Conveyancing - Scotland

Scotland

The position in Scotland under Scots law is that the contract is generally concluded at a much earlier stage, and the initial offer, once accepted by the seller, is legally binding. This results in a system of conveyancing where buyers get their survey done before making a bid through their solicitor to the seller's solicitor. If there is competing interest for a property, sellers will normally set a closing date for the initial offers.

The contract is normally formed by missives of sale between the solicitors on behalf of each of the seller and purchaser. Missives are letters the body of which contain proposed sale contracts and that negotiate terms, one missive at a time, essentially as an offer and counter-offer. Once all the contractual terms are agreed, the missives are said to be concluded, and these serve as a binding contract for the sale of the property. Normally the contract is conditional upon matters such as the sellers being able, before completion of the transaction, to prove that they have good title to the property and to exhibit clear searches from the land registers and the local authority. The fact that there is a binding contract at a relatively early stage, compared with the normal practice in England and Wales, makes the problem of gazumping a rarity. The disadvantage for the buyer is that they usually have to bear the cost of the survey for unsuccessful bids, though trials have been made of a system where the seller arranges for one survey available to all bidders.

From 1 December 2008 properties for sale will have to be marketed with information, now branded as the 'Home Information Report'. This should consist of: a Single Survey, an Energy Report and a Property Questionnaire local Authority Search and evidence of legal title. The Home Report will be made available on request to prospective buyers of the home. The date of final settlement is in Scotland known as the "date of entry".