Tuesday, January 31, 2017 15:07

Scottish Conveyancing Guide

Scottish Conveyancing Guide

 

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Scottish Conveyancing Guides

10 Facts you should know!

1. Accepting an Offer

When you are faced with an offer to buy your property or several offers you are not bound to accept any. You are also not duty bound to accept the one offering the most money. In may be that a purchaser in a position to buy (or cash buyer) is preferred, or one that can accommodate your particular requirements e.g date of entry. As a seller it is your choice not your solicitor’s or your estate agent’s.

Aaen Peach Benefit – Your legal work is always independent and as such speak to your legal team in the first place. They will always provide you with the best advice FREE from any thought of commission or payment. The likelihood is that a house is the largest asset most people own so it’s worth taking a few minutes to seek an alternative point of view. There may be issues that you mat have overlooked. All initial AP advice is FREE.

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2. Prepare your property before you receive an offer

Being legally prepared before you receive an offer could be the difference between selling or not. Aaen Peach will always advise you that you give your property a ‘MOT’ before you receive your offer to buy. Your legal team should organise your titles, alteration documents, permissions, insurances etc early. Sometimes (due to defects found in your title deeds or lenders) this can take several weeks. We believe that within 48hrs of any offer you should have your acceptance of the offer along with your titles back to the purchasing solicitor. Do not let the deal go cold as you wait on your solicitors getting prepared.

Aaen Peach BenefitMany lawyers will not do this work before you get an offer as it will cost them time and money to do. They may even ask for money upfront. This is not the case with your legal team who will do all this work for FREE at the start, and if you do not sell there is no cost or charge to you. We would rather be prepared.

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3. Written or verbal offers?

Offers made in Scotland that are to be binding need to be in writing. Verbal offers can be made, although this would usually be an informal agreement made between a seller and a prospective purchaser. Occasionally, a verbal intimation of a price may be used where the offer is speculative. For an offer to proceed to the stages of contract, it must however be in writing.

Aaen Peach Benefit – We’ll work to suit your needs, whether you have already agreed a price or whether you would prefer a formal written offer to be issued. Remember, we don’t charge for offers!

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4. Who pays for the searches?

In Scotland the Sellers 90% of the time pay for the searches, reports and deeds. There are a few exceptions to this; where you are buying a New Build property, or buying a Local Authority house. Other examples include where you are Part Exchanging your property with a builder or may be using shared equity. This can cause confusion with some clients as the rules are completely different from that in England & Wales.

Aaen Peach Benefit –In many cases if specialist reports or searches are required who pays comes down to negotiation and what the parties have agreed to in the missives. It due literally pay you to make sure you have the best legal team for two reasons. One, the better your legal team the less likely you will burden the costs. Two, with a better buying power Aaen Peach can reduce the costs if you do choose to buy the reports.

Examples of specialist reports include, refreshing the home report, flood and environmental reports, woodworm and structural engineer reports.

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5.The Property Titles explained

The titles to any property are similar to the log book for your car. Unfortunately they are a bit more complex an can throw up grey areas, especially if the deeds were drafted ambiguously. Which happens more than you may think and more than we like.

The Titles Contain- Who owns the property, what debt is secured over the property, the boundaries, the burdens (rules of ownership) and a list of any other rights or people/companies who have an interest in the property (e.g. a public right of way, a shared access or shared septic tank). They will also go into detail in areas such as the owners rights to access the property, draw water, use services such as pipes, electricity and managing maintenance in the case of flats. All of these areas may raise questions by the purchasing solicitor. Tiles can easily date back to before the 1800’s and are in some cases incomplete. If you have further questions you can call and ask us as this is a very complex area. Please remember our advice is FREE.

Examining Title Deeds – The title deeds are checked to ensure that the boundary of the subjects are accurate and that the area being purchased is correct and includes all buildings and ancillary ground. During this process, enquiry as to rights of access and adequacy of the seller’s title to the property will be examined as well as the conditions that must be obeyed by the owner, such as common repairs, rules on keeping animals or uses for the property. You will normally receive a copy of the title to identify exactly what you are buying.

Aaen Peach Benefit Your solicitor will have extensive experience with title examination and you can freely ask questions without additional charge.

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6. Specialist Works if Required

Specialist Title Indemnity Insurance – can be provided to clients to allow many potential issues to be resolved without the need for protracted court action. There are many insurances available on the market but you must ensure that it will cover any buyers lender and any subsequent lender of any other buyer under the terms of the CML. Aaen Peach with the help of your legal teams can have within 24hrs a regulated title policy in place to allow your deal to progress.

Damp Rot or Not – Deciding if you should fix the areas damp or rot before you sell or allowing your legal team to sell the property as is? Or have the damp or rot areas just been discovered and you need it fixed fast? Speak to the professionals who can manage and negotiate with not just the other solicitors but ensure that the works done happen and the transaction continues. Always remember that there are many solutions to each property issue. Check your boundary! – You will need to examine the title to the property. Don’t worry, your solicitor will point out any legal issues and you will only be required to identify the extent and boundary and confirm that you are happy with any obligations that you will have to adhere to.

Aaen Peach – have a strong network of professionals who provide assurances to lenders and clients. Who can provide cost effective advice to allow progress in your sale or purchase or in some cases help you avoid that DIY nightmare. Like all Aaen Peach work this service is available throughout the whole of Scotland and again as usual its easy just call and we can advise you how best to progress for FREE.

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7. What will the Lawyer Look for?

Purchasing a property in Scotland is very much a case of ‘Buyer Beware’. There are normally limited warranties provided by Sellers after the date of entry and as such the purchasing solicitor must know what to check, examine and look for. It is not for the seller or the sellers lawyer to disclose problems (unless actively asked). To this end the purchasers lawyers asks and the sellers lawyers must provide the answers, searches and more often than not the persuasive facts to keep the deal moving and get agreement on the missives.

Sasine vs Land Register of Scotland

Scotland is in a transition between 2 property registers. As such the purchasing Solicitors require to fix all and every minor property discrepancy before they can register the purchaser as the new owner. Due to the fact that the majority of ownership titles are based on deeds that can be a far back as the 1800’s, it is now surprise that the purchasing solicitors have many requests and questions. Ensure that your appointed lawyer is a property expert. It is our belief that this is not the time to appoint a multi-disciplinary lawyer.

Aaen Peach Benefit – We only employ Expert Property Solicitors. May areas of the missive negotiations throw up grey areas. Having an industry renowned expert property solicitor backing up your case gives you a edge in any negotiated contract. At Aaen Peach you will have the professional support of Scotland’s best property specialists to provide assurances, deeds and support. Providing the most detailed reports/deeds to ensure that the purchasing lawyers are happy to buy can take weeks but with our contacts we can usually do the same in 24hrs. For a fuller list of the searches or questions about a specific search term just give us a call.

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8. Practical advice for every purchaser

Communication is key. You should not assume that your solicitor will be aware of details that you have agreed with the seller directly, so if in doubt – tell.

Sign and return all documents sent to you before the date of entry. If you do not, then it is likely that this would delay settlement of the purchase.

Stay realistic! Remember that every purchase transaction is dependent upon all parties pulling together at the same time. Your mortgage lender will require notice to release funds, and any last minute changes to the date of entry will also have to be agreed with the seller. In the event your solicitor has to make further enquiries on your behalf, the answers will often come from third parties who will not always appreciate your chosen time frame.

Aaen Peach Benefit You don’t have to visit your solicitor’s office to sign you paperwork as they’ll aim to do everything with minimal intrusion into your busy schedule.

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9. Mortgage lender requirements

Assuming you are borrowing money from a bank or building society, you solicitor will undertake the security work on behalf of your lender and complete the necessary documentation to allow for the release of mortgage funds and make general enquiries as appropriate. For example, where there was missing documentation for alterations.

Aaen Peach Benefit – Your solicitor will only be dealing with this specific area of work as opposed to juggling with many different disciplines. This way you can be assured that your case is given the right amount of attention by a person with the right amount of experience.

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10. Before you sell what you should consider.

Questions you should know the answer to: – Do I need to fix the defects in the Home Report? – Do I need to disclose any defects and problems to the seller? – What is the benefit of appointing a solicitor before getting an offer? – What should I not discuss with any potential buyer?

Aaen Peach Benefit – At Aaen Peach our advice is FREE so you can start asking us the vital questions and allow us to help you avoid the pitfalls from the start. Many transactions can be de-railed later in the negotiations due to something said by the seller that often are not relevant. If in doubt ask. Even if you do not end up selling your solicitor will not charge you a penny for the help.

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Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide Scottish Conveyancing Guide

In Scotland properties are offered for sale in a number of ways:-

Offers Over

This option tends to be the one which is used by most sellers. As a guide to Scottish conveyancing the seller may hope to achieve a final sale price that exceeds the offers over figure. This can lead to confusion for a prospective purchaser to know exactly what they might require to pay for a given property. This has been simplified by Home Reports which provide a valuation of the property prior to offer being submitted.

Offers around/in the region of

As a guide to Scottish conveyancing this option may mean that the seller is willing to accept less than the quoted figure. This may be the case if the property has been valued under the price the seller is asking for, or if the seller is looking for a quick sale.

Fixed price

The seller is indicating that they will accept a particular figure, but it is worth noting that this is not a legal obligation on the seller, and also offers can be still be made. Once you have found a property and as a guide to Scottish conveyancing, then it is important to contact your solicitor so that either a ‘note of interest’ can be made (which lets the estate agent know you are interested in the property), or so your solicitor can put in an offer for you. The offer will consist of the amount of money you want to pay for the property and also what you would like to be included in the property. For example, movable items such as curtains, cookers or carpets; and fixed items, for example wardrobes. Your preferred date of entry would also be included.

What happens next

If the property is going to a closing date, this means there is more than one interested party. Offers are then sent to the estate agent by your solicitor at a specific time on a certain day. Once all the offers have been received by the estate agent and as a guide to Scottish conveyancing they will, after speaking to the seller, contact the successful buyer’s solicitor and verbally accept the offer. The successful offer need not be the highest value offer as there is no legal duty to accept the highest or even any of the offers.

The seller’s solicitor will then issue a qualified acceptance and exhibit the property titles and any associated papers to the buyer’s solicitor. There is no legally binding contract at this point. The conveyancing matters will then be dealt with by the solicitors. As a guide to Scottish conveyancing the buyer’s solicitor will examine the title and plans and ensure that the property belongs to the seller, reports will be ordered and checks will be made. Any certificates will be collected and any planning permissions for alterations obtained. The buyer will receive a copy of the title deeds to satisfy themselves that this is the property they are buying. When the buyer’s solicitor and the seller’s solicitor have agreed the terms of the qualified acceptance on your instructions, they will conclude missives, again on their client’s instructions. This is the ‘Concluding Missives’ that buyers and sellers look forward to, and is now a binding contract for both parties.

On the date you get your property

Once the date of entry arrives the buyer’s solicitor will exchange funds with the seller’s solicitor and the keys are released to the buyer. So please have your mobile ‘phone charged!

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Below is the advice given by The Law Society of Scotland

Solicitors can ease the strain and help to avoid the pitfalls of the complete house-buying process, from noting interest in a property to concluding the deal. Their local knowledge can also be useful in helping you find a property.For a more detailed description of the process, please download our Buying a property information sheet.

The first step

A solicitor can ‘note interest’ in a property you like. This shows you are interested in the property and want to be kept informed of developments, such as the fixing of a closing date for offers.

Information about the property

Sellers must provide a home report for buyers. These include a single survey (which gives the condition and value of the property), an energy report (which contains a house’s energy efficiency rating and carbon dioxide emissions) and a property questionnaire (which includes general information such as a property’s council tax band, factoring arrangements, the existence of any local authority notices and information about alterations that have been made).A surveyor instructed by the seller will provide the survey contained in the home report pack. In many cases this will be sufficient for an interested party to submit an offer. However the potential buyer may have to commission another survey at the request of a mortgage provider or if the original survey was carried out some time ago. Your solicitor can provide further details and advice.

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Arranging the loan

There are many types or mortgages available, which can be confusing. Some solicitors can offer advice on what is best for you and then arrange the loan.

Making an offer

A formal offer to purchase in Scotland is a complicated document containing a number of clauses for your protection. Your solicitor will prepare and sign this document for you and give guidance on offer price and other conditions.

Negotiating the purchase

Further negotiations are likely after an offer has been accepted, for instance, the date of entry, details of additional items included in the sale and issues such as permits for alterations.

Checking and transferring ownership

Your solicitor can advise on any ‘title burdens’, or conditions that must be obeyed by the owner, such as common repairs, rules on keeping animals or uses for the property. A new title deed will then be prepared and signed by the seller, transferring the title into your own name.

Other matters

Your solicitor will be able to give you advice about other important matters, such as insuring the property and its contents and drawing up a will, which is highly recommended. Also, he or she can provide you with a quotation for the cost of the house-buying process, including legal fees.

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Selling a property

Most solicitors can handle the sale of a property from start to finish, including advice on advertising and the conveyancing. It is best to consult a solicitor even if you are selling a property yourself.

Home reports

Sellers are required by law to provide a home report for buyers. These include a single survey, an energy report and a property questionnaire. Your solicitor can provide further details and advice.

Negotiating the sale

Your solicitor will negotiate the selling price and other matters – such as the date of entry – before negotiating and accepting any offer to purchase on your behalf. This exchange of letters signed by the solicitors is referred to as ‘missives’. Once their terms are finally agreed, there is a concluded and binding contract.

The paperwork

Further checks have to be carried out by solicitors after an offer has been accepted, for instance, in relation to building work or repairs. Then new title deeds can be drawn up transferring ownership of the property. Your solicitor can take care of all this, while also collecting the money from the sale, arranging to discharge and repay your existing mortgage if you have one and, if necessary, arranging for the surplus to be put towards the purchase of your new home.

After the sale

Your solicitor will also be available for advice after the deal has been completed.

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Official Scottish Conveyancing Guide - Selling or Purchasing Property? - Renowned Property Experts, Aaen Peach Law Explain the facts.