Scottish / English Property Conveyancing Comparison

Moving from England to buy a house in Scotland?

It will be helpful for you to understand the differences between the Scottish and English Property Conveyancing Systems.

Due to our position on the Scottish Border Hastings Legal are often instructed as solicitors by people who are looking to move from England to Scotland.

There are many differences between Property Law in Scotland and England: If you are buying in Scotland you will need a Scottish Solicitor. If you are selling in England you’ll need both an English Solicitor for your sale and a Scottish Solicitor for your purchase. Due to the differing legal property conveyancing processes and practices between Scotland and England it can seem like a daunting prospect but the truth is that it doesn’t need to be. Hastings Legal have years of experience specialising in making a move north over the border as easy as possible for our clients.

In our experience the main difficulty tends to be reconciling the point at which the contracts for each transaction become legally binding.

In England the transaction becomes legally binding upon the “exchange of contracts”.

Up until this point either party can walk away from the prospective transaction without paying any financial penalty to the other. After the exchange of contracts it is not possible to withdraw from the transaction without facing severe financial penalties. The ‘completion date’ is the date upon which money changes hands and possession of the property passes to the Purchaser. The completion date tends to be only a few short days after the exchange of contracts and indeed can sometimes occur on the same day as the exchange of contracts. That is however not to say that the exchange of contracts and completion date must occur within a short time frame of one another. It is possible to have a gap of perhaps weeks if not months between the exchange of contracts and the completion date.

The difficulty with this practice is that it leads to uncertainty. It is impossible to know when the completion date is definitely going to fall until contracts are exchanged. This inherent uncertainty causes difficulty because practical arrangements such as removal men and time off work require to be set in stone. On a personal level there is also the small matter of packing your home into boxes and knowing in your own mind when you are going to be moving home. Moving home is unfortunately always going to be stressful to a degree but this increased uncertainty simply leads to an exponential increase in pressure and stress upon the parties concerned. This uncertainty is also the reason that the English property market is viewed as more volatile that the Scottish market.

In Scotland the transaction becomes legally binding upon the “conclusion of missives”.

Again up until this point either party can walk away from the prospective transaction without paying any financial penalty to the other. Once again after the conclusion of missives it is not possible to withdraw from the transaction without facing severe financial penalties. A similarity can therefore be drawn between the exchange of contracts in England and the conclusion of missives in Scotland because, on a very practical basis, these are the points at which the contracts become legally binding. These are the points of no return after which it is not possible to withdraw from a transaction without severe financial penalties becoming payable to the other party.

The Problem

Where you are moving from England to Scotland and you are funding the Scottish purchase with the proceeds of your English sale it is vitally important that you do not conclude missives in Scotland until you have exchanged contracts in England.

You would  otherwise potentially find yourself in situation where you were legally bound to purchase in Scotland but, with your English sale having fallen through, you would have means to fund the same. Your inability to complete your Scottish purchase would result in a breach of contract and a substantial financial penalty falling due to the Scottish Seller.

The “Date of Entry” in Scotland is the date upon which money changes hands and the possession of the property passes to the Purchaser.

The crucial difference in practice is that the time period between the conclusion of missives and the Date of Entry in Scotland tends to be much longer than the time period between the exchange of contracts and the completion date in England. In Scotland a Date of Entry tends to be agreed at the outset of the transaction and the conclusion of missives tends to occur weeks if not months in advance of the Date of Entry. Indeed in some circumstances the conclusion of missives can occur on the same day as the submission of the offer.

This crucial difference in timescales can cause difficulties because the Scottish Seller wants to conclude missives on the normal Scottish timeframe and the English Purchaser may be unable to do so. This difficulty can be most difficult to reconcile. The Scottish Seller will view an English Purchaser as coming from a more volatile market than a Scottish purchaser and will therefore be reluctant to make practical arrangements without the reassurance of a legally binding contract. These practical arrangements can take time to put in place; no-one would suddenly want to be told that their transaction was completing the following day and that they would then need to pack their belongings, book removal men, book time off work and clean their house all within 24 hours.

The answer

The only viable solution that a Scottish Seller has in these circumstances is to either accept the unpalatable uncertainty or dictate to the English Purchaser that there must be a certain set time frame between the conclusion of missives and the Date of Entry.

Our approach in this firm has always been to attempt to make direct contact with the solicitors dealing with the sale in England both to explain the requirements of the Scottish system and to establish a good line of communication. Through good communication hopefully the stress caused by the inherent uncertainty can be limited and managed.

What do you need to do?

There are two crucial pieces of information that any Scottish Seller will want to receive from an English purchaser;

1.   The anticipated date for the exchange of contracts and
2.   The anticipated Date of Entry or Completion Date.

We’ll also need to contact your English solicitor to obtain confirmation of the said anticipated dates from them so it’s important you let us have a note of their contact details as early in your transaction as possible. Good communication between all parties is crucial.

We are here for you in the Scottish Borders whether you’re simply thinking of making the leap north or you have already found your perfect home in Scotland.

Borders Removal Firms

Links to local businesses who can help with your move:

Removal Services:
Lyle Transport, Hawick
Border Removals and Storage, Hawick
A1 Border Moves, Hawick
JWT Removals and Storage, Melrose

Self Storage Units:
Podhire, Duns
D. I. Smith & Co, Duns