Purchasers and Sellers understand their rights and obligations. It is however only a guide. If a dispute arises as to the meaning of the Missives your Solicitor is the expert to whom to turn. This form of offer and the standard clauses are designed for use with dwelling houses.
Scottish Standard Clauses are a tool to assist more straightforward conclusion of Missives. Speed and ease of conclusion of Missives and clauses with which a Solicitor and their client can become familiar are enormous benefits.
PART 2 - A Scottish Missives Chain
One of the main aims of the Scottish Standard Clauses is to conclude the Missives (contract for sale and purchase) as soon as is possible with either a straight acceptance of the offer or hopefully not more than one qualified acceptance before a final acceptance.
Due to matters that are outwith the control of the legal profession that aim is now only an aim and not realistic at present. One of the main problems with early conclusion of the Missives is that lending decisions are very slow and loan instructions are not being processed with speed by lenders. Buyers and their Solicitors are wary of concluding Missives until they know the buyer has an offer of loan or at least an offer of loan in principle. Prior to the recession buyers would often act on the strength of a “nod” from the lender but when the recession came some “nods” were withdrawn because of new lending criteria, creating uncertainty and lack of confidence by buyers to predict if they will be granted a loan. Solicitors now find it necessary to urge caution on buyers to obtain a definite offer of loan or an offer of loan in principle before concluding Missives.
Another cause of delay is that before the recession purchasers were “purchase driven” to buy the property they wanted and then to sell their own house knowing it would very likely sell without a problem. Now, most buyers will not wish to take that chance and will not conclude Missives for a purchase until they have sold their own house (“sale driven”).
These factors have led to a Scottish Missive Chain. Here is how such a chain works. A purchaser (P1) cannot conclude Missives with the Seller (S1) because P1 has no offer of loan. S1 cannot enter Missives for purchase with Seller 2 till their sale to P1 is concluded and S1’s offer of loan issued and so on up the chain.
Standard Clauses are still helpful as if an offer is submitted in the Scottish Standard Clause style it is now possible that you could receive a straight acceptance. This has forced buyers to be more “upfront” with a seller as the buyer needs to add clauses to their Offer to state whether their offer is subject to (1) survey (2) a loan or (3) conclusion of Missives for the sale of their own property. These clauses being non standard are easy to spot in the Offer.
They ensure frankness by a Purchaser who cannot risk concluding Missives without inserting these additional and conditional clauses. From a Seller’s point of view there is now much greater transparency regarding the Purchaser’s position and what the problem is.
Scottish Standard Missives assist more straightforward conclusion of Missives with few of the delays caused under the old system by non-standard missives. Speed and ease of conclusion of Missives can follow if and when a buyer has their offer of loan and a sale of their own house tied up. Standard clauses with which both the Solicitor and client are familiar remain enormous benefits.
SECTION 2 - A SCOTTISH MISSIVES CHAIN
This is the style of Offer specified in the Deed of Declaration by Struan Alexander Ferguson on behalf of the Scottish Conveyancers Forum dated 8 November 2024
Dear [ ]
For the purposes of this offer and the Scottish Standard Clauses (Edition 6) aftermentioned:
The Purchaser means [ ] residing at [ ].
The Property means [ ] together with any garden, carport, garage, parking space and/or outbuildings pertaining thereto and all other parts and pertinents.
The Price is [ ] POUNDS (£[ ]) STERLING.
The Date of Entry shall be [ ] or such other date as may be mutually agreed in writing.
The Purchaser hereby offers to purchase from your client (hereinafter referred to as “the Seller”) the Property at the Price and upon the conditions contained in the Scottish Standard Clauses (Edition 6) specified in the Deed of Declaration by the Scottish Conveyancers Forum dated 8 November and registered in the Books of Council and Session for preservation on both 2024, and upon the following further conditions:-
(First) The Price will include the following additional items (if any): [ ]
(Second) This offer unless earlier withdrawn is open for verbal acceptance by [ ] (insert time and date) with written acceptance reaching us no later than [ ] on the (insert time and day) working day following the date of this offer and if not so accepted shall be deemed to be withdrawn.
(Third) This offer and any contract to follow hereon are entirely conditional upon (a) a satisfactory survey report and (b) a satisfactory valuation report being obtained by the Purchaser in respect of the Property. The Purchaser and their lenders shall be the sole judges as to what constitutes satisfactory reports.
(Fourth) This Offer and any contract to follow hereon is entirely conditional and suspensive upon the Purchaser’s sale of their existing property.
(Fifth) This Offer and any contract to follow hereon is entirely conditional and suspensive upon the Purchaser obtaining a satisfactory offer of loan finance (mortgage) and the Purchaser shall be the sole judge as to what constitutes a satisfactory offer.
SECTION 3 - THE SCOTTISH STANDARD CLAUSES (EDITION 6)
This is the Schedule specified in the Deed of Declaration by Struan Alexander Ferguson on behalf of the Scottish Conveyancers Forum dated 8 November 2024
SCOTTISH STANDARD CLAUSES (EDITION 6)
INTERPRETATION
In these Clauses:-
“Date of Settlement” or “settlement” means the date on which settlement is actually effected whether that is the Date of Entry or not;
“the Missives” means the contract of purchase and sale concluded between the Purchaser and the Seller of which the Offer incorporating reference to these Clauses forms part (“the Offer”);
The terms “the Purchaser”, “the Seller”, “the Property”, “the Price” and “the Date of Entry” have the meanings set out in the Offer or other document incorporating reference to these Clauses;
“the 2012 Act” means the Land Registration etc (Scotland) Act 2012;
“working day” means any day on which clearing banks in Edinburgh, Glasgow and London are open for normal business; and
“the Building” means, where applicable, the larger building or tenement of which the Property forms part.
A reference to one gender includes all other genders, and words in the singular include the plural (and vice versa).
Any intimation shall be in writing (which shall include, for avoidance of doubt, faxes or emails).
Where any intimation must be given within a specified period, time will be of the essence.
1 FIXTURES, FITTINGS & CONTENTS
1.1The Property is sold with:
1.1.1all heritable fittings and fixtures;
1.1.2all items of whatever nature fixed or fitted to the Property the removal of which would materially damage the fabric or decoration of the Property;
1.1.3all items stated to be included in the sales particulars or advertisements made available to the Purchaser;
1.1.4the following insofar as any were in or pertained to the Property when viewed by the Purchaser:
- garden shed or hut, greenhouse, summerhouse;
- all growing plants, shrubs, trees (except those in plant pots); artificial grass;
- all types of blinds, pelmets, curtain rails and runners, curtain poles and rings thereon;
- all carpets and floor coverings (but excluding loose rugs), stair carpet fixings; fitted bedroom furniture; all fixed bathroom and cloakroom mirrors, bathroom and toilet fittings;
- kitchen units; all cookers, hobs, ovens, washing machines, dishwashers, fridges and freezers if integral to or encased within matching units;
- extractor hoods, extractor fans, electric storage heaters, electric fires,
- electric light fittings (including all fluorescent lighting, external lighting, wall lights, dimmer switches and bulbs and bulb holders but not shades);
- television aerials and associated cables and sockets, satellite dishes; loft ladders; rotary clothes driers; burglar alarm, other security systems and associated equipment; secondary glazing; fixed shelving;
- fireplace surround units, fire grates, fenders and associated ironmongery;
- brackets or similar fittings for any wall mounted television (but not the television itself);
- smart thermostats or similar devices providing a heating control system;
- integrated sound systems including fitted speakers and wiring (but excluding any amplifier);
- electric car charging points; and smoke alarms, CO alarms and heat sensors.
1.1.5oil in any storage tank and gas in any gas cylinders or tank remaining at the Date of Settlement.
1.1.6Where a wheeled bin or other receptacle for the collection of refuse is provided free of charge by the Local Authority or other body responsible for the collection of refuse, the Seller will ensure that the said bin or receptacle is left at the Property for the Purchaser failing which the Seller will meet the cost of replacing same.
1.2The Seller warrants that at the Date of Settlement all items included in the Price are owned by the Seller, are or will be free of all debt, and are not the subject of any litigation.
1.3The Seller undertakes to remove all moveables from the Property not otherwise included in the Price as at the Date of Settlement.
1.4For the avoidance of doubt, the Seller gives no warranty as to the working or other nature of any electrical or gas appliance, whether of a moveable or integrated nature included in
the Price. Any such appliance is sold as seen.
2 AWARENESS OF CIRCUMSTANCES AFFECTING THE PROPERTY
2.1So far as the Seller is aware (but declaring that the Seller has made no enquiry or investigation into such matters) the Property (including in respect of Clause 2.1.3 the Building,
if appropriate) is not affected by:
2.1.1any Notices of Payment of Improvement/Repairs Grants;
2.1.2(nor has been affected by) flooding from any river or watercourse which has taken place within the last 5 years;
2.1.3other than as disclosed in the Home Report for the Property any structural defects; wet rot; dry rot; rising or penetrating damp; woodworm; or other
infestation by insect or other animal;
2.1.4Japanese knotweed.
3 SPECIALIST REPORTS
3.1Any guarantees in force at the Date of Entry in respect of (i) treatments which have been carried out to the Property (or to the Building, if appropriate) for the eradication of timber infestation, dry rot, wet rot, rising damp or other such defects, and/or (ii) insulation and double glazing, together with all supporting or related estimates, survey reports and other papers (“the Guarantees”) will be exhibited on conclusion of the Missives and delivered at settlement.
3.2The Seller confirms that they are not aware of anything having been done or omitted to be done which might invalidate the Guarantees.
3.3If requested, and insofar as necessary and competent, the Guarantees will be assigned to the Purchaser at the Purchaser’s expense.
4 CENTRAL HEATING AND SYSTEMS
4.1The Seller undertakes that any systems (or parts thereof) of a working nature (including central heating, water, drainage, electric and gas systems) forming part of the Property will be in working order commensurate with age as at the Date of Settlement.
4.2The Seller will make good any defect which prevents any such system being in such order provided said defect is intimated in writing within 5 working days of settlement. Failing such intimation, the Purchaser will be deemed to be satisfied as to the position.
4.3The Seller will only be responsible for carrying out any necessary repairs to put any such system into such order and shall have no liability for any element of upgrading (except to the extent such upgrading is required to put any such system into such order).
4.4The lack of any regular service or maintenance of any system or the fact that it may no longer comply with current installation regulations will not, of itself, be deemed to be a defect.
4.5The Purchaser will be entitled to execute any necessary repairs at the expense of the Seller without reference to the Seller (i) in the event of an emergency; (ii) in the event that the Seller’s agents do not inspect the alleged defects within 5 working days of intimation; or (iii) in the event that any necessary repairs are not carried out within 5 working days of inspection.
4.6The Seller confirms that they have received no notice or intimation from any third party that any such system (or any part thereof) is in an unsafe or dangerous condition.
5 DEVELOPMENT
5.1The Seller warrants that they have not served or been served with nor received any neighbour notification notice issued in terms of planning legislation in respect of any development. This warranty shall not apply (i) in respect of a development which has been completed, (ii) where any planning permission has lapsed, or (iii) where an application for planning consent has been refused or withdrawn. In the event of any such notice being served on or received by the Seller prior to the Date of Settlement, the Seller will forward such notice to the Purchaser within 5 working days of receipt of such notice.
5.2Without prejudice to the foregoing, the Seller warrants that they have no knowledge of any development proposal which could be reasonably deemed to materially affect the value or amenity of the Property.
6 STATUTORY NOTICES
6.1Any Local Authority (or other public body) notices or orders calling for repairs or other works to the Property dated prior to or on the date of conclusion of the Missives (or any other work affecting the Property agreed to or authorised by the Seller outstanding at the Date of Entry) will be the responsibility of the Seller. Liability under this condition will subsist until met and will not be avoided by the issue of a replacement notice or order.
6.2The Seller warrants that they have not received written notification of, approved, entered into or authorised any scheme of common repairs or improvement affecting the Building instigated or administered by any Local Authority (or other public body). Where the Seller approves, enters into or authorises any such scheme or where any such scheme is instructed, the Seller will remain liable for their share of the cost of such works. Details of any such scheme will be disclosed to the Purchaser prior to settlement. The Seller undertakes not to enter into, approve or otherwise authorise any such scheme prior to settlement without the consent of the Purchaser.
6.3When any work in terms of Clauses 6.1 or 6.2 above is incomplete or unpaid for at the Date of Settlement the Purchaser will be entitled to retain from the Price a sum equivalent to the estimated cost of the Seller’s share of such works (which estimate shall be augmented by 25%). Such retention shall be held in an interest bearing account by the Purchaser’s solicitor pending settlement of the Seller’s liability. The retention shall not be released or intromitted with without the written authority of the solicitors for the Purchaser and the Seller. Any shortfall will remain the liability of the Seller.
6.4On issue of invoices for such works in terms of Clauses 6.1 and/or 6.2 above by the Local Authority or other authorised party the retention shall be released to make payment of such invoices as soon as reasonably practical.
6.5Notwithstanding any other term within the Missives, Clause 6 will remain in full force and effect without limit of time and may be founded upon until implemented.
6.6Without prejudice to the above, the Purchaser may retain from the Price such sum as is reasonably required to meet any costs for which they may be contingently liable under Section 10(2) of the Title Conditions (Scotland) Act 2003 or Section 12(2) of the Tenements (Scotland) Act 2004 as amended. Such retention will be held in an interest bearing account by the Purchaser’s solicitor pending settlement of that liability. The retention will not be released or intromitted with without the written authority of the solicitors for both the Seller and the Purchaser. Any shortfall will remain the liability of the Seller.
6.7Prior to the Date of Entry the Seller will provide full details of any common repairs in respect of which a Notice of Potential Liability for Costs has been or is to be registered.
7 PROPERTY MANAGEMENT AND FACTORS
7.1Where the Property is part of any larger subjects (the Building or otherwise) or development, it is a condition that:
7.1.1common charges will be apportioned between the Seller and the Purchaser as at the Date of Entry on the basis that the Seller will be responsible for all common repairs and improvements carried out, instructed or authorised on or prior to the Date of Entry;
7.1.2there are no major repairs or improvements currently proposed (by the development factors, managing agents or a co-owner of the Building in writing to the Seller), instructed, authorised or completed but not yet paid for in respect of the Property or the larger subjects or the Building or development of which it forms part;
7.1.3the Seller will provide the Purchaser with full details of any factoring and block insurance arrangements affecting the Property. The application for information to implement this Clause will be in accordance with the style Letter to Factors/Managing Agents currently available on the PSG website psglegal.co.uk.
7.2All other outgoings and charges payable in respect of the Property will be apportioned as at the Date of Entry.
7.3The Seller assigns to the Purchaser at settlement all rights the Seller may have as homeowner arising from any and all information provided to the Seller by any factor or managing agent in relation to the Property.
8 ALTERATIONS
8.1Where there have been additions or alterations (including change of use) completed to the Property within 20 years of the Date of Entry, or if the Property has been erected within that period, then the Seller will exhibit before and deliver at the Date of Entry:
8.1.1all necessary Listed Building Consents and either:
8.1.1.1all necessary stamped building warrant drawings (where available) and Certificates of Completion (or, if applicable, Notices of Acceptance of Completion Certificate); or
8.1.1.2an unqualified Property Inspection Report, Letter of Comfort, or equivalent provided by the relevant Local Authority or other mutually agreed supplier.
8.2All Planning Permissions or other Local Authority consents necessary for additions or alterations (including change of use) completed to the Property (or if the Property has been erected) within 10 years of the Date of Entry will be exhibited before and delivered at the Date of Entry.
8.3The Seller warrants (i) that any additions or alterations as provided for in clause 8.1 carried out to the Property have been in a state of substantial completion for a period of not less than 12 weeks prior to the date of conclusion of the Missives; and (ii) that no valid objection to such works was made at any time by a person with title and interest to do so under a valid real burden.
8.4There are no planning conditions of a continuing nature which restrict or prohibit the current use of the Property.
8.5Without prejudice to the terms of the foregoing or Clause 34.3, the Seller warrants that they have carried out no additions or alterations to the Property requiring any local authority permission or warrant during their period of ownership of the Property.
9 DISPUTES/LITIGATION
9.1The Seller warrants that neither the Property nor the Seller’s title to same are affected by or are under consideration in any court proceedings or other litigation.
9.2There are no current disputes with neighbouring proprietors or occupiers, or any other parties, relating to access, title or common property.
10 ACCESS
10.1The Seller will after conclusion of the Missives and upon receipt of reasonable notice by the Purchaser give access to the Purchaser or their agents to the Property at reasonable times for the purposes of inspection, measurement or the provision of quotations. This right of access however shall not be exercised on more than 2 occasions without the consent of the Seller.
11 UTILITIES AND SERVICES
11.1Unless the services have been terminated (which termination shall be intimated to the Purchaser prior to conclusion of the Missives), the Seller will co-operate in the transfer of any gas, electricity, telephone or other service supplies to the Purchaser. The Seller will not be responsible for any transfer charges incurred by the Purchaser.
11.2Roads
11.2.1The Seller warrants that:-
EITHER
All roadways, footpaths and kerbs ex adverso the Property have been made up and paid for and are maintained by the Local Authority
OR
There is a private access road to and from the Property from a roadway maintained by the Local Authority.
11.3Water
11.3.1The Seller warrants that:-
EITHER
The Property is connected to the mains water supply
OR
The Property is connected to a private water supply system and the water supply is of sufficient quality to comply with the bacteriological and chemical parameters laid down in the Private Water Supply (Scotland) Regulations 2006 as amended. So far as the Seller is aware the supply is adequate in quantity at all times for all normal domestic purposes and for the present use of the Property. The Seller will deliver prior to the Date of Entry a report dated not earlier than 6 months prior to the Date of Entry from the Local Authority or ,where applicable the Public Analyst, evidencing that the said supply meets the said Regulations.
11.4Drainage
11.4.1The Seller warrants that:-
EITHER
The Property is connected to the public sewer and drainage system
OR
The Property is connected to a private drainage system comprising a septic tank, treatment plant, or reed bed with relative outfall pipe and/or soakaway and all relative pipes, drains and connections ("the Drainage System"). There will be exhibited prior to and delivered at the Date of Entry evidence that the Drainage System relating to the Property is either registered or licensed with the Scottish Environment Protection Agency or any other appropriate authority under the Water Environment (Controlled Activities) (Scotland) Regulations 2011 as amended. The Seller warrants that they have done nothing nor has any event occurred to contravene or prejudice the terms of the registration or licence.
11.5Meters
11.5.1 The Seller warrants that all meters for utilities are situated within the Property.
12 BREACH OF CONTRACT BY SELLER
12.1If at the Date of Entry the Seller does not give vacant possession or otherwise fails to implement any material obligations due by the Seller in terms of the Missives, then the Purchaser will be entitled (provided the Purchaser is in a position to settle the transaction on the Date of Entry) to claim damages for any reasonable loss incurred by the Purchaser arising from such failure.
12.2In the event that the Seller’s breach of contract continues for 14 days after the Date of Entry the Purchaser will be entitled to treat that breach as repudiation and to rescind the Missives on giving the Seller notice to that effect.
12.3This condition (i) will apply without prejudice to any other rights or remedies available to the Purchaser, and (ii) will not apply in the event of the Seller’s failure to settle being attributable to the fault of the Purchaser.
13 BREACH OF CONTRACT BY PURCHASER
13.1The Price will be paid in full on the due date.
13.2The Seller will not be obliged to give vacant possession of the Property except as against payment of the Price and any interest or losses due as aftermentioned.
13.3If the Price is paid after the due date, whether in whole or in part, the Seller will be entitled to payment from the Purchaser, at the Seller’s option, of one (but not both) of:
13.3.1ordinary damages in respect of all proper and reasonable losses arising out of the late payment of the Price (which includes but is not limited to Wasted Expenditure); or
13.3.2interest on the amount of the Price outstanding at the Prescribed Rate from the due date until the date when payment is made.
13.4If the Price remains unpaid in whole or in part at any time more than 14 days after the due date, the Seller will be entitled to rescind the Missives, and to payment from the Purchaser, at the Seller’s option, of one (but not both) of:
13.4.1ordinary damages in respect of all proper and reasonable losses arising out of the non-payment of the Price and failure of the Missives (which includes but is not limited to Wasted Expenditure); or
13.4.2liquidated damages, payable on the end date, calculated as the amount of interest which would have run on the amount of the Price outstanding at the Prescribed Rate from the due date until the end date (under deduction of any amount by which the Price obtained by the Seller on a re-sale of the Property exceeds the Price).
13.5In this Clause:
13.5.1The “due date” means whichever is the later of:
(i) the Date of Entry; or
(ii) the date on which payment of the Price was due having regard to the circumstances of the case including any entitlement to withhold payment owing to non-performance by the Seller.
13.5.2The “end date” means whichever is the earlier of:
(i) the date falling 12 months after the due date; or
(ii) where the Property is re-sold following rescission, the date of entry under the contract of re-sale.
13.5.3“Wasted Expenditure” means the aggregate of:
(i) any capital loss sustained by the Seller on the resale of the Property being the difference between the Price under the Missives and the resale price under any such resale;
(ii) any estate agency, marketing and other advertising expenses properly incurred in connection with the resale;
(iii) any legal expenses properly incurred in connection with the resale;
(iv) any expenses in connection with the cancellation of removal of furniture, storage of furniture and transfer or retransfer of furniture properly incurred as a result of the Purchaser’s breach of contract; and
(v) any bridging loan costs (including arrangement charge and interest) incurred by the Seller in respect of any purchase transaction which Seller requires to complete under concluded Missives.
13.5.4“Prescribed Rate” means the rate of 4% above The Royal Bank of Scotland plc base rate from time to time in force.
14 NEW HOME WARRANTY SCHEMES
14.1If the Property was constructed or converted within 10 years prior to the Date of Entry, there will be delivered at settlement appropriate NHBC documentation or such equivalent new home warranty documentation as provided by any alternative warranty provider as approved by and acceptable to the Purchaser's Lenders.
14.2The Seller warrants that no claims have been made, reported, or are pending under any new home warranty scheme.
15 TITLE CONDITIONS
15.1Any part of the Property which is common or mutual with any adjoining property (including the roof and roof systems; rhones and downpipes; drains and boundary walls; fences or divisions) falls to be maintained, renewed and upheld by respective proprietors on an equitable basis.
15.2Any reservation of minerals will be subject to conditions as to adequate compensation and will not include any right to enter the Property or lower its surface. The minerals are included in the Property so far as the Seller has right to same.
15.3The existing use of the Property is in conformity with the title to same. There are no unusual, unduly onerous or restrictive burdens, conditions or servitudes affecting the Property.
15.4There is no outstanding liability for any part of the cost of constructing walls, fences, roadways, footpaths or sewers adjoining or serving the Property.
15.5The Property has the benefit of all such servitudes and wayleaves as are required for its proper and existing use (including but not limited to vehicular access, any private water supply or the Drainage System).
15.6If the title to the Property discloses a position other than as stated in this Clause 15, the Purchaser (regardless of their previous state of knowledge) will be entitled to resile from the Missives without penalty to either party but only provided (i) the Purchaser intimates their intention to exercise this right within 10 working days of receipt of the title to the Property; and (ii) such matters intimated as prejudicial are not rectified or clarified to the Purchaser’s satisfaction (acting reasonably) by the Date of Entry or within 6 weeks from the date of such intimation whichever is earlier. The Purchaser’s right to resile shall be their sole option in terms of the Missives. Failing the exercise of such right to resile, (i) the Purchaser shall be deemed satisfied as to the position, and (ii) the Seller shall be deemed not to be in breach.
16 AWARENESS OF ENCUMBRANCES
16.1The Seller is not aware of any encumbrances as defined in Section 9 of the 2012 Act affecting the Property which are not disclosed in the title to the Property.
17 ADVANCE NOTICES
17.1An “Advance Notice” for the purposes of the Missives means an advance notice as defined in Section 56 of the 2012 Act.
17.2The Seller will apply to the Keeper for an Advance Notice for the Disposition, utilising the details contained within that Disposition, to be either (i) entered on the application record for the Property or (ii) recorded in the Register of Sasines no earlier than 10 working days prior to the Date of Entry. The cost of the Advance Notice for the Disposition will be met by the Seller.
17.3 The Seller consents to the Purchaser applying to the Keeper for Advance Notices for any deeds which the Purchaser intends to grant in relation to the Property. The cost of any Advance Notices which the Purchaser applies for will be met by the Purchaser.
17.4 If the Seller rescinds the Missives in the circumstances set out in Clause 13 above the Purchaser consents to the discharge of the Advance Notice for the Disposition and the Purchaser confirms that it will immediately discharge at their own cost any Advance Notice submitted by them if requested to do so by the Seller.
17.5 If settlement is likely to occur after the Date of Entry, the Seller, if requested to do so by the Purchaser, will apply for a further Advance Notice for the Disposition and the cost of any additional Advance Notices will be met:
17.5.1 by the Seller, if the delay in settlement is due to any failure or breach by or on behalf of the Seller to implement its obligations under the Missives on time; or
17.5.2 by the Purchaser, if the delay in settlement is due to any failure or breach by or on behalf of the Purchaser to implement its obligation under the Missives on time.
17.6 The Seller's Solicitors will not provide any letter of obligation undertaking to clear the records of any deed, decree or diligence. However, the Seller shall procure that their Solicitors will grant a Letter of Undertaking obliging them to either (a) deliver within 28 days of the Date of Settlement to the Purchaser’s Solicitors a Discharge of any outstanding Standard Security granted by the Seller over the Property together with relative Land Registration Application Form or (b) exhibit within 35 days of the Date of Settlement a copy of the Title Sheet of the Property showing that any security disclosed in the Legal Report exhibited prior to settlement has been discharged.
18 SETTLEMENT/REGISTRATION OF TITLE
18.1 The Price will be payable on the Date of Entry in exchange for:
(i) a good and marketable title;
(ii) a validly executed Disposition in favour of the Purchaser or their nominee(s);
(iii) vacant possession of the Property;
(iv) if applicable, the Letter of Undertaking provided for in Clause 17.6 and
(v) all keys held by the Seller for the Property (to include keys for all lockable external doors and garages) and also any code for any operational alarm system; together with:
18.1.1 If the provisions of the 2012 Act relating to a first registration apply:-
18.1.1.1 a Legal Report (obtained at the cost of the Seller) brought down to a date not more than 3 working days prior to the Date of Entry but subsequent to the commencement of the protected period provided by the Advance Notice aftermentioned (which Report will show (a) no entries adverse to the Seller's interest in the Property; (b) any Advance Notice for the Disposition in favour of the Purchaser or their nominees ; and (c) no other Advance Notices other than those submitted by the Purchaser); and
18.1.1.2 such documents and evidence, including a plan, as the Keeper may require to enable the Keeper to create the Title Sheet of the Property to disclose the Purchaser or their nominees as the registered proprietor of the Property without exclusion or limitation of warranty in terms of Section 75 of the 2012 Act.
Such documents will include (unless the Property comprises only part of a tenement or flatted building and does not include an area of ground specifically included in the title to that part) a plan or bounding description sufficient to enable the whole Property to be identified on the cadastral map and evidence (such as a Plans Report Level 3 or equivalent) that (i) the description of the whole Property as contained in the title deeds is habile to include the whole of the occupied extent and (ii) there is no conflict between the extent of the Property and registered cadastral units.
18.1.2 If the title to the Property is already registered in terms of the 2012 Act or in terms of the Land Registration (Scotland) Act 1979 (“the 1979 Act ”), there will be exhibited in exchange for the Price a copy of the Title Sheet of the Property containing no exclusion or limitation of warranty in terms of Section 75 of the 2012 Act or exclusion of indemnity in terms of Section 12(2) of the 1979 Act with all necessary links in title evidencing the Seller’s exclusive ownership of the Property together with:
18.1.2.1 a Legal Report obtained at the cost of the Seller brought down to a date not more than 3 working days prior to the Date of Entry but subsequent to the commencement of the protected period provided by the Advance Notice aftermentioned (which Reports will show (a) no entries adverse to the Seller's interest in the Property; (b) any Advance Notice for the Disposition in favour of the Purchaser or their nominees ; and (c) no other Advance Notices other than those submitted by the Purchaser); and
18.1.2.2 such documents and evidence as the Keeper may require to enable the Keeper to update the Title Sheet of the Property to disclose the Purchaser or their nominees as the registered proprietor of the Property without exclusion or limitation of warranty under Section 75 of the 2012 Act.
18.1.3 Where Clauses 18.1.1 or 18.1.2 apply the updated or newly created Title Sheet of the Property will contain no exclusion or limitation of warranty in terms of Section 75 of the 2012 Act and will disclose no entry, deed or diligence (including any Notice of Potential Liability for costs under the Tenements (Scotland) Act 2004 or the Title Conditions (Scotland) Act 2003) prejudicial to the Purchaser’s interest other than such as have been created by or against the Purchaser or have been disclosed to and accepted in writing by the Purchaser prior to the Date of Settlement.
18.1.4 If an Application for First Registration of the title to the Property is still being processed by the Keeper, the Seller warrants (i) that no requisitions have been made by the Keeper but not implemented, and (ii) the Keeper has not indicated any concern with the Application such as might result in any exclusion or limitation of warranty under the 2012 Act
or exclusion of indemnity in terms of the 1979 Act, refusal to register, or rejection of the said application.
18.1.5 Without prejudice to the above, the Seller warrants that the Property is not affected by any entry in the Register of Community Interests in Land.
18.1.6 The Purchaser will, on request, provide to the Seller the Application Number and Title Number allocated by the Registers of Scotland to an Application for First Registration of the title to the Property.
18.1.7 Notwithstanding any other term within the Missives, this Clause shall remain in full force and effect without limit of time and may be founded upon until implemented.
18.2.1 The Price will be paid by same day electronic transfer by the Purchaser’s solicitors to the Seller’s solicitors’ clients account in exchange for the items referred to in Clause 18.1. The transfer shall be at the Purchaser’s expense.
18.2.2 A payment not made in accordance with the foregoing provision may be refused.
18.2.3 The Price will not be deemed paid until such time as same day credit on it is available to the Seller’s solicitors in accordance with normal banking procedure.
19 INCORPORATED BODIES
19.1 If the Seller is a limited company or Limited Liability Partnership (registered in the United Kingdom), then prior to the Date of Entry the Seller will exhibit searches in the Register of Charges and company file of the Seller brought down to a date not more than 3 working days prior to the Date of Entry which searches will confirm (a) that there is no notice regarding the appointment of a receiver, administrator or liquidator, winding up, striking off or change of name affecting the Seller and (b) the full names of the present directors and secretary of the Seller.
19.2 In the event of such searches disclosing any floating charge affecting the Property at the Date of Entry, there will be delivered a certificate of non-crystallisation of such floating
charge granted by the chargeholder, dated not more than 3 working days prior to the Date of Entry, confirming that no steps have been taken to crystallise such floating charge and releasing the Property from the floating charge.
19.3 Within 3 months after the date of settlement such searches against the Seller will be delivered or exhibited brought down to a date 22 days after the date of registration of the Disposition in favour of the Purchaser or their nominees or 36 days after the Date of Entry whichever is the earlier disclosing no entries prejudicial to the registration of the said Disposition.
19.4 The Seller will exhibit or deliver clear searches in the Register of Charges and company files of all companies disclosed as owner or former owner of the Property, in any Land Certificate, copy Title Sheet or Legal Reports, brought down in each case to a date 22 days after registration in the Land Register of the deed divesting the relevant company of its interest, disclosing no entries prejudicial to the registration of the said deed. The Seller's solicitors will not provide a letter of obligation in respect of such searches.
19.5 Without prejudice to Clause 36, the Seller is not a corporate body registered in any jurisdiction outwith the United Kingdom.
20 RISK/INSURANCE
20.1 The Seller will maintain the Property in its present condition (ie as at the date of the Offer ), fair wear and tear excepted, until the time at which settlement takes place.
20.2 The risk of damage to or destruction of the Property howsoever caused will remain with the Seller until the time at which settlement takes place.
20.3 In the event of the Property being destroyed or materially damaged prior to the time at which settlement takes place, either the Purchaser or the Seller will have the right to rescind the Missives without penalty to the other.
20.4 The Seller warrants that the current buildings insurance obtained in respect of the Property has been granted on normal reasonable terms appropriate for the Property.
21 PROPERTY ENQUIRY CERTIFICATE
21.1 A Property Enquiry Certificate (“PEC”) dated not earlier than 3 months prior to the Date of Entry will be exhibited at least 5 working days prior to the Date of Entry. The PEC shall require to report on all matters required for the Purchaser’s solicitors to comply with the current edition of the UK Finance Mortgage Lenders’ Handbook (Scotland).
21.2 If the PEC discloses any matter which is materially prejudicial to the Purchaser or the Property, the Purchaser will be entitled to resile from the Missives and that without penalty to either party but only provided that (i) the Purchaser intimates their intention to exercise this right within 10 working days of receipt of the PEC; and (ii) such matters intimated as being prejudicial are not rectified or clarified to the Purchaser’s satisfaction (acting reasonably) by the Date of Entry or within 6 weeks from the date of such intimation whichever is earlier. The Purchaser’s right to resile shall be their sole option in terms of the Missives. Failing the exercise of such right to resile, (i) the Purchaser will be deemed satisfied as to the position, and (ii) the Seller will be deemed not to be in breach.
21.3 For the avoidance of doubt, should the Property be sited within a Conservation Area; form part of or be a Listed Building; be subject to the Local Authority Windows Policy or an Article 4 Direction; or be affected by a Tree Preservation Order, this will not be deemed to be a prejudicial ground entitling the Purchaser to so resile.
22 COAL AUTHORITY REPORT
22.1 If the Coal Authority or similar statutory body recommends that a Coal Mining Report is obtained for the Property, then such report will be exhibited prior to settlement. In the event that such report discloses a position which is materially prejudicial to the Property or the Purchaser’s proposed use of same, then the Purchaser will be entitled to resile from the Missives and that without penalty to either party only provided (i) the Purchaser intimates their intention to exercise this right in writing within 10 working days of receipt of the said report; and (ii) such matters intimated as being prejudicial are not rectified or clarified to the Purchaser’s satisfaction (acting reasonably) by the Date of Entry or within 6 weeks from the date of such intimation whichever is earlier. The Purchaser’s right to resile shall be their sole option in terms of the Missives. Failing the exercise of such right to resile, (i) the Purchaser will be deemed satisfied as to the position, and (ii) the Seller will be deemed not to be in breach.
23 OCCUPANCY RIGHTS
23.1At the Date of Entry the Property will not be affected by any occupancy rights as defined in the Matrimonial Homes (Family Protection) (Scotland) Act 1981 as amended or the Civil Partnership Act 2004 as amended.
24 SUPERSESSION OF MISSIVES
24.1 The Missives will cease to be enforceable after a period of 2 years from the Date of Settlement except insofar as (i) they are founded upon in any court proceedings which have commenced within the said period or (ii) this provision is excluded in terms of any other condition of the Missives.
25 ADDRESS DETAILS
25.1 The Seller and the Purchaser irrevocably authorise their respective solicitors to release their current address on demand.
26 LIMITATION OF CLAIMS
26.1No claim will be available or competent to the Purchaser in respect of (i) matters disclosed to and accepted by the Purchaser prior to the Date of Entry or (ii) any items or claims amounting in aggregate value to less than £500.
27 ENTIRE AGREEMENT
27.1The Missives (with the exception of items relied upon by virtue of Clauses 1.1.3 and 31) will represent and express the full and complete agreement between the Seller and the Purchaser relating to the sale/purchase of the Property at the date of conclusion of the Missives and will supersede any previous agreement between the Seller and the Purchaser relating to it. Neither the Seller nor the Purchaser has been induced to enter into the Missives on account of any prior warranties or representations.
28 MINIMUM PERIOD OF OWNERSHIP/POSSESSION
28.1The Seller warrants that they have owned the Property for at least 6 months prior to the date of the Offer or other document incorporating reference to these Clauses.
28.2The Seller confirms that they are currently in possession of the Property and have been in possession of the Property openly, peaceably and without judicial interruption for a continuous period of at least one year.
28.3The foregoing provisions shall not apply where the Seller is a personal representative or executor of the proprietor; or is an institutional heritable creditor exercising its power of sale; or is a receiver, trustee in sequestration, administrator or liquidator.
29 GREEN DEAL ETC
29.1The Property is not subject to a green deal plan as defined in Section 1 of the Energy Act 2011.
29.2The Seller shall deliver at or prior to settlement an Energy Performance Certificate in compliance with The Energy Performance of Buildings (Scotland) Regulations 2008, as amended.
29.3The Property does not benefit from, contain, or have attached to it any solar panels or other electricity micro-generation installation.
30 CROFTING
30.1The provisions of the Crofters (Scotland) Act 1993, as amended, or the Crofting Reform (Scotland) Act 2010 do not apply to the Property.
30.2Any Decrofting Direction or Resumption Order under the said Crofting Acts relating to the Property shall be exhibited prior to and delivered at Settlement together with evidence that the said Direction or Order has been registered on the Crofting Register (where applicable).
31 HOME REPORTS
31.1The provisions of Clause 27.1 will not apply in respect of the terms of the Home Report (whether original, updated or otherwise) provided by the Seller in respect of the Property.
31.2The Seller confirms that the information in the Property Questionnaire section of the said Home Report is true and correct to the best of the Seller’s knowledge and belief.
31.3The Seller confirms that the information provided by them within the said Property Questionnaire remains the same as at the date of the Offer as at the date of issue of the said Property Questionnaire.
32 EXECUTION BY ATTORNEY
In the event that the Disposition referred to in Clause 18.1 is executed by an Attorney on behalf of the Seller a certified copy of the relevant Power of Attorney properly authorising such execution will be exhibited to the Purchaser’s solicitors no less than 7 days prior to the Date of Entry.
33 THIRD PARTY RIGHTS
The Missives do not create any rights in favour of third parties under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce or otherwise invoke any provision of the Missives.
34 COUNCIL TAX
34.1The Seller warrants that they have not applied for a reduction in Council Tax due to vacant property relief prior to the Date of Entry.
34.2The Seller undertakes to intimate the sale of the Property to the relevant Council Tax authority within 21 days of the Date of Settlement.
34.3The Seller warrants that there have been no alterations or other works to the Property, during the Seller’s ownership of the Property, which would result in any change of the Council Tax band for the Property in terms of the Council Tax (Alteration of Lists and Appeals) (Scotland) Regulations 1993 as a result of the sale to the Purchaser or any earlier sale.
35 TITLE INDEMNITY POLICIES
35.1In the event that the Seller agrees to procure a policy of indemnity insurance for the benefit of the Purchaser:
35.1.1the Seller warrants that they have made (or will make) full and correct disclosure of all material facts to the relevant insurers.
35.1.2the Seller undertakes to pay any premium at or prior to settlement.
35.1.3the Seller confirms that they are not aware of any ground on which the insurers could avoid liability under such policy, and
35.1.4the terms of Clause 24 shall not apply to this Clause.
35.2Where the Seller exhibits an existing policy of indemnity insurance in relation to the Property;
35.2.1the Seller confirms that they are not aware of any ground on which the insurers could avoid liability under such policy and;
35.2.2the Seller confirms that the insurers have not sought to avoid or disclaim liability in respect of any claim under such policy.
36 OVERSEAS ENTITIES
36.1Where the Seller is or includes an overseas entity whose title to the Property was registered in the Land Register on or after 8 December 2014, the overseas entity warrants that:
36.1.1it is a registered overseas entity or exempt overseas entity as at the date of the Offer; and
36.1.2it will be a registered overseas entity or exempt overseas entity as at the date of delivery of the Disposition.
36.2Where the Purchaser is or includes an overseas entity, the overseas entity warrants that it is a registered overseas entity or an exempt overseas entity as at the date of the Offer.
36.3In either of the cases at 36.1 or 36.2 above, the overseas entity will obtain at its own expense and exhibit or deliver to the Purchaser or the Seller (as the case may be):
36.3.1not later than at conclusion of the Missives, a search in the Register of Overseas Entities against the overseas entity, and
36.3.2as close as practicable to Settlement, an updated search.
36.4For the purposes of this Clause 36, the following terms have the meaning given to them by Schedule 1A paragraph 9 of the 2012 Act: ‘exempt overseas entity’; ‘overseas entity’; ‘Register of Overseas Entities’ and ‘registered overseas entity’.
SECTION 4 EXPLANATIONS OF THE SCOTTISH STANDARD CLAUSES (EDITION 6)
1 FIXTURES, FITTINGS & CONTENTS
The Offer should specify any moveable items included in the sale.
Heritable fixtures and fixtures are items of a moveable character that have become “heritable” by attachment to the Property and have therefore become part of it.
Oil in a storage tank and gas remaining in a cylinder are included.
Some moveables are included by reference to sales particulars or adverts.
Others (notably carpets and floor coverings, blinds, curtain rails and runners but not curtains) are included under item 1.1.4.
1.1.4 Note that integral or encased kitchen appliances are included but not freestanding ones. This list changes regularly so it should be checked carefully as it may have changed since the last time you purchased or sold. Recent additions are smoke alarms, CO alarms and heat sensors.
1.1.6 provides for delivery of a wheeled bin or receptacle.
1.2 The Seller warrants their ownership of moveables and that they are free of debt or court action.
1.3 obliges the Seller to remove moveable items not included in the price.
1.4 makes clear that any electrical or gas appliances included in the sale are sold as seen and that the seller does not warrant these as working.
2 AWARENESS OF CIRCUMSTANCES
The Seller states their awareness of Notices or matters that do not affect the Property. Of course, if the Seller knows of any such Notice, etc then they should tell their solicitor so that the matter can be properly addressed. A recent addition to the list of circumstances is Japanese Knotweed.
3 SPECIALIST REPORTS
3.1This obliges the Seller to deliver at settlement any Guarantees for rot or rising damp treatments as well as those for insulation and double glazing.
3.2 &3.3 Self-explanatory
4 CENTRAL HEATING ETC.
The test is “working order” i.e. if the system works on the Date of Entry (when the keys are obtained), that is sufficient. If the Purchaser has any concerns about the working order or safety of the central heating or other system it is recommended that they arranges for a separate inspection of it as it will not be covered by the surveyor’s report.
Any defects existing at the Date of Entry require to be intimated within five working days of settlement otherwise the claim is lost.
Note that there is no warranty by the Seller that the systems comply with current standards or regulations. It is not felt appropriate for solicitors to be involved in checking compliance and the average client is not an expert. Also Regulations change frequently and most owners will not update systems or appliances.
5 DEVELOPMENT
5.1Under planning legislation, neighbour notification requires to be given by an owner of adjoining property for certain kinds of development. This clause, however, does not apply to notices where the development has been completed prior to the conclusion of Missives, or where the notice in question has lapsed, or where the application for consent has been refused or withdrawn. If a Seller has been served with a neighbour notification notice (other than in the excluded circumstances), then a qualification will be required in the qualified acceptance to explain that there is an exception from the warranty. The Purchaser is to be notified by the Seller of any fresh notices served prior to the Date of Settlement i.e. when the price is paid and will require to decide whether or not to object.
5.2A warranty by the Seller that they have no knowledge of any development proposal of a neighbour which might materially affect the value or amenity of the Property.
6 STATUTORY NOTICES ETC.
6.1The Seller is liable for any local authority notices or orders requiring repairs to be carried out to the Property issued prior to and on the date of conclusion of Missives. The Purchaser is liable for such notices and orders issued after the date of conclusion of Missives.
6.2If the Seller has received written notification etc of any scheme of common repairs or improvements instigated or administered by any Local Authority or other public body then they require to tell their solicitor so that this can be disclosed in a qualified acceptance of the offer.
6.3 - 6.6provides an agreed mechanism for retention of a sum to deal with such notices.
6.7Self explanatory except that a Notice of Potential Liability for Costs is a Deed that can be registered against the Title of the Property by a neighbour or the Factor who has been unable to recover costs of common repairs.
7 PROPERTY MANAGEMENT AND FACTORS
If the Property is part of a larger building or tenement (e.g. a flat) or is a house forming part of a development with common amenity areas then this clause applies.
Any charges for maintenance of common items will be apportioned at the Date of Entry on the basis stated. If there is a Factor, they will carry out the apportionment.
The Seller’s solicitor shall supply to the Purchaser full details of the factoring and block insurance arrangements and will notify the factor of the change of ownership.
Please note that the Seller will remain liable for major repairs or improvements currently proposed (by the development factors, managing agents or a co-owner of the Building in writing to the Seller), instructed, authorised or completed but not yet paid for. This should be read along with Sub-Clause 6.2.
8 ALTERATIONS
8.1Most erections and alterations require planning permission from the planning department and building warrant consent from the building control department of the local authority. Listed Building Consent is also required for a listed building.
A Completion Certificate (or Notice of Acceptance of a Completion Certificate) is required from the local authority on completion of the work. The Seller is to produce the relevant documents for such work (but in the case of alterations and extensions only if material or significant) carried out within a period of 20 years prior to the Date of Entry.
8.2The Seller should also produce Planning Permission for any such works carried out within a period of 10 years prior to the Date of Entry.
If the Seller has carried out alterations but has not obtained such consents the Seller should contact their solicitor at an early stage and advise them of these and take their advice about how to remedy the situation.
8.3If the title provides that consent from neighbouring owners was required for alterations needing local authority approval but the alteration has been complete for a period of 12 weeks or more with no objection having been made, then neighbouring proprietors lose any right to complain about the particular alteration. However if such an objection has been made you should inform your solicitor who will discuss how to deal with the matter.
8.4This clause warrants there are no planning conditions of a continuing nature restricting current use of the Property or adversely affecting it.
8.5This clause contains a Seller’s warranty that they have not carried out any additions or alterations
9 DISPUTES/LITIGATION - Self-explanatory.
10 ACCESS - Self-explanatory.
11 UTILITIES AND SERVICES
11.1Self-explanatory. A recent change is deletion of the right of a seller to retain an existing telephone number as such a provision is felt to be historic now.
11.2Roads are not always taken over for maintenance by a local authority. This allows for that being the case.
11.3Water and 11.4 Drainage are not always taken over for maintenance by a local authority and this covers that situation and what is required.
11.5is a new warranty that all meters for utilities are situated within the Property.
12 BREACH OF CONTRACT BY SELLER
If the Seller does not implement their part of the Missives, this condition provides a right to the Purchaser to claim damages for reasonable losses.
13 BREACH OF CONTRACT BY PURCHASER
If the Purchaser fails to implement their part of the contract by paying the price on the Date of Entry, this specifies the remedies open to the Seller for interest or damages and the Seller’s right to rescind or terminate the Missives and resell.
14 NEW HOME WARRANTY SCHEME
Most new homes and some conversions of older ones protect owners of houses if serious structural defects appear in the first 10 years. A number of schemes operated by NHBC and others are acceptable to lenders.
15 TITLE CONDITIONS
There are various title matters that need to be looked at by a Purchaser’s solicitor to check that the title is good and marketable (readily saleable). The titles are exhibited to the Purchaser’s solicitor and the Purchaser will have a right to resile (i.e. get out of the contract) with no penalty to either Seller or Purchaser provided (1) the purchaser gives intimation of something prejudicial within 10 working days of obtaining the Titles and (2) if such matters intimated as prejudicial are not rectified or clarified to the Purchaser’s satisfaction (acting reasonably) by the Date of Entry or within 6 weeks of such intimation whichever is earlier. If a purchaser does not exercise a right to resile within that period the purchaser is deemed satisfied as to the position. A seller should advise their solicitor if he is aware of or believes that there may be servitudes affecting the property that are not contained in the Title.
16 AWARENESS OF ENCUMBRANCES
Most Burdens and Servitudes, Leases and the like are mentioned in the Title but some can exist without being stated in the Title. Sellers should disclose these.
17 ADVANCE NOTICES
These provide a priority period to purchasers to register their Title free of challenge by creditors or insolvency, or disposal, or grant of a security to another party.
18 SETTLEMENT/REGISTRATION OF TITLE
This condition requires the Seller to sign and deliver the Disposition transferring the title to the Purchaser and makes provisions for normal Land Register searches to be provided by the Seller showing that the Seller still has a good title and there is nothing which would prevent the sale such as the Seller having been made bankrupt or having an Inhibition (a court order preventing a sale). If the Property has not been previously registered then 18.1.1 applies and if already registered 18.1.2 applies. It also requires the Seller to give to the Purchaser vacant possession and all keys held by the Seller to include keys for all lockable doors and garages.
18.2.1A recent change is to the effect that payment of the price is due by electronic transfer (instead of solicitor’s cheque) and the cost is at the Purchaser’s expense.
19 INCORPORATED BODIES - Self-explanatory.
20 RISK
Without this condition the risk of destruction or damage would pass to a Purchaser when Missives are concluded despite the fact that the Purchaser would not yet be living in the house. It is thought to be fairer that the Seller should bear the risk until the time of Settlement when the keys are handed over. A new clause has been added requiring the seller to warrant that their current buildings insurance has been obtained on normal reasonable terms appropriate for the property in question.
21 PROPERTY ENQUIRY CERTIFICATE (“PEC”)
It is usual for the Seller to pay for and produce a certificate from the local authority or a private search company confirming that there is nothing adverse affecting the Property in various public registers. If the PEC discloses any matter which is materially prejudicial to the Purchaser or to the Property, the Purchaser can get out of the contract without penalty provided (1) the Purchaser intimates their intent to resile within 10 working days of receipt by their solicitor of the PEC and (2) if such matters intimated as prejudicial are not rectified by the Date of Entry or within 6 weeks of such intimation whichever is earlier. If a Purchaser does not exercise a right to resile within that period the Purchaser is deemed satisfied as to the position.
21.3Provides clarification as to what is material or not.
22 COAL MINING REPORT
It is usual for a Seller to obtain at their expense a Coal Mining Report if the Property is within a coal mining area. The Purchaser can resile from the Missives (i.e. get out of the contract) without penalty if something materially prejudicial to the Property or the Purchaser’s proposed use of the Property is disclosed provided (1) the Purchaser intimates their intent to resile within 10 working days of receipt by their solicitor of the Report and (2) if such matters intimated as prejudicial are not rectified by the Date of Entry or within 6 weeks of such intimation whichever is earlier. If a Purchaser does not exercise a right to resile within that period the Purchaser is deemed satisfied as to the position.
23 OCCUPANCY RIGHTS
If the Property is a Matrimonial Home and is in the sole name of either the husband or wife then the husband or wife not named on the title has an occupancy right. If the Seller is in a civil partnership then the civil partner has a similar right.
24 SUPERSESSION OF MISSIVES
This does not mean that the Seller is responsible for the Property for two years. It does mean that any part of the Missives or contract ceases to be enforceable after a period
of two years from the defined Date of Settlement (DOS) except regarding Clauses 6 and 18 which remain in full force until implemented.
If a Purchaser does not settle there will be no DOS and so no time limit of two years so that the Missives remain in force under the general law and this clause will not apply.
25 SELLER’S ADDRESS - Self-explanatory.
26 LIMITATION OF CLAIMS
This clause is designed to give protection to a Purchaser against a breach of the contract by the Seller which becomes apparent after the Purchaser has paid the price and received the title deeds and keys. It allows the Purchaser to seek damages from the Seller except in relation to the matters mentioned. It is felt that claims under £500 are minor in nature (compared to the value of the Property) and that Purchasers should be excluded from making such minor claims.
27 ENTIRE AGREEMENT
Generally comments made by the Seller about the Property or the condition of the Property shall be deemed superseded by the Missives. Clause 31 excepts from that supersession information in a Property Questionnaire of a Home Report.
28 MINIMUM PERIOD OF OWNERSHIP
Clause 28.1 is designed to comply with lenders’ requirements. It is a warranty that the Seller has owned the property for at least 6 months prior to the date of the offer. If this is not the case, the Seller should alert their solicitor.
Clause 28.2 confirms the seller is in possession and has been so openly peacefully and without judicial interruption (e.g. by court order or declarator).
29 GREEN DEAL ETC
29.1is designed to ascertain if the Property is subject to a green deal plan. It provides that it is not subject to one as the default position, as most sales will not involve a Green Deal. Other provision will need to be made if a Green Deal is involved.
29.2An Energy Performance Certificate (EPC) forms part of the Home Report but some sales are “off market” so this sub clause reminds sellers of their obligation to provide an EPC if there is no Home Report.
29.3The Seller confirms that the Property does not benefit from, contain or have attached to it any solar panels etc. If it does then extra provision may be required to cover this situation.
30 CROFTING
This clause is designed to ascertain if the Property is a Croft. It provides that it is not as the default position as most sales will not involve a Croft. Other provision will need to be made if a Croft is involved.
31 HOME REPORTS
This provides that the “entire agreement” clause 27 will not apply to the terms of the Home Report (HR).
In Clause 31.2 the Seller confirms that the information in the Property Questionnaire (PQ) section of the HR is true and correct to the best of the seller’s knowledge and belief. This reflects the wording of the law dealing with HRs.
In Clause 31.3 the Seller confirms that the information contained within the PQ remains the same at the date of the offer as at the date of issue of the PQ.
32 EXECUTION BY ATTORNEY - Self-explanatory.
33 THIRD PARTY RIGHTS - no other parties acquire rights under the Missives.
34 COUNCIL TAX
34.1is a Seller's warranty that there has been no claim for a reduction in Council Tax due to vacant property relief within 1 year of Date of Entry.
34.2is a sub-clause making clear that a seller has the primary obligation to intimate a sale to the relevant tax authority and
34.3is a recent addition of a sub-clause warranty by the seller that there have been no alterations by them that could result in an alteration of the Council tax banding.
35 TITLE INDEMNITY POLICIES
A Clause dealing with the grant or existence of title indemnity policies which are an increasingly large part of current practice.
36 OVERSEAS ENTITIES
This is a new clause designed to deal with the Register of Overseas Entities and requires that an overseas entity transacting over property be registered in that Register and provide searches to confirm this.
Adapted from the Clients Guide originally written by Ian C. Ferguson of Mitchells Roberton Ltd on behalf of the Scottish Conveyancers Forum.
Disclaimer: This guide has been adapted from the Client Guide originally written by Ian C. Ferguson of Mitchells Roberton Ltd on behalf of the Scottish Conveyancers Forum. It is not intended to be legal advice and should not be treated as such. No liability is accepted for anything contained therein.
