When is sold not sold?

So finally your house is sold – or at least that’s what your estate agent is telling you.

They might have slapped ‘sold’ on the sale board and on their website but the deal is only binding once missives have been concluded.

Our system of buying and selling property in Scotland used to be the envy of the house buying world.

Popular misconception had it that as soon as you opened your mouth to offer that was it – you were bound in contract. That is not the case now and probably never was. The truth is that, until missives are concluded either party can walk away from the deal.

What are ‘missives’?

In Scotland the contractual process for house buying is an exchange of formal written letters between solicitors which are known as ‘missives’. These put the terms specified in the offer (or by reference to standard agreed clauses) in what is intended to be a binding and contractual agreement by way of exchange of offer and acceptance.  In reality it is more commonly a ‘qualified’ acceptance until all points can be agreed.

In the past missives would reach a final conclusion in a matter of only a few weeks or even days. However as life has become less certain and the time taken to process mortgage offers, (which now have stringent affordability checks) both seller and purchaser are often left feeling they are in limbo due to the uncertainty. The situation is particularly uncomfortable for the seller. In some cases any ongoing offer to purchase would also be conditional on the sale of the buyer’s house. Before long we find ourselves in a chain of uncertainty.  Like a house of cards, it is liable to topple if any part of the chain breaks.

A bird needs two wings to fly.

Because Hastings Legal are Solicitors as well as Estate Agents our Conveyancing and Marketing wings work together in harmony. This puts you, the client, in control of the process from start to finish.

Ethical rules and Law Society of Scotland guidance

Unfortunately some purchasers seem to adopt an “I’m alright Jack (or Jill)” attitude and play their contractual cards close to their chest. In Scotland Solicitors are governed by certain well understood ethical rules as well as regulations and guidance from The Law Society of Scotland. Unfortunately there are too many occasions when it’s more a case of what is not said that matters. For example, if an offer is conditional upon a sale and the purchaser has not concluded missives, or if it is dependant upon receiving an acceptable offer of loan, or some other event before they will be held to the bargain it is well known this should be specified in the offer. However true cash buyers are thin on the ground and while there are occasions where a straightforward offer can be made and if agreed accepted without delay the norm is that the missives will not progress beyond the offer and a qualified acceptance and can get stuck for weeks pending the purchaser getting their ducks lined up…or their house in order !

Open ended situations like this are undermining the confidence of all involved. Even the conveyancing procedures can be held up as some solicitors are naturally reluctant to do much to progress the conveyancing in case it all falls through and their efforts go unpaid. The inevitable consequence is log-jammed transactions with everything left until the final stages – and the inevitable rush and stress that results.

So much for the solicitors, but what about the seller?

Unless they are kept in the dark in the hope all will come good (which is not recommended) the sellers will inevitably be frustrated and find it difficult to understand how they can be committed to the sale- or at least have been given that impression – whereas in reality the other side can’t or won’t commit. After spending months in limbo and with all the cost and effort of marketing  behind them (or so they thought) they could find themselves faced with the daunting prospect of being back at square one, like some surreal game of snakes and ladders.

Most purchasers are nice people

The reality is most purchasers don’t want to mess the seller around. Thankfully we don’t often experience gazundering or gazumping in Scotland but good reasons for delay don’t get the seller any nearer to the peace of mind of a concluded bargain. It is especially galling if the property had gone to a closing date and another offer had been turned down.

Sellers can express their dissatisfaction to their estate agent who will probably blame their solicitor.  The solicitor in turn will point out there is little he or she can do other than communicate the unsatisfactory  situation to the purchasers solicitor. The only alternative is to threaten to pull the plug …withdraw the acceptance and resile from the bargain. This may be unavoidable if you want to sell, particularly in a market where you have secured a good price or you fear alternative purchasers may be thin on the ground.

What can be done?

Some due diligence by the marketing team at the negotiating stage can help to sort the wheat from the chaff and at least better identify the potential prospects for a successful sale. Don’t be fooled by agents who put ‘sold’ on the sign even before the written offer is in…no doubt they want to give the impression to others that they sell quick and that they are the agents to use!

The reality is that a seller needs to be kept fully informed of each stage of the selling process. It is a difficult dilemma but there are options if your agent is on the ball and in the loop with your solicitor as well as the market conditions. One possibility is for a non-refundable deposit to be negotiated and paid before the property is marked as Under Offer, which inevitably chases other potential purchasers away.  Another option is for the purchaser to be told that the property will stay on market and open to view.  Perhaps the best way is the middle way and for viewings to be suspended for a limited period so the purchaser has a chance to get everything progressed so far as possible while still retaining a sense of urgency to conclude the deal as soon as he or she is able.

As Hastings Legal are Solicitor Estate Agents we are uniquely placed to offer a true Integrated Property and Legal Service

A service where both the marketing and conveyancing sides are in close communication with each other and clients can be kept informed and in control of the process.

Selling Agents shouldn’t be adopting an ‘it’ll be alright on the night’ approach with all the stress this puts on sellers. Our clients deserve better and we believe that our integrated marketing and conveyancing service is the way forward in these increasingly uncertain and complex times.

If you are buying in Scotland you will need a Scottish Solicitor.

If you are selling, Hastings Legal are the top-selling Solicitor Estate Agents in the Borders.

With a Solicitor/Estate Agent you have more control of the process
and because of our unique  No Key No Fee policy you are shielded from the legal costs if your property sale or purchase fails to materialise.

To find out what Hastings Legal

can do to help you find your ideal home or your ideal buyer give us a call or pop in to one of our offices in Kelso, Duns, Selkirk and Eyemouth.

It’s never too early to call Hastings Legal, your dedicated Borders firm of Solicitors and Estate Agents.

Here for you in the Scottish Borders
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