Property Legals Gobbledygook Buster

This is a fairly extensive list of terms you may come across in property transactions.

However, things going well, you will never need to bother about them as your solicitor will have it all completely under control.

Some of the terms are more commonly used in commercial situations.

Listed alphabetically

“It’s tangible, it’s solid, it’s beautiful. It’s artistic, from my standpoint, and I just love real estate.”Donald Trump
Additional Home Supplement

This refers to a supplementary charge on a purchase, introduced in April 2016, and set at 3% of the whole price. It is payable in situations where the purchase is deemed to be a second or additional home as defined in the regulations amending the standard Land & Buildings Transaction Tax (LBTT). It is sometimes wrongly referred to, and better known as, Stamp Duty.

Assignation

The transfer of the tenancy under a Lease by an assignor to an assignee. This is also the name given to the document. In Scotland an assignation must be notified to interested third parties such as a tenant would need to notify the landlord for it to be effective.

Assignor and Assignee

The party transferring or receiving a transfer or assignation of the right specified in the Assignation, commonly a tenancy under a Lease.

Acquiescence

The loss of a right to enforce an obligation which, if not challenged after a period, will prevent the party entitled to enforce it.

Building Warrant

Consent or permission from the local authority to carry out work on property requiring permission under the Building (Scotland) Acts.

Caveat Emptor

A commonly used Latin term meaning literally “buyer beware” and translated as “let the buyer beware”. In other words, the buyers have to satisfy themselves. It is akin to “sold as seen” or “take it or leave it”, where in a sale situation the seller is not giving any warranty of condition.

Charge

A form of security, most commonly a mortgage, which gives the party in whose favour its granted certain rights and a claim over the property specified in the charge or security document. In Scotland the most common example is a Standard Security granted for a secured loan or mortgage over land or buildings, with standard conditions often referred to and specified elsewhere, and with any variation or additional conditions in the detailed small print. Another example of a charge would be a floating charge granted by a company over its assets.

Collateral Warranty

A guarantee given by a third party such as a building contractor who is not directly involved in a contract with, say, a tenant or purchaser, giving collateral rights warranting their work, and giving the party entitled to rely on this a right to sue.

Conditional Missives

In Scotland missives are usually in the form of formal letters between solicitors, which are contractual in nature and once agreement is reached and formal letters exchanged this is the stage where missives are said to be concluded, and the terms adjusted in the missives form the contract. If, for example, the contract contains an agreement to purchase at an agreed price and on agreed terms but is conditional or dependant on another matter, such as obtaining planning consent, or on concluding a binding sale of a property to fund the purchase, or obtaining a mortgage, this would need to be specified in the missives and stated as conditional on that event. If any of these fail to happen then the contract could be terminated, usually without penalty. In practice, most buyers’ solicitors delay concluding missives on a conditional basis, preferring to leave the missives open and allowing the buyer more flexibility, so that even if the condition is met or purified they can still walk away at any time before missives are concluded. This has inevitably meant losing the benefit of certainty, previously a hallmark of the Scottish system of buying and selling property and, whereas missives would have been concluded over a period of a few weeks, or even days, the time taken to conclude has been extended and is more similar to the English system and only become binding many weeks in, and often at a much later stage as when contracts are exchanged in England.

Date of Entry

A common term meaning the date when a tenant or purchaser takes possession of the property and the equivalent of the completion date in England although, unlike in England, the date of entry is generally specified in the offer and is an essential term in the missives.

Deed of Conditions

A document or deed that is generally registered to regulate the rights and obligations affecting a number of owners and commonly used in a building development to standardise common rights.

Disposition

The deed signed by the seller in favour of the purchaser transferring title to land or buildings, which becomes effective against other interested parties once registered in the Land Register of Scotland.

Ex Adverso

A Latin phrase meaning opposite to or fronting.

Executed

In the context of property transactions this is the expression that simply means “signed”.

Extract

A registered copy or print of a document which then has the equivalent status of, and can be relied on, as the original.

Floating Charge

See “Charge” above ..a security over the assets of a company or other incorporated organisation known in Scotland as a limited liability partnership.

FRI Lease

Short for “full repairing and insuring lease” where the tenant is responsible for maintaining and repairing the building, including both internal and external repairs, and an obligation to reinstate, rebuild and insure the building against risks specified in the lease and relieves the landlord of that obligation.

Grassum

A premium payable by a tenant commonly referred to as a lump sum payment generally paid up front at the commencement of the lease.

Heritable Property (or Heritage)

A category of property that includes land, buildings, minerals and certain other rights in land.

Heritable Title (or Interest)

The right of ownership to land or buildings.

Heritable Fixtures or Fittings

Items that are fixed by nature or fitted to the property in such a way that removal would damage the fabric of the building. An example would be fixed fireplaces, such as a marble fireplace, or fitted or built in wardrobes.  Very simply, if you need a screwdriver to take it down, it is heritable.

Hypothec

Relates to a landlord in a commercial lease where the tenant is in arrears of rent, giving the landlord right of security over goods in the premises, so far as they belong to the tenant.

Irritancy

Scottish term for forfeiture giving the landlord the right to end the lease where this is specified, and sets out when it applies, for example non payment of rent or the tenant’s insolvency.

Ish

The termination date or contractual expiry date specified in a lease.

Joint and Several Liability

Where there is more than one party, commonly in a lease with joint tenants or a partnership tenant, this imposes liability on all, so that the landlord can look to any of them to perform obligations, such as payment of the whole amount, without having to be concerned with their agreement or arrangements between the various individuals. In private tenancies, where the tenants separate for example, the landlord can look to either of them to perform their obligations under the lease.

Keeper

Shorthand for the Keeper of the Registers of Scotland who is the person, and a Government Office in Scotland, responsible for maintaining the Land Register and others.

Land Certificate

The document of title that is evidence of an owner’s right or title to the heritable property specified in the document.  It includes a title plan, details of any charges or registered securities and title conditions. These are becoming less common and are being replaced by a Title Sheet, being a print out of the entry in the Land Register.

Land and Buildings Transaction Tax (LBTT)

A tax on purchases and leases which is based on value, and replaces the former Stamp Duty. It affects transactions since April 2015 and, subject to specified exemptions, it is payable by a purchaser on registering heritable property or a tenant acquiring a lease.

Land Register of Scotland

Public Register of land in Scotland base on the Ordnance Survey Map.

Letter of Obligation

Traditionally part of the agreement or procedures in a sale. It is an undertaking given on behalf of the client to produce something which is not available at settlement or completion, or to perform something within a specified period. This Letter is signed by the solicitor and is addressed to the other solicitor on settling or completing a transaction.

Licence

An agreement to allow occupancy that is not a lease and is generally for short term arrangements where there has been some delay but both parties are prepared, and able, to allow occupation. This may not be permitted where third parties interests are involved, such as a lender.

Long Lease

In Scotland this is a lease for a duration of 20 years or more. Only a long lease can be registered in the Land Register enabling a lender to register a security against the lease.  Traditionally, there were areas in Scotland where the title to property consisted of a lease for, often, hundreds of years.  Any lease that had more than a hundred years to run was automatically converted to a right of absolute ownership as of 28th November 2015.

Market Rent

The estimated market rent premises would attract on the open market, with a willing landlord, a willing tenant and arms’ length transaction.

Marketable Title

A title to property that is good and capable of being marketed sold and effectively transferred.

Missives

Written contract for purchase, sale or lease consisting of an offer, acceptance and often further letters with qualifications or variations to the contact and usually exchanged between solicitors for the buyer and seller’s solicitors.

Notary Public

Person authorised to administer oath, normally a lawyer, and frequently called upon for those swearing an affidavit or making other formal declarations.

Notice To Quit

Notice given by landlord or tenant to bring Lease to an end. This may require to contain certain statutory information.

Pre-Emption

A contractual right giving a right to match a competing offer to buy interest in land.

Premium

A payment usually by Tenant to Landlord at the start of a Lease.

Prescription

Can be either positive prescription, creating a right in law after certain specified periods of time, or the opposite, a negative prescription to cancel or extinguish a right through non use over a period.

Property Enquiry Certificate (PEC)

Report, often from a Local Authority but may also be from private companies, providing information on services such as roads, sewers, drains or legal orders for repair affecting the property. Usually obtained by the seller.

Suspension Condition

A condition which needs to be satisfied before the contractual terms become binding and enforceable, for example, subject to survey or loan.

Tacit Relocation

Legal phrase in Latin indicating the continuation of a lease beyond the original period specified in the Lease and on the original terms, unless formal steps are taken to terminate with a Notice to Quit.

Tenement

Generally a combination of flats in a building some 3-4 floors high.

Testing Clause

At the end of the deed and is a record of where and when it was signed and provides details of parties signing and the witnesses.

Contact Us

Share this Page