Whether you are buying or selling a property in Scotland, you will experience the legal process called ‘conveyancing’. Here is a simple guide to what conveyancing is, how long it takes and answers to some other frequently asked questions that property sellers and buyers in Scotland often have.
What is Conveyancing in Scotland?
Conveyancing is the legal process that takes place after you have agreed on the main details of buying or selling your house. It includes the creation of the contract that contains the terms and conditions of the transfer of ownership from one person to another. The contract is called ‘missives’ and involves the exchange of letters between the buyer and the seller’s solicitors.
The conveyancing process includes additional ‘searches’ being carried-out on the property and on the parties involved in the transaction. The lawyers check whether there are any outstanding communal repairs, whether the property complies with local regulations and whether any alterations are accompanied by the necessary permissions and paperwork. They also make sure that the buyer is actually getting what they believe that they are buying.
The various steps involved in conveyancing ensure that the buyer gets what they think they are purchasing and they help to prevent the buyer from being landed with significant costs after they have bought the property.
What Are the stages of the Conveyancing Process in Scotland?
Once the offer is accepted, the buyer and seller’s solicitors must negotiate the terms of the contract by way of exchange of ‘Missives’. This includes agreeing on issues such as the Date of Entry (when the buyer pays the money and the seller hands over the keys) and any additional items that are to be left in the property. The seller’s solicitor must send the buyer’s solicitor the Title Deeds for the property as well as a search of the Land Register to show that there is nothing that will legally prevent the seller from selling the property. The conclusion of this contract is called ‘conclusion of missives’.
2. Transfer of Funds
The buyer’s solicitor will ask the buyer to send the required purchase funds to the solicitor’s client-specific bank account. The buyer’s solicitor will also request any mortgage funds from the mortgage lender, where appropriate. On the Date of Entry, the buyer’s solicitor pays the purchase price to the seller’s solicitor. The seller then gives the buyer’s solicitor the paperwork that facilitates the transfer of ownership of the property to its new owner.
All being well, when the buyer’s solicitor confirms that they are happy with the paperwork and the seller’s solicitor confirms that they have received the purchase price on behalf of the buyer, the transaction is treated as ‘settled’. The buyer often picks-up keys from the seller or from the seller’s solicitor or estate agent and can begin the process of moving into their new home! The final steps in the process are for the buyer’s solicitor to inform Land Registers that their client now owns the property and to pay any Land & Buildings Transaction Tax that the buyer is liable to pay to the government.
How Long Does the Conveyancing Process Take in Scotland?
Good question! This varies from transaction to transaction and is often dictated by the length of time that the seller wants to remain in their property after agreeing their sale.
On average, there is usually 6 to 8 weeks from the sale being agreed to the Date of Entry.
Apart from the desire of the buyer or seller that the process takes a certain amount of time, other factors that can affect the length of the conveyancing process include:
- The seller not owning the full extent of the property that they have marketed through their estate agent or being legally prevented from selling the property, for example if the property is subject to legal proceedings;
- Additional paperwork being needed, but difficult to obtain, relating to alterations;
- In Edinburgh, ‘Statutory Notices’ applying to the property and often requiring a significant amount of additional legal work to satisfy the buyer and seller that they are adequately covered in the event of the Statutory Notice ever being enforced;
- Additional anti-money laundering checks being legally required before the property transaction can settle, sometimes because the buyer hasn’t known, or hasn’t disclosed to their solicitor, that the source of the purchase funds includes money coming from a relative or in cases where the seller has decided, sometimes late in the day, that the sale proceeds should be paid to a different party;
- The conveyancing process revealing that an additional party is named as an owner on the Title Deeds when the seller either hasn’t been aware or hasn’t revealed to their solicitor that this is the case.
Unfortunately, with many solicitors offering different levels of contact and service to their clients, we quite often encounter situations where solicitors resort to a simple ‘blame game’, telling their own client that they are waiting for paperwork from the other party’s solicitor. It’s not uncommon for sellers or buyers to get in touch with us, telling us that the other party in their sale or purchase has been on the phone to them, telling them that their solicitor has said that we are holding-up the conveyancing process. It also wouldn’t be the first time that we have sent them two examples of letters that we have sent to that solicitor, chasing a response from them!
As this situation arises more commonly than we would like, we would simply ask sellers and buyers not to jump to conclusions when they hear things like this from the other party involved in their sale or purchase, whoever their own solicitor is.
How Long Does It Take to Conclude Missives in Scotland?
An issue that causes some anxiety during the conveyancing process is how long it takes for missives to be concluded. Since conclusion of missives involves the buyer being contractually bound to buy the property, the buyer’s solicitor cannot conclude missives until they can be sure that the buyer is able to pay for the property.
Most property purchases involve a mortgage. It’s not possible to submit a full mortgage application until the seller has accepted the buyer’s offer to purchase the property. If the buyer’s mortgage lender takes 6 weeks to process the buyer’s mortgage application and to send-out the mortgage offer to their solicitor, it is highly unlikely that the buyer’s solicitor will be able to conclude missives until they have the mortgage offer in their possession.
Other issues that can hold up the conclusion of missives most often involve issues that the buyer and seller are struggling to agree upon or issues coming out of the woodwork, once the seller or buyer’s solicitor has received the Title Deeds or searches relating to the property, that often even the seller is unaware of.
The conveyancing process can often be much slower than clients expect, with a few days passing between communications from one solicitor to the other.
With Scottish solicitors most often still negotiating Missives by exchange of physical letters, lenders taking several weeks to issue mortgage papers and with Local Authorities regularly employing a standard, 10 working day turnaround time before they will respond to queries, buyers and sellers (and indeed their solicitors!) often feel that this stage takes longer than it ought to.
If you have any questions about the conveyancing process in Scotland, why not give the team of legal experts in our Conveyancing Department a call on 0131 297 7999 and somebody will be delighted to help.