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Buying or selling a home – is your solicitor fully informed?

22 August 2018 Property & Estate Agency Garry Sutherland

Buying a house is the biggest expense and most important transaction most people will ever enter into. It is an exciting time, but often buyers focus on the dream of their new property rather than the reality of what they are purchasing. It is important to remember that the solicitor dealing with your purchase has probably never seen the property and is relying on the sales particulars, the home report and – most importantly – you to flag up to them any specific aspects of the property that they need to cater for in the contract. This is certainly true when it comes to unusual features of a property or if it has been negotiated that certain moveables are to be included in the price. This is equally true for buyers and sellers.

Missives is the term applied to the exchange of a series of letters between solicitors comprising a formal offer, qualified acceptance and other letters which are exchanged making up the contract for sale. The Missives are negotiated between solicitors and include areas such as the date of entry and any additional items that are to be left in the property (e.g. white goods). Like any contract though, the Missives lay out the rights and obligations of the buyer and the seller to each other. A solicitor acting for a buyer wants to make sure that insofar as possible their client is covered for a claim if there are defects in the property or if things aren't left behind that their client expected would be at handover. The seller's solicitor on the other hand wants to make sure that their client isn't potentially exposed to claims for things that weren't quite in 100% working order or for not leaving behind the washing machine that their client always intended to take with them.

Standard Missives are often put together to assist the effective completions of contracts. The standard contract means that the property should only be in the same condition when viewed by the purchaser, fair wear and tear excepted. The Law Society of Scotland has produced a guide to these standard clauses which can be found via the following link

Standard clauses can be great as they decrease the amount of negotiation required for the majority of purchases and sales and should cover most of the aspects that come up in a "standard" property transaction. However it is important to still read these Missives and think about all features of the property you are buying or selling and indeed the deal itself. From your knowledge of what you are buying, or selling, has everything been covered?

A buyer for example should make sure they have flagged up to their solicitor that although it isn't in the sales particulars, they agreed with the seller when they shook hands on a deal that all of the white goods in the house or the ride-on lawnmower in the garage would be included in the price. A seller might equally in either such instance make sure their solicitor knew that these things were to be included - but that was specifically on the basis that no warranty was being given as to their condition etc. If the solicitors have been made aware of that part of the deal, they can provide for it in the contract and everyone knows where they stand. If they don't, and either the items aren't left behind or are but they simply don't work then the contract won't cover that and someone isn't going to be happy. Solicitors are many things, but they aren't psychic!

Looking at unusual features of a property and the need to cater for them in the Missives, we are for example seeing more and more homes across the country with solar panels installed in the rooftops, taking advantage of free electricity and the Feed-In Tariff (FIT) schemes where you could be paid for the electricity you generate through your household solar panels. If you are buying or selling a property with solar panels installed there are a lot of things you and your solicitor need to understand and provide for in the Missives. Are the solar panels owned outright or leased? Has the necessary building warrant been obtained? Who will benefit from the FITs after the sale? Again you should make sure your solicitor not only knows about the solar panels, but also what you understand and expect you are either getting or giving. Don't just assume that all of the information he or she needs is disclosed in either or both of the Home Report or the sales particulars. That is often not the case. A fully informed solicitor for the buyer can make sure all of the right questions are asked, paperwork obtained and protection provided in the Missives. Likewise a fully informed solicitor for the seller can make sure that their client doesn't become contractually obliged to deliver something under the Missives that they don't have – such as the right to FIT's if they have previously assigned them elsewhere under a scheme.

In conclusion, always err on the side of too much information when instructing your solicitor in a purchase or sale of a property and read over the draft Missives with the above in mind when they send them out to you to approve. It is their job to sort out for you what needs to be in the contract over and above the Standard Missives but if they don't know about an unusual aspect of the property or deal then they can't provide for it – which leaves you potentially exposed either because you can't make a claim as a buyer or can't resist a claim as a seller.

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