An overview of the basics.
The Scottish Standard Clauses (Edition 1), designed to represent a Scotland-wide approach to standard clauses for use in residential conveyancing transactions, came into effect on 5 January 2015 and were replaced by Edition 2 which came into effect on 3 May 2016.
It is hoped the Scottish Standard Clauses will lend greater certainty and efficiency in concluding missives than that afforded by the regime of regional standard missives.
See The Scottish Standard Clauses (Edition 2) Click Here
All In The Detail
The basis of all property transactions is set in a binding contract, otherwise known as the missives. Many people make the mistake of thinking that the deal is done when in fact the parties are still negotiating the deal. When negotiating either party can walk away. In the absence of any pre-contract deposit or agreement, neither party would hold liability. Yet when is the contract binding? This is an issue that you must really check with your lawyer. Do not make the assumption or take anyone’s word for it as contracts are slippery at best.
Avoiding The Contract
So you have a contract and one party is in breach (not sticking to the deal) or attempting to get out of a contract? Even after contracts are concluded many lawyers place conditions within the contract which allow their clients to withdraw without cost if specific conditions are not met. The most general conditions tend to be around the searches over the property, coal reports, debt and insolvency and in many cases if the property is badly damaged. Again we must stress that you check with your conveyancing lawyers as not every contract is the same.
The final throw of the dice is when the creative lawyer uses a legal gray area in the contract. Highlighted in Shakespeare’s Shylock – Merchant of Venice. Unfortunately this approach being less cut and dry is more use full as a line of argument if the parties go to court to settle the deal. This, in our opinion is never a very equitable path and negotiation or mediation may prove a better remedy.
Over the years very few people tend to seek court action to enforce domestic contracts. Given these facts and costs involved we always urge clients to check and double check that they have all in place. Funds, documents, bank details and always work with your lawyer to ensure that things happen when they need to. Secondly, sellers ensure that all documents are in place and you help progress all the questions put to your lawyers by the purchasers. If purchasing ensure that all your funding is in place and you have clear instructions from your bank and your valuer. In all cases your lawyers work with you providing the expert advice and as such we urge you to call your conveyancing Lawyers if you have ANY legal questions.