Contract and missives

Buying a house in Scotland

To be legally binding, an offer in Scotland has to be submitted and accepted in writing.

An offer is made in writing by the Solicitor on behalf of the purchaser. As well as specifying the purchase price, the date of entry (the "completion date" in England) will also be stated. This can be early or late, depending upon the circumstances of the particular purchaser or seller.

Unlike south of the border, where offers are made "subject to contract" and the intending purchaser then arranges a mortgage and a survey, in Scotland a survey may have been carried out and mortgage funds arranged before an offer is made. However, it is now common to offer "subject to survey".

Many other technical clauses will also be included in the offer for the protection of the purchaser. If the offer is to be accepted a formal acceptance will be issued usually subject to qualifications (amendments) which the purchaser may accept or try to adjust further. Very occasionally an acceptance of the whole offer may be issued immediately without qualification.

The exchange of letters between the two Solicitors is called "the Missives". Depending on matters of complexity, it may take a fortnight or even longer for Missives to be concluded but it should also be remembered that it is open to a seller to issue an unqualified acceptance of the offer (even that day) and therefore submitting an offer should always be taken seriously. The solicitors sign the Missive letters on behalf of their respective clients. Once Missives are concluded, a legally binding contract exists from which neither party may withdraw without liability to damages for breach of contract.

In England, until contracts are exchanged, either the seller or purchaser may withdraw from the contract without penalty and it is impossible to predict when the transaction will be completed. In Scotland therefore, on most occasions, a purchaser is legally bound to proceed with the purchase at a much earlier stage than in England.

The Scottish system does give greater certainty and allows for forward planning, removals and other arrangements. It also avoids "gazumping" as both the purchaser and seller are committed and the seller is not free to entertain any other offers.

Dates of entry can be much earlier than in England, the average being six to eight weeks from the date of offering. In some circumstances this can be even earlier if the mortgage has been arranged and the seller's Solicitor has all the necessary information and Title Deeds to hand.

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