Scottish Legal System

The main differences between Scotland and the rest of the UK

The West Highlands has always welcomed people moving into the area from other parts of the UK and further afield.  Most folk know that Scotland has its own legal system, distinct from the rest of the UK, but how does that affect buying property in the area?

The following are often queries:-

Why do solicitors tend to be the ones acting as estate agents?

In Scotland, and certainly in the Highlands, the majority of property is sold by estate agents working within solicitor’s firms.  This stems from the traditional way in which solicitors were seen as dealing with all the business affairs of individuals and families.

“Offers over” etc – what does it mean?

Price-wise, a house will usually be marketed in one of the following ways:-

Do all properties for sale go to “Closing dates”?

A Closing Date is the Scottish equivalent of English “Sealed Bids”. Because of the “Offers over” system, if the seller has two, three or more people interested in making an offer, they are almost certainly best served by setting a Closing Date at which the interested parties can submit their best offer.  Usually (but not necessarily and not always), the highest bid will secure the property.

However, until a Closing Date is formally set, there is nothing to stop an interested party from submitting a bid for the property.  Clearly, the seller may just want a quick sale without the uncertainty of a Closing Date, or the offer may be at a level that the seller is forced to consider may be at or above the level they may, or may not, get at a Closing Date.  A bird in the hand etc!

Do all properties have Home Reports?

Generally all residential properties in Scotland require to have a Home Report before they are placed on the market for sale. The Home Report contains three key documents which provide buyers and sellers with better information about the condition and value of homes at an early stage. It consists of:- (1) The Single Survey – this contains detailed, objective, information about the condition of the property and provides a valuation of the property; (2) The Energy Report – this shows the home’s energy efficiency rating and aims to help buyers make new green choices by comparing energy costs between homes. The Energy Report also gives practical advice on how to reduce carbon emissions and save on energy bills; and (3) The Property Questionnaire – this is completed by the seller of the home and gives prospective purchasers a useful summary of key information such as council tax banding, factoring arrangements and alterations made to the home.

Do I have to get a solicitor to submit my offer?  What are “missives”?

Yes.  Unlike in England, offers are initially made (possibly after some verbal discussions) in the form of a written legal offer, signed on your behalf by your solicitor.  If the offer is accepted in principle, the seller’s solicitor will usually (but not necessarily) want to make a few amendments to the detailed legal terms of the offer.  Again, he does this in the form of a detailed written legal response to the purchaser’s solicitor.  This means of tweaking the contract continues until both parties are happy with things.  The final letter in the chain of “missives” concludes a binding contract (“concludes missives” – the same point as exchanging contracts in England) and both parties are then bound in.

So once I have submitted my offer, I am effectively contractually bound to buy the property? What if I have still to survey, or sell my house in England?

In theory yes. Your offer is capable of being formally and legally accepted immediately – although in practice the adjustment of missives usually takes a week or so. For that reason, if you have still to get a survey on the property, or sell your house, or get your mortgage offer cleared etc etc, you will need to specifically make your offer conditional on those matters. In a strong market and particularly in a Closing Date situation, an offer that is conditional on matters outwith the control of the seller is unlikely to be all that attractive. It pays therefore to get your survey done up-front and to get all of your house sale/finance ducks “in a row” so that your offer can be submitted “clean”.

How long does it usually take between my offer being accepted and completion?

You should normally allow not less than 6 weeks between your offer being initially accepted in principle and your purchase completing (settling as it’s known in Scotland).  In extreme circumstances, it can be done more quickly, and clearly, if the parties want a later “date of entry” (completion date), that can usually be agreed.

Are there major differences in the actual conveyancing systems north and south of the border?

Scots property law historically came from a different direction (Roman Law) to the rest of the UK’s law, but in practice, the systems of registering property title ownership are now pretty similar.  All properties changing hands in Scotland now require to be registered in the relatively modern Land Register for Scotland, a computerised, Ordnance Survey map-based, and government-guaranteed system of registration of title, very similar in effect to the Land Registry in England.  If a particular property has not previously been on the new Land Register, there are a series of searches and checks carried out to ensure, for example, that there are no discrepancies in the property’s boundaries and that rights for septic tanks and the like are properly constituted.  These pre-registration checks are often of even more importance in rural areas such as the West Highlands where boundaries can be unclear (!) and where private drainage and water rights are still very common.