Frequently Asked Questions

• I am thinking of buying a residential property. At what stage should I appoint a solicitor?

  • This should be one of the first things you do. Make sure you ask for an outline of fees and outlays and confirm who you will be dealing with and that you are comfortable with them. Your solicitor will require ID and details of the source of your funds.

    The earlier you deal with this the better, as only then will your solicitor be able to act on your behalf. It is sometimes necessary to move very quickly and, therefore, if you have appointed someone, and dealt with the initial due diligence, there will be no delays when you find the perfect property.

    You can simply pick up the phone or email your solicitor. Your solicitor can also provide invaluable advice and guidance on the process and market conditions.

• I need a mortgage. What do I need to do?

  • At the same time as appointing your solicitor, you should consider appointing a mortgage adviser to provide you with advice on what level of mortgage may be available to you, and to obtain a mortgage offer in principle.

    Sellers like to know that you have this, and it gives you the comfort of knowing that, provided you have all the supporting paperwork, you are likely to secure a mortgage for your purchase.

    You can source a mortgage without the help of an adviser but there are so many products available that it can be helpful to have expert guidance on the best product for you.  They will also help you with the full application, which you will submit once you have successfully offered for a property.

• What is noting interest?

  •  If you view a property that you really like, you should ask your solicitor to note interest. This doesn’t commit you to doing anything but means that you should be kept informed of developments such as the setting of a closing date for offers.

    It does not mean the seller has to give you the opportunity to offer. The seller can accept an offer before a closing date is set, but generally, if a seller has a number of notes of interest, they will set a closing date. Before a closing date is set it is open to anyone to submit a pre-emptive offer and your solicitor can offer further guidance on this.

• What is a Home Report?

  • With a small number of exceptions, most homes on the market in Scotland must have a Home Report in place. A Home Report has three keys elements:

    (i) a survey and valuation
    (ii) an energy performance certificate
    (iii) a property questionnaire

    The reports are commissioned and paid for by sellers but are intended to be relied upon by purchasers as well.

    Most lenders will also accept a Home Report and will not insist on instructing a separate valuation. It is still open to you to instruct your own survey or other inspections, and your solicitor can advise further on this.

    If the survey and valuation in the Home Report are more than three months old, then it will be considered out of date and any offer you make should be subject to a “refresh,” which in most circumstances will be paid for by the seller.

    Home Reports do provide some very useful information upfront and you should always review the Home Report of any property that may be of interest, regardless of whether you decide to have your own survey carried out.

    It may well contain information that puts you off a property before you waste any time on it. Most properties are advertised with an electronic link to the Home Report and so they are easy to download and read, even before a viewing.

• What is LBTT?

  • Land and Buildings Transaction Tax is the Scottish version of stamp duty and is payable to Revenue Scotland when you buy a property. It applies if the price is over £145,000, or £175,000 if you are a first time buyer buying your first main home.

    Rates and band can be found here

    There is also another property tax which is called the Additional Dwelling Supplement which may apply when you purchase a second home.

    The rules around ADS are complex and you should obtain advice early on. Your solicitor will ask detailed questions about your circumstances to work out if you will be liable.

    There may be circumstances where it will apply even where you don’t already own a property, for example, where your spouse, civil partner or partner already owns any property. ADS applies at 6% and so it can be a very unwelcome additional outlay.

• What other legal costs are there?

  • There is the fee for the legal work itself. You may wish to shop around for estimates but be wary of accepting the cheapest quote you receive. This may reflect the level of service you receive. Remember this may be one of the biggest purchases you make.

    You should make sure that you are comfortable with the level of service being offered and what the fee covers. Other than LBTT the other main outlays are the dues payable to the Land Register for registering the title deeds.  These dues are set by the Registers of Scotland and vary depending on the price paid.

• How will I know what to offer for a property?

  • Your solicitor can offer guidance on this. They should have a good working knowledge of the market and be able to guide you on what you may have to pay for a particular property.

• What else does an offer cover?

  • Most solicitors in Scotland use a form of offer which refers to a set of standard conditions. These cover a whole range of matters from dealing with fittings and fixtures to more technical matters such as searches and title deeds.

    The main points you need to worry about are price, the date of entry you would like, what further surveys or inspections you would like, and what if any extras are to be included.

• What does “date of entry” mean?

  • This is the date you pay the price and receive the keys. It’s also often referred to as the date of completion or settlement.

    There are no set rules as to how far ahead the date of entry has to be but 8 weeks from the date of offering is quite common, allowing plenty time for a mortgage application to be progressed and for your solicitor to deal with all the technical matters.

• When will the contract for the purchase be legally binding and what are missives?

  • The contract between you and the seller is made up of a series of formal letters (often called missives) including the offer submitted on your behalf.

    After submitting an offer, you should expect to receive verbal acceptance the same day or the following day, but this does not mean there is a binding contract.

    The seller’s solicitor will follow up with a written acceptance. As there are frequently a number of clauses that require negotiation, the acceptance may contain some qualifications and will commonly be referred to as a qualified acceptance. If these qualifications are acceptable to you then your solicitor will issue a formal letter confirming this and then the contract will be binding.

    Otherwise, negotiations will continue until all points are agreed in writing. Your solicitor will advise you throughout this process and will take specific instructions before issuing a formal letter on your behalf. It is, of course, important that the missives are not concluded until you have your mortgage offer, and know for certain that you will be able to pay the price on the agreed date of entry.

• Do I need to have my mortgage in place before the missives are concluded?

  • Yes, as otherwise there is a risk that you could incur a claim for damages if your mortgage is declined.

    You should arrange to submit your mortgage offer as soon as your offer is verbally accepted to keep any delay in concluding the missives to a minimum.

    Until the missives are concluded either party can walk away without incurring a penalty, and a seller may decide to re-market if a purchaser is taking too long with their mortgage.

• What if I need to sell before I can go ahead with a purchase?

  • Unless you have concluded missives for your sale then your offer will have to be conditional on a sale being achieved.

    This can put you at a disadvantage if bidding against other parties who don’t need to sell, but is quite common, particularly in places like Edinburgh where many sellers are reluctant to sell without having bought, as they fear not being able to find somewhere suitable within their timescales.

    If a conditional offer is accepted it is often on the basis that a sale is then achieved within an agreed timescale, and if a sale is not achieved within that time the seller will remarket.

• Will I need to pay a deposit?

  • Generally, no. Deposits are still uncommon in Scotland unless you are buying a new build property. In some situations, a deposit may be negotiated by a seller, for example, where the offer is subject to a sale the seller may want a deposit to be paid and to be non-refundable if you don’t sell within an agreed period. Even this is uncommon.

• What else does my solicitor do?

  • Your solicitor will examine the title deeds for the property. These can be quite complex. The solicitor will be checking that there are no problems with the title, for example, any problems with the legal description or any unusual title conditions.

    Your solicitor will provide you with a report on the title setting out the main terms and will tell you if there are any problems. If there are any serious problems, which the seller cannot resolve, then you may have to pull out, but this is very rare, and many problems can be resolved.

    Your solicitor will also check all searches are clear and will check all documentation is available for any recent structural alterations carried out. Your solicitor will also prepare the tax return required for the LBTT.

• What happens with my mortgage?

  • Once you have submitted your application, and it is approved, you will receive a mortgage offer and your solicitor will receive a set of instructions.

    Your solicitor will draw up the Standard Security (mortgage deed) for you to sign and will submit a formal request to your lender for the funds which will normally be drawn down the day before the date of entry.

    Your solicitor will provide you with a cash statement and ask you to send your funds at the same time, so that cleared funds are available to your solicitor on the date of entry.

• What about property insurance?

  • You will have to have buildings insurance in place from the date of entry.

• Do I need two solicitors if I am selling in England and buying in Scotland?

  • The law in England and Scotland is different and so you will need a solicitor qualified in English law for your sale and a Scottish qualified solicitor for your purchase.

    Cross border transactions can prove tricky and so it is best to speak to and engage solicitors at an early stage.

    In Scotland your solicitor will have to make any offer subject to exchange of contracts in your sale. The exchange process in England has historically taken longer than the Scottish equivalent of concluding missives and this could cause pressures with Scottish sellers reluctant to engage with buyers selling in England, particularly where they are at the early stages of a sale.

    The two systems are becoming more aligned in terms of timings and it is possible to make it work, but you need to be transparent with your seller in Scotland and agree a sensible time frame to allow you to exchange in England.

• Now that I own a property should I have a Will?

  • A property is likely to be one of the most valuable assets you own and, therefore, it is advisable to have a Will put in place so that in the event of your death the property passes to your chosen beneficiary. Please see our section on Wills for further information.