We are regulated by the Law Society of Scotland and subject to the law of Scotland.

We are obliged by Law Society of Scotland rules as well as by the law of Scotland to ‘know our client’ and to prevent financial crime. One of the ways that we are required to make sure that this happens is to take steps to be sure of the identity of our clients.

Sometimes we are required to seek further evidence of identity, beyond a simple passport/driving license and utility bill and we simply ask clients to understand that we have no option but to comply with the rules of our regulator and the laws of the land.

We do everything that we can to minimise the hassle that this causes our clients as well as to comply with our obligations under these rules and laws but there is no getting around the fact that, sometimes, it can be an inconvenience for our clients.

The ‘missives’ comprise the original Offer to purchase the property and all contractual letters exchanged between the purchaser and seller’s solicitor until the contract is concluded (‘missives are concluded’), creating a binding contract between the seller and the buyer.

The offer and all contractual letters are signed by the solicitors after taking instructions from their respective clients.

You therefore don’t have to sign the missives paperwork yourself.

There could be a number of reasons for this.

Mortgage Offer

Almost all buyers’ solicitors these days will not conclude missives before the property buyer’s lender has sent them the formal Offer of Loan. Some lenders can take several weeks to issue mortgage paperwork to the buyer’s solicitor and this alone can delay the conclusion of missives.

Points of Negotiation and Alterations

Initial negotiations about a sale tend to focus on the price, date of entry and any other additional moveables that the buyer wants included in the sale. However, it’s often only when the conveyancing paperwork is received and the legal searches are ordered that further issues come out of the woodwork. These issues often will require further negotiation between the seller and buyer before missives can be concluded.

The offer might have been accepted subject to further conditions, for example the seller getting a specialist report about the condition of the roof, knotweed, damp or some further issue. Depending on the results of that report, further negotiation might be needed before the solicitors can focus on the other legal issues that have to be resolved before missives can be concluded.

One of the biggest causes of delays is the Home Report or further surveys revealing that alterations may have been carried-out to the property. Sellers often cannot readily put their hands on the relevant paperwork and permissions, or the age of the alterations cannot quickly be established, and this can cause significant delays.

Old School Communication

Some solicitors do simply take a while to respond to correspondence, whether that is by letter, phone or email, sometimes because of holidays or other pressures of work. Many solicitors still don’t use email to communicate about missives. Using physical letters rather than email naturally slows-things down. We will try to let you know if we are experiencing delays as a result of these sorts of issues.

You may have to come into the office, because the documents are typically available quite close to completion. However, we may be able to email or send documents to you, explaining the content and effect of the documents. In all cases, we require the principal documents back from you prior to completion.

If you are going to be somewhere far flung where receipt or dispatch of email or post could be difficult, please advise your legal case manager as soon as possible.

If you are unable to attend our offices and it is possible that we may require signature and return of documents at short-notice, we may be able to arrange this by way of you signing a limited-scope Power of Attorney that allows us to sign these documents on your behalf. If this applies to the circumstances of your sale, we will of course discuss this with you in advance of this becoming an issue that might cause any problems during your sale or purchase. If a Power of Attorney is required, then an additional fee will be payable for this service.

We will send you Guides that help you with this, as and when we send you any documents for signing. If you have any questions or are concerned about signing in the wrong place, we will of course talk you through this process nearer the time.

Statutory Notices were issued by the City of Edinburgh Council as a way of dealing with common repairs in tenement buildings.

Where a building needed significant maintenance, the owners were given an opportunity to agree amongst themselves how they would deal with these repairs and to go ahead with the work. Where they failed to carry-out the work themselves, the Council issued a Notice to the owners and the Council arranged for the work to be carried-out. A bill was later issued to the owners, by the Council, for the work that was done. The bill was divided-up and the owner was asked only to pay their share of the bill.

The cost, however, is not fixed and the price for the work could either be lower or higher than the original estimate that the Council provided with the Statutory Notice.

If a Statutory Notice has been issued on a property, there is a legal requirement to pay the share of the bill that is due under that Statutory Notice. When someone is buying a property where a Statutory Notice has been issued but the work has not yet been done, that buyer will want to know that the seller is going to be in a position to pay for the work when it has been done.

As a result, buyers have traditionally asked to ‘retain’ an amount from the purchase price where there is a Statutory Notice on the property, just in case the current owner decides not to pay for their share of the Statutory Notice when the work is complete. That amount tended to be the amount of their share of the Statutory Notice, plus 25% of that amount, just in case the final bill was higher. The buyer’s solicitor would retain the funds and, when the work had been done and the seller provided evidence that they had paid the Statutory Notice, the ‘retained’ funds would be sent to the seller. Obviously, this had quite a significant financial impact upon the seller and would reduce the amount of money that the seller received at the time of the sale and that they could put-towards the purchase of their next property.

Things became infinitely more complicated a few years ago when the department at the City of Edinburgh Council that handled the Statutory Notices scheme was suspended and a criminal investigation started into fraud within the department. Unfortunately, all of the Statutory Notices that had been issued remained in place and the legal requirement to comply with them also remained in place. Sadly, there was nobody working within the City of Edinburgh Council to enforce them or to ensure that the work that the Statutory Notices were trying to enforce would be done.

What this meant for property sellers and buyers was that ‘retentions’ relating to Statutory Notices might never actually be released to property sellers. Without the Council ensuring that the common repairs were actually done, the Statutory Notice could never be lifted, but it remained in force until such time as the department within City of Edinburgh Council started operating again. At the time of writing, several years after the department was suspended, that has still not happened.

Unfortunately, when dealing with a property where there is a Statutory Notice, the conveyancing process is more complicated and there is extra work required to protect the position of both the buyer and the seller. That is why Statutory Notices are in our small list of circumstances in which additional fees apply and you will find full details of this in your Welcome Letter.

Statutory Notices are only rarely served by Councils, nowadays, but can still occur. There is now standard wording in most sale and purchase contracts which means that if an older statutory notice still shows up against a property, if no work has even been commenced, the Seller has no liability for the notice. This is because older notices of this type are never going to be enforced by the Council. From a Purchaser’s point of view, if any such notice was for work which was genuinely required then any such work which remains outstanding should be referred to in the Home Report and taken into account in the valuation figure.

If you have not obtained the correct permissions from the relevant Local Authority, they may have the power to ask the current owner to return the property to its original condition.

If you are purchasing a property, you will want to know that this cannot happen to the property that you are buying. If you are selling a property and your property shows any evidence that it has been altered from its original condition or layout, the buyer will want to know that this cannot happen to them. It will be up to you, as the seller, to prove this to them.

The Home Report and/or a survey that a buyer or their lender might get from a firm of Chartered Surveyors will highlight alterations. If alterations have been made without the owner getting the correct permissions, after a number of years the law says that alteration documents will not be needed and the Local Authority cannot ask for the work to either be removed or remedied. The generally accepted cut off period is twenty years but, from a Seller’s point of view, proving that any alterations were carried out that long ago can be an issue.

The more paperwork that you have about alterations, the less likely it will be that the conveyancing process will be delayed because the buyer is waiting for the paperwork that they need to allow them to buy the property with confidence.

As early as possible in the sale process, Sellers should hand over any documents they hold for any structural alterations carried out by them. For example, in the case of an exempt conservatory, this would include evidence that such consents were not required. From a Building Control document point of view the important documents are a Certificate of Completion and Stamped Building Warrant Plans. If you do not have these, your architect should be able to provide these. If, as a Seller, the Home Report for your property refers to the property having been altered or states that the property was constructed less than 20 years ago then, if you have not carried out any alterations and do not hold any documents, you should ask the Solicitor who acted in the purchase of the property for you to advise where any such documents are. To check whether this applies to you, have a look at the first page of the Valuation Report in the Home Report which contains a YES/NO box relating to alterations.

The lack of documents for alterations is one of the biggest causes for delays and issues arising in sale transactions.

The buyer’s original Offer will contain a proposed Date of Entry. That is the date on which the seller receives the Price for the property and the buyer gets to go through the front door of their new home and is also known as ‘settlement’ or ‘date of settlement’.

Both sets of solicitors will be working towards the proposed Date of Entry, however there are a number of things that can delay the ‘settlement’ and we have tried to provide examples of these things elsewhere in these FAQs. Frustratingly, they can be completely out of your hands and it may be that, if the delay is too significant, you might want to pull-out of negotiations on either the sale or purchase.

After the Date of Entry, the solicitors still have some more work to do to tie-up the purchase or sale transaction. However, as far as most sellers and buyers are concerned, the conveyancing process ends at the Date of Entry and when they either receive their keys or receive the money from the sale.

Outlays are costs that we pay for you.

In a standard purchase these would include what we pay to Registers of Scotland to register your title deeds (the `disposition`), the deed you sign in favour of your mortgage lender to secure the loan funds (the `standard security`) and the Land and Buildings Transaction Tax (LBTT) payable.

In a standard sale these would include all estate agency and marketing costs. The conveyancing outlays would be the cost of a Multisearch, sometimes a Coal Authority Report, the cost of registering the Discharge of any security granted over your property in favour of a mortgage lender, the cost of an Advance Notice and also any bank charges (CHAPS) incurred when redeeming your mortgage or sending you sale proceeds.

During the sale, the solicitor for the seller registers an Advance Notice with Registers of Scotland five working days before completion of the sale.

The Advance Notice is a form that is sent to Registers of Scotland and it confirms details of the purchaser and seller along with details of the property that will be registered with Registers of Scotland after the date of entry.

Registration of the Advance Notice allows the purchaser’s solicitor a ‘protected’ period of time in which to deal with the registration of title and of the Standard Security deeds after the Date of Entry. This means that a third party cannot register a ‘competing’ title during the protected timescale.

The ‘missives’ comprise the offer and all contractual letters exchanged between the purchasing and selling solicitor until the contract is binding on both the purchaser and seller. The offer and all contractual letters are signed by the solicitors after taking instructions from their respective clients.

You should not worry that you will find yourself in the position of not having actually signed anything but committed to a purchase or sale. In a Scottish sale, missives are often concluded a few weeks before the date of entry. However there can be delays in concluding missives if any complications arise or if the purchaser is waiting for the official offer of loan (mortgage).

We will provide you with regular updates on your sale or purchase so you will know as soon as missives are concluded. Once missives are concluded you can then make arrangements such as booking a removal firm or arranging or cancelling services such as telephone, broadband, gas and electricity.

The Disposition is the title deed signed by the seller and delivered to the purchasing solicitor in exchange for the selling price on completion of the sale.

If you are a seller, you must return this deed to us in good time before completion of your sale. We will of course guide you through this closer to the time.

How to sign the documents

Most documents require to be witnessed. The witness must be an independent person and not a spouse or family member.

Please complete the place and date of signing together with full name and address of your witness. Please then return the documents to us.

Notes on signing the disposition

Documents must be signed by all parties named in it, in the presence of a witness over the age of 16 years old and who is known to the parties. Any person who has an interest in or who may benefit from the contents of the document should not act as a witness. The witness does not need to read the document or to know what it contains.

The parties named and the witness should each sign in ink using his or her normal signature. If any party is blind and/or unable to write, a special procedure must be followed. It is essential that you contact us immediately if this is the case.

It is not recommended that you make such arrangement until you have a binding contract. Once missives are concluded however, it is usually safe to proceed to make your arrangements.

If you are purchasing, you should ask any service providers not to send paper correspondence to the new address until you take ownership of the property as it can be cause irritation to sellers. If you are aware that this is likely to happen, as a courtesy you may wish to speak with the sellers to let them know some mail will be arriving and ask them just to put it to one side for you.

In turn, the seller should make arrangements to inform service providers of any meter readings that are taken as at the Date of Entry, or as close to this date as possible. This will ensure that accurate final invoices are sent by the providers.

If we are instructed in your sale, we will inform the Local Authority of any change of ownership for Council Tax purposes too.

Searches are reports obtained as part of the sale process. We usually instruct a `Multisearch` at the start of a sale and receive a free update from one of our panel searchers later in the transaction.

The multisearch consists of a Legal Report and Property Enquiry Certificates.

The Legal Report includes searches in the Land Register of Scotland to check who currently owns the property, the Inhibitions Register to enable us to confirm whether any court `inhibitions` are registered against the property, preventing the property from being sold, and also an Insolvency search. Separately a Company search may be required (if the seller is a Company).

The `Property Enquiry Certificates` contain information provided from Local Authority records. This would include the following information.

1. Whether a property is situated in a Conservation Area or if it is a Listed Building
2. Information on whether the property is connected to public or private water and drainage
3. Details of any Statutory Notices affecting the property
4. Details of any Planning/Building Control documentation
5. Confirmation of whether the roads and footpaths adjoining the property are public or private

In some circumstances a Coal Authority report is also obtained. This will depend on whether the property is in a coal mining area. The Law Society of Scotland have a list of areas and if your property is in such an area a report will have to be obtained.
We will provide you with details of all reports we anticipate will be required when we issue our letter of engagement and terms of business.

This will depend on whether there is a ‘Survivorship Clause’ in the title for the property.
At the time of your purchase, your solicitor will have given you the option to include such a clause. It may not be appropriate for your circumstances.

If, for example, you have had tax advice for Inheritance Tax (IHT) purposes or succession planning advice from a Private Client lawyer or a Wealth Planner, it may not be beneficial for the property automatically to pass to the survivor.

It may be preferable in some circumstances to take title without a survivorship. In such cases it is advisable to have Wills drafted to determine who would inherit your share of the property when you die.

If you do not have a survivorship clause and you have no Will, there is a risk that some of your family may inherit a share in your property when this may not have been your intention at the time when you bought the property jointly with your spouse or partner.

If you do not have a Will, we can arrange to put you in touch with a solicitor who can prepare a Will for you.

As there are a variety of options available, every case must be considered on its own merits.

From a Seller’s point of view it is very important to check before instructing us to market your property that, where a title was jointly held with another person who has passed away, the title to the property is fully vested in you. This will either be as a result of a Survivorship Clause – mentioned above – or as a result of Confirmation being obtained from the Sheriff Court for the estate of the deceased person and the subsequent transfer of their share to you. If an offer is accepted and as a seller you do not hold title to 100% of the property, this can lead to significant delays in completion of the transaction, and can increase the likelihood of any agreed sale falling through.

This only happens in fairly rare cases where there is a ‘gifted deposit’. In short, if we are receiving funds from someone who isn’t a client, whether it comes directly to our bank account or via your own bank account, we are subject to the same rules as if the funds were coming from you. In other words, our obligations under Law Society of Scotland rules and the law of Scotland to ‘know our client’ and to prevent financial crime apply to them too.

As with our own clients, we do everything that we can to minimise the hassle that this causes, but we simply ask our clients and any other parties whom we are obliged to fully identify to understand that we have no option but to comply with the rules of our regulator and the laws of the land.

As part of our obligations to the Law Society of Scotland as well as the law of Scotland to prevent financial crime, if we are receiving money, we have to take steps to ensure that we know where it has come from. This obligation covers our own clients and anyone else who might be providing funds for a property purchase.

We might therefore have to seek evidence of where funds are coming from and, as with all obligations imposed upon us to prevent financial crime, we simply ask our clients and any other parties to whom we are obliged to apply these rules to understand that we have no option but to comply with the rules of our regulator and the laws of the land.

Yes, you can!

If you have not concluded missives for your sale, we would not usually recommend that you conclude missives on your purchase.

You should also beware that, although concluded missives for your sale do create a contractual obligation for the buyer to buy your property, this does not guarantee that the buyer will be able to pay the purchase price on the Date of Entry. This happens rarely and, as a seller, you are still protected via penalty clauses in the missives that cover this exact scenario, but it is something that sellers who are also buying a property should be aware of.

Trying to tie-together the Date of Entry for your sale and your purchase can be very stressful and it only takes a small glitch in the missives process on your purchase for these arrangements not to work out. We would therefore always recommend that people who are hoping to move-in to their new property on the same day as their sale completes have a back-up plan for accommodation and storage. We would also always recommend that, until missives are concluded on your sale and your purchase, you do not pay any non-refundable deposits for storage or removals and that you do not start moving-out any furniture.

This is a short answer: yes!

Our Conveyancing Department handles the conveyancing for property sales and purchases, so we can act for you on both.

If you are a buyer, we will do our best to fix a specific time for you to collect keys and we will do this as early as possible in the process.

Generally-speaking, keys are released from the office of the solicitors or the estate agents who are marketing the property or they are sent to us, along with the legal documents required for settlement of the case in a ‘Settlement Pack’. That means that they will be in the same MOV8 office in which your Case Manager is based.

If you require keys to be sent to you, for example to your place of work, this can be arranged but we will need to charge you a courier fee for this and will therefore need to know about this in advance of the Date of Entry when we are preparing the final account for your case.

Whether you are buying or selling, you should discuss your requirements with your Case Manager before arranging a removal firm or arranging for the connection of services such as telephone or broadband on the Date of Entry.

It may be that your Case Manager will be able to insert a specific condition in your purchase or sale contract to cover your specific requirements, so you should mention these as soon as possible in the process to give us time to try and arrange this for you.

As there are a lot of tasks that have to be completed by both the purchaser and seller’s solicitor on the Date of Entry, it is advisable to keep your arrangements as flexible as possible.

If the seller of the property that you are purchasing is also moving home on the same date, it will generally be the case that the keys will not be available until the afternoon.

When you take entry to the property the contractual position is generally that the property should be in the same condition as when you viewed it, “fair wear and tear excepted”. What does this mean in practice?

If something is not working or is damaged, the cost of fixing it has to amount to more than £400 before you may have any legal rights. So, if some bulbs are missing or the garden is messy, this may be inconvenient, but it is not something that would be worth raising as a claim under the Missives.

Sometimes when you move-in you will find defects that were not obvious at the time you viewed the property or that were mentioned by the surveyor in the Home Report. Generally-speaking you will have little or no rights in respect of relatively minor matters and the concept of ‘buyer beware’ applies.

The condition of the central heating system and any other systems and items of a ‘working nature’, such as white goods in the kitchen, should be in the same condition as when you originally viewed the property and should be in working order that is appropriate for their age and type. Accordingly if systems and appliances are very old there is probably very little that you can do. However, for newer items you are more likely to have redress.

Generally-speaking you only have five working days within which to intimate defects and accordingly you must test the central heating and working items as soon as you move in then let us know if you feel that any items are not working properly. It is advisable to consider having systems tested by qualified tradespersons, particularly if safety is any concern.

We are able to raise the matter with the seller’s solicitor, however any subsequent disputes are not covered under our conveyancing fee and you will have additional legal costs if you wish to pursue a claim. Details of what this would cost can be found in our Welcome Letter.

If you are purchasing a property, we will ask you at the start of your transaction about the source of funds for your purchase along with details of any split in contribution by the parties.

We will also ask you to confirm in writing whether you will be taking title in equal or unequal portions. Why does this matter?

In some cases purchasers have inherited wealth or for other reasons are contributing unequal portions. In such cases it is recommended that both parties consider taking advice from a Family Lawyer in case it is appropriate to enter into a co-habitation agreement or pre-nuptual agreement (if unmarried) or a post-nuptual agreement (if married).

We can arrange to put you in touch with a Family Lawyer if such advice is required. Both parties will require to be separately represented if family law advice is required. While we recommend that parties take such advice at this stage it is not compulsory.

Sellers will usually only allow a potential buyer to access to the property after conclusion of ‘missives’, in other words when there is a binding contract. Selling solicitors often recommend to their clients that no access should be allowed prior to missives concluding. Why?

It is not uncommon that a purchaser will have a change of heart after re-visiting the property. Additionally, it is an added incentive to the buyer to conclude the contract so that they can get access and start planning for their new home.

Once missives are concluded, the buyer will be allowed access after reasonable notice is given to the seller. We generally recommend that we contact the selling agents on your behalf, requesting access, once you know that missives are concluded. You should try to be as flexible as possible with access arrangements.

If access is required when the seller cannot be present, the selling agent may facilitate access by using the services of a ‘viewing agent’.

Unfortunately not. Whilst it would be a convenient option for a purchaser, a seller will rarely allow this as the purchaser does not actually own the property until ‘settlement’ takes place. In other words, the buyer doesn’t own the property until the purchase price has been paid by the purchasing solicitor in exchange for the necessary legal documents that are referred-to in the missives on the Date of Entry.

Even if the seller is willing to comply and allow work to be carried-out, the seller’s lender (mortgage provider) would also require to provide a consent to this happening. It is extremely unlikely that a lender would provide any consent except in exceptional circumstances, such as if a property is in a serious state disrepair and there were a risk of the value of the property diminishing without the works being carried-out.

There were laws introduced in the 1980s to protect the occupancy rights of spouses. These rights were, in recent years, expanded to include Civil Partners.

Accordingly, before a lender will send loan funds, documents exist that protect the purchaser and their lender (mortgage provider) against the rights that any spouse, partner or Civil Partner of the seller may have if the lender has to ‘call-up’ the security and repossess the property in the future, for example if the purchaser is unable to keep-up mortgage payments. The same may apply to a remortgage case.

If you are asked to sign these documents, you are being asked to declare that no other person has any such statutory rights in the property. We will keep you advised as to what is required you as part of the purchase process.

Title deeds are generally held by lenders until the mortgage is redeemed (paid-off) in full. However it is more common now for lenders to ask solicitors or the borrower to hold-on to the titles.

Every lender has its own set of requirements so we will let you know during your purchase what options are available.

There are usually important documents held with title deeds such as alterations documentation, specialist reports and guarantees.

While it is quick, easy and inexpensive to obtain an electronic copy of your title deeds (e.g. the Land Certificate), it is not so easy to replace some of this other documentation, so it is important that, if you are personally retaining any documentation, it is kept accessible but safe.

If you have a Will, you may wish to let the executors of your Will, or your close family members, know the whereabouts of your Title Deeds, just in case the worst were to happen and these needed to be located in the event of your death.

MOV8 Real Estate can hold the title deeds on your behalf. There is an annual charge for this and full details are in our Welcome Letter and Terms of Business.

This will depend on on whether you intend that the title of the property is automatically to pass to your partner in the event of your death. If this is your intention, this can be achieved by adding a ‘Survivorship Clause’ into the title of the property.

At the time of your purchase, we will give you the option to include such a clause. This may not be appropriate for your circumstances and every case will require to be considered on its own merits.

If you are unmarried and have no Wills, it may be advisable to include a survivorship clause but this will depend upon all of your circumstances, including what portions of the purchase price each purchasing party is contributing.

If, for example, you have had tax advice for Inheritance Tax (IHT) purposes or succession planning advice from a Private Client lawyer or a Wealth Planner, it may not be beneficial for the property automatically to pass to the survivor.

It may be preferable in some circumstances to take title without a survivorship. In such cases it is advisable to have Wills drafted to determine who would inherit your share of the property when you die.

If you do not have a survivorship clause and you have no Will, there is a risk that some of your family may inherit a share in your property when this may not have been your intention at the time when you bought the property jointly with your spouse or partner.

If you do not have a Will, we can arrange to provide you with advice and to draft one for you. In will be able to refer you to one of a panel of trusted legal advisers that we work with.

If you are a seller and we do not already have keys for your property, we will usually need to provide your buyer with sets of keys in advance of, or on, the Date of Entry.

These are often included in a ‘Settlement Pack’ that we send to the buyer’s solicitor a day or two before the proposed Date of Entry. The Settlement Pack includes important paperwork as well as the keys for the property, allowing the buyer to collect keys from their own solicitor.

Of course, some buyers prefer to collect keys from one of our offices or branches, if it’s more local to them or the property. These arrangements should all be made well in advance of the Date of Entry but it’s not uncommon for buyers to have a last-minute change of heart about where they want to collect the keys from.

If you are happy to send your keys to us by post, you do not need to come to our offices to deliver them to us. If you are posting keys we would ask that you send them by tracked mail and in a secure, padded envelope. If you do decide to post your keys, we cannot take responsibility for the keys whilst they are in transit.

We require the keys at least three working days in advance of the Date of Entry to allow us to securely log them and make arrangements for onward transfer to another of our branches, if necessary. If keys are delivered later than that, we may require to charge you a courier fee to get the keys to the correct destination on time.

This is understandably one of the most important questions that property sellers have and the answer depends on a number of factors.

Cleared Funds

We require to have cleared funds before we can pay money out to clients. This means that they money must be available in our bank account, as cleared funds, before we can instruct a payment to our clients.

Cheques

If we are paid the Price for the sale of your property by cheque, we will have cleared funds within approximately 4 working days of banking that cheque on the settlement date.

Because we have to wait for the cheque to clear, we cannot make any payments until we have cleared funds.

CHAPS

If we are paid the Price for the sale of your property by CHAPS (same-day electronic bank transfer), we will have cleared funds on the same day as the settlement date.

Final Checks, Cash Account and Fee Note

Before we can pay monies to you, we have to do a number of checks. These checks ensure that we are retaining the correct amount of money to pay all necessary outlays and fees on your case, as well as retaining enough funds to pay-off the balance of your mortgage (if applicable), before then distributing the rest of the funds (the ‘Free Proceeds’) of the sale.

We also have to send our clients a Fee Note and Cash Account that tells them the movement of all monies in and out on their case.

Calculating the Funds Payable

We calculate and subtract the payments that you have to make to us for our own fees for the conveyancing work, along with any outlays that we have incurred on your behalf during the transaction, and should be left with a balance. If there is a shortfall, we will get in touch with you to arrange payment of that shortfall.

If you are purchasing another property, we calculate our fees and any outlays due, the amount that you paid for the property less any mortgage funds that we received on your behalf. This is all done prior to settlement so that we know if there is an outstanding balance that we require from you in order to allow us to make the payment of the purchase Price of your new property.

Once we have gone through this process and made all of the payments to the various parties that need to be paid, we will then transfer the remaining balance from the transaction(s) to you.

Redeeming the Mortgage

If you have a mortgage, we will have to pay-off that mortgage, unless you are ‘porting’ it to another property that you are buying.

The first thing we need to do, after we have cleared funds, is to make a payment to clear that balance/redeem your mortgage as it minimizes the interest that you will pay on the mortgage.

Bank Mandate

Before we can distribute the Free Proceeds to you, we have to ensure that we have a completed bank mandate. We will tend to double-check the details in that bank mandate with the people who the mandate refers to, to ensure that the bank details are correct and to ensure that we are paying the funds to the correct people. Depending on when we received the Mandate and on how many people are named on the mandate, this can mean that there are a number of people whose details we need to confirm with them. If we are unable to contact the people named on the mandate, this can cause some delays with distributing the funds.

Payment by CHAPS or Cheque

We tend to pay the free proceeds by CHAPS (same day electronic transfer). We authorize all of our CHAPS transfers towards the end of the business day in one ‘batch’ authorization.

By redeeming mortgages by CHAPS, our clients save on paying a few days’ interest and there is less chance of the lender losing a CHAPS payment than a cheque, in our experience. Our charges for CHAPS payments can be found in the Welcome Letter.

Sometimes a lender will charge a Redemption Fee as an administration charge. The circumstances in which a Redemption Fee is payable will have been outlined at the time that you took-out the mortgage. It is often payable if you have taken a mortgage ‘product’ that has a tie-in period, for example during the first three years of a 3 Year Fixed Rate mortgage.

If your lender intends to levy the Redemption Fee, this charge will be detailed on the Redemption Statement that we request from the lender. We will send you a copy of the Redemption Statement for your approval when we receive it at the start of the sale transaction and then we will get an updated Redemption Statement shortly before completion of your sale.

When we redeem your mortgage we usually do so by CHAPS (electronic same day bank transfer). Details of the charges for CHAPS payments are outlined in our Welcome Letter and Terms of Business.

When you took out your mortgage you signed a deed called a Standard Security. This was registered with Registers of Scotland to evidence the advance of the loan funds paid to you by your lender.

When the loan is redeemed (paid-off) in full, your lender has a legal duty to ‘discharge’ that Standard Security.

Usually the Discharge is signed by the lender after the sale price has been received. The selling solicitor will draft a Discharge and send it to the lender for signing. Once the lender has signed and returned it to us, it is sent to Registers of Scotland for registration. When the Discharge has been registered you no longer have any legal responsibilities under the terms of the Standard Security and any reference to the Standard Security is removed from the title of the property.

It is important, when we are acting for a purchaser, to ensure that the seller’s Standard Security is discharged so that, if the purchaser is buying the property with a mortgage, the security that the purchaser signed will ‘rank’ first on the title.

You do not have to be selling your property for the Standard Security to be discharged. If you are remortgaging or you find yourself in a position to redeem your mortgage at any other time, a Discharge can still be sent to your lender for them to sign and for us to register.

The multisearch consists of a Legal Report and Property Enquiry Certificates. When we are acting for a property seller, we are required to provide these searches as part of the sale contract. Essentially, it is a check of any issues that would prevent the seller from being able to sell the property.

We usually instruct a ‘Multisearch’ at the start of a sale and receive a free update from the searching company later in the transaction.

The Legal Report includes searches in:

• the Land Register of Scotland to check who currently owns the property,
• the Inhibitions Register to enable us to confirm whether any court ‘inhibitions’ are registered against the property and that would prevent the property from being sold, and
• an Insolvency search.

Separately a Company search may be required (if the seller is a Company).

The ‘Property Enquiry Certificates’ contain information provided from Local Authority records. This would include the following information.

1. Whether a property is situated in a Conservation Area or if it is a Listed Building
2. Information on whether the property is connected to public or private water and drainage
3. Details of any Statutory Notices affecting the property
4. Details of any Planning/Building Control documentation
5. Confirmation of whether the roads and footpaths adjoining the property are public or private

Sometimes other searches such as Coal Reports are required.

Details of any searches we anticipate will be required are detailed in our letter of engagement and terms of business.

If everything has gone to plan, it tends to take place on the agreed Date of Entry.

On the Date of Entry, the seller’s solicitor will receive a settlement cheque (or, in a small number of cases, electronic funds) from the purchasing solicitor. You should note that the cheque will have a clearance period in the same way as other cheques that are presented to a bank.

The cheque is sent in exchange for a ‘settlement pack’ that we send to the purchasing solicitor. This settlement pack might include:

• any title deeds and other documents we have agreed to deliver during the ‘missives’ stage;
• the ‘Disposition that you signed;
• a set of keys for the property (however, most often keys are released to the purchaser from one of our offices after settlement of your sale),
• the Discharge of your Standard Security, if the lender has signed and returned it.

Most often, the Discharge will usually follow within 21 days of the Date of Entry as lenders are usually reluctant to sign and return it to us until the mortgage has been redeemed in full.

Once both the selling and purchasing solicitors are satisfied that they have all that they need to settle the sale, they will agree settlement by phone or by email. The seller and purchaser are then informed by their respective solicitors.

Only at that point should a seller cancel their buildings insurance as the risk passes to the purchaser once settlement has taken place.

When negotiating the ‘missives’ or sale contract, it is important that you let us know if you intend to remove any fixtures and fittings that the purchaser might have seen during a viewing of the property. Light fittings are an example of this type of fitting.

As a general rule, if items are attached, wired or plumbed-in, or if by removing them you would cause damage to walls or other surfaces, these items would normally be classed as fixtures and fittings.

The ‘Combined Standard Clauses’, which are most often the terms and conditions that the purchaser’s Offer is dependent-on, actually contain a clause that specifically lists the types of fixtures and fittings that are included in the purchase Offer. A copy of these Combined Standard Clauses, if appropriate, will be sent to you at the beginning of your transaction and you can have a look at this clause to give you an idea of what the buyer believes that they are buying with your property.

If you think that you will be removing any such item, you may need to replace it with something similar. If you intend to remove any item, we would recommend that this should be disclosed in the sale contract. If you are in any doubt as to what items are classed as fixtures and fittings we will guide you.

If you are selling, you should tell us if you are separating or if you are a party to a divorce. In such cases we can only sell your property if there is a signed Minute of Agreement confirming what is to happen with the property as part of that Agreement.

We will need to know if we can take instructions from either of you, or from both you and your spouse or partner, when dealing with your case. Sale proceeds will be distributed in accordance with the terms of your Separation Agreement unless we receive instructions to the contrary in writing from both of you.

If you are a party to a divorce, we will require to disclose this when negotiating the ‘missives’ or sale contract with the purchaser’s solicitors.

We cannot directly provide you with any legal advice in relation to your separation or divorce.

However, if either of you require advice from a Family Lawyer we can refer you to one of our panel of trusted legal advisers.