At the moment, a contract for the sale and purchase of residential property must be in writing. The process of creating that contract usually starts with the buyer’s lawyer sending the seller’s lawyer an offer to buy the house. The seller’s solicitor takes instructions from the seller and, if the offer is acceptable, issues an acceptance. In a straightforward world, when the seller accepts the offer, the contract is formed.
However, life is never as simple as that. The offer may have conditions that are not acceptable to the seller. When that happens, the seller’s solicitor will send the buyer’s solicitor a conditional or “qualified” acceptance. This means that whilst the seller finds many of the conditions in the offer acceptable some of them are not. When the buyer’s solicitor receives the qualified acceptance, it is discussed with the buyer. If the conditions contained in the qualified acceptance are acceptable, a final acceptance is sent to the seller’s solicitor. If not, a further qualified acceptance is sent – this time by the buyer’s solicitor to the seller’s solicitor. This process of issuing qualified acceptances can continue for some time until, eventually, a final acceptance is sent.
The letters that make up these exchanges are called missives.
Once the final acceptance from one party to the other, the contract is complete. At this point, lawyers call this stage conclusion of missives. That means there is a binding contract between the seller to sell the house to the buyer and for the buyer to buy the house from the seller.
One important point to note is that the solicitors for each of the parties sign the offer and acceptances on behalf of their respective clients.
There have been great strides in recent years in Scotland with the development of Scottish Standard Clauses. Now in their fifth edition, the Scottish Standard Clauses are designed to have all the conditions a buyer and seller need to reach a quick agreement to sell and buy. A client guide to the Scottish Standard Clauses can be found here.
Whilst these clauses are recommended clauses, there is nothing stopping either party from inserting additional clauses to meet their needs.
There is a binding contract when missives are concluded. However, whilst the contract to buy and sell the house is in place, because the missives contain conditions, all the conditions need to be met for the sale and purchase to reach a satisfactory completion. That is when the buyer pays the price and the seller hands over the keys.
Unfortunately, life is not always straight forward and even though missives may be concluded, they may contain suspensive conditions that allow the seller or buyer to walk away from the contract.
Suspensive conditions are conditions that need to be satisfied before the contract can be implemented or completed. An example of this is where the offer contains a condition that the purchase is subject to the buyer obtaining a satisfactory mortgage. This condition is totally out with the control of the seller. That means if the buyer does not obtain a satisfactory mortgage, the buyer can withdraw from the purchase without penalty. From a seller’s perspective, the seller may accept an offer on the condition that the sale is subject to the seller buying a suitable alternative property.
Our article “Missives concluded – does that mean I’ve sold my house?” deals with the question of suspensive conditions in greater detail.
Our residential property lawyers in North Berwick and Dunbar, East Lothian can answer all your questions about buying or selling a house. If you are thinking about buying or selling and are looking for clear, no-nonsense advice, please contact us online or telephone one of our offices: North Berwick 01620 892138 or Dunbar 01368 862746.