A contract for the sale of heritable property in Scotland, that is an agreement for the sale of land and buildings, requires to be in writing. A verbal contract is not binding.
Until the missives comprise an offer and an outright acceptance, or where there is not an outright acceptance a qualified acceptance and then a letter to confirm that the counter-proposals are acceptable, there is no binding contract. Once, however, a letter concluding a bargain has been sent accepting all the previous terms and conditions there is then a concluded bargain binding both the parties. Were either party not to proceed they would then be in breach of contract.
In selling a property we will require your mortgage reference number so that we can obtain your title deeds. We also need to know if you have more than one mortgage and the relative details thereof. We will obtain a redemption figure a number of days following the transaction so that the mortgage can be paid off once the sale proceeds have been cleared.
We require to obtain what is called a Property Enquiry Certificate, which is a Certificate from the Local Authority confirming whether there are any Local Authority Notices affecting that property. This might entail, for example, any road proposals, whether the road is in fact public and whether there are any contraventions of building conditions.
A Coal Report may be required by the purchaser to confirm that there have been no coal mining activities which would affect the subjects.
The purchasers’ agents prepare a Disposition. We revise it and deal with any observations on Title. We ask you to call to sign the Disposition and to let us have any other information which is required, including whether there are any factors.
A question that we are often asked is at what time on the date of entry the transaction will conclude. This is often dependent on the purchasers and when their loan funds become available. It is also dependent on their sale, if they are also selling a property. Generally the funds become available in the early part of the afternoon. If we receive the purchase price in a cheque from the purchasing solicitor we cannot send you the free proceeds of sale or redeem your existing mortgage until the cheque clears our client account. Although settlement by direct bank transfer is becoming more popular, there is no guarantee when the funds will transfer. For that reason, many solicitors prefer settlement by cheque so that there is defined time of settlement for the purposes of the handover of keys and a minimum delay in the removal. The downside to that is of course that the cheque will take four or five days to clear and this necessarily delays our sending funds to the client. We are not permitted by the Law Society to send funds that have not cleared our client account and will not do so.
So where the client is not buying another property the sale proceeds will be available once the other solicitors’ cheque has cleared.