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Missives concluded – does that mean I’ve sold my house?

Written by: Kirsty Wilson
06 July 2022

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When you sell your house in Scotland, one of the key moments is when Missives are concluded. Missives is a technical term lawyers use to create the contract between a seller and a buyer. These are created through an exchange of letters – usually an offer by the buyer followed by an acceptance from the seller – usually qualified – and followed by an acceptance from the buyer. This exchange of letters can go on for some time until both parties are in agreement about the terms and conditions of the contract of sale and purchase. At that point, we say that missives are concluded, and this means a binding contract is in place between the seller and the buyer.

But does that mean you’ve sold your house?

The answer to that question is a resounding “yes”! However, there may well be conditions in the missives that allow the buyer to withdraw without penalty. These are known as “suspensive conditions” which afford the buyer an opportunity to walk away from the deal.

For example, the missives might be conditional on the purchaser selling their own house. Another example is where the contract is conditional on the buyer obtaining satisfactory mortgage finance. In the first example, should the buyer fail to sell their own house or, in the second example, should the buyer fail to secure a satisfactory mortgage, they can withdraw from the contact without penalty.

An example of where the missives are conditional on the seller doing something might be the need to produce certificates in respect of alterations carried out to the property. If the seller does not provide such certificates, the buyer will be able to withdraw from the purchase without penalty.

Should you accept suspensive conditions?

If you are a seller and there are multiple offers for your property, your solicitor will advise you of your options. Clearly, an offer that contains no suspensive conditions is likely to give a greater degree of certainty than an offer that has suspensive conditions, even although the price might be a bit less.

In a seller’s market, such as we have at present, sellers tend to be able to pick and choose which is the “best” offer for them. That offer us usually the one that gives them the most certainty and which can lead to concluded missives without them having suspensive conditions.

However, there may be occasions where all the offers you receive contain suspensive conditions of some description. Whilst your solicitor will try to negotiate these out, the options might well be to wait until the buyer is able to remove the suspensive conditions before concluding missives or conclude missives in the knowledge that they contain suspensive conditions.

We should point out that whilst we prefer concluding missives where there are no suspensive conditions, this is not always possible. It is also fair to say that most sales succeed even where the missives contain suspensive conditions.

We advise clients about missives every single day and have a wide range of experience allowing us to provide expert advice. If you are selling or buying property and need advice on which conditions should be included in the missives, please contact us.

Written by:

Kirsty Wilson

Associate
Kirsty is a solicitor of ten years post qualified experience and works predominantly in our conveyancing team in the North Berwick office.  Kirsty also deals with court work, assisting with actions in the Property Chamber of the First-tier Tribunal.   Kirsty graduated from the University of Aberdeen in 2008 and completed her traineeship in a rural firm before qualifying as a solicitor in 2010.  Over the years Kirsty has gained a variety of experience in working in property, private client and court work both in smaller high street firms and larger city firms. Outside of work Kirsty enjoys water sports, particularly windsurfing in the East Lothian area and sailing dinghies at East Lothian Yacht Club.

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