Frequently Asked Questions

I'm selling my house, what do I need to do?

Before you start to choose a solicitor to market your home for sale, you need to make sure that you have organised a Home Report which is designed to make sure you've gathered all the information that a potential buyer will need. The Home Report is prepared by the seller at the seller’s cost.

Certain types of property, such as brand new housing that is sold 'off-plan', newly converted premises that have not previously been used for residential purposes and homes purchased under Right to Buy, are exempt (full details can be found on the Scottish Government website), but usually, even if you are selling your house privately without an estate agent or solicitor, you still need a Home Report.

How do I arrange a Home Report?

We can compile the Home Report as part of our service, selecting the surveyor from a list of preferred professionals known to us and trusted by us. You can instruct a chartered surveyor to produce it. Members of the Royal Institution of Chartered Surveyors (RICS) in Scotland should charge between £585 and £820 for a Home Report depending on the size of your home. The Home Report should not be older than 12 weeks old when you start marketing your property.

If my home report identifies problems should I get them fixed before I try to sell?

It's up to you. Find out how much the repairs would cost but bear in mind that all buyers who can afford your property and are interested who request a copy of the Home Report automatically get one. They will see those same issues and may use the conclusions of the report to negotiate a lower price. You need to weigh up the cost of the repairs against the price you are hoping to achieve for the property.

What’s the difference between a solicitor and an estate agent?

Solicitors are qualified to do the legal work actually transferring ownership of a property to the buyer – estate agents are not. A firm of solicitors with an estate agency department such as Shoosmiths can do all the legal and sales work necessary for completing a sale or purchase.

Is it better to use an estate agent or solicitor to sell?

There are a number of excellent estate agents operating in Scotland but on balance solicitors with good estate agency practices have two advantages over dedicated estate agencies:

  • Only solicitors can be members of the various Solicitors’ Property Centres around the country, which have proven to be very efficient and successful selling organisations.
  • Solicitors can do the legal work involved in transferring the property after sale, something estate agents cannot. This ‘single source solution’ with everything under one roof can make things much more convenient for clients when buying or selling.

What does the solicitor actually do?

A solicitor can help with arranging a mortgage, arranging a survey of the property and arranging insurance. Some people attempt to do the conveyancing themselves to save cost, but the main reason for using a solicitor is that buying or selling a house involves a lot of complex legal work before making a formal offer in writing to the seller’s solicitor. The seller does not have to accept any offer, even if the sale has gone to a ‘closing date’, but it is unusual for that to happen.

If your offer is unsuccessful you will still have to pay for any survey you may have instructed and there may be a charge for legal work carried out in relation to submitting the offer. If your offer is successful the acceptance will almost always be a ‘conditional acceptance’: for example it may accept the price offered but seek to adjust the ‘date of entry’ or exclude certain ‘moveable’ items (e.g. curtains or white goods) from the sale.

When is the best time of year to sell?

It is commonly held that Spring is the best time of year to put your property on the market, but property sells all year round in Scotland. January and February can be surprisingly busy months unless the weather is dreadful. There are probably only two times in the year which are quieter in terms of purchase enquiries - the middle of the school holidays in the Summer and the two or three weeks run up to Christmas.

Should I redecorate my house before selling?

Not necessarily. If the décor is in decent condition then there is no real need to spend money. It is true however, that houses presented to the market which are clean and tidy, and most importantly, uncluttered, do generally impress buyers more. Properties with décor that is too quirky or influenced too strongly by a unique individual taste may need to be ‘de-personalised’ so that prospective buyers see the potential of the property rather than being overwhelmed by the personality of the vendor.

Do I have to pay off my mortgage when I sell?

In almost every case you must pay off not only your main mortgage but also any other loans secured on your house. If you are moving to a new house some lenders may let you transfer the old loan to your new house but you will need to discuss with your lender and get advice from your financial advisor and solicitor in order to do so.

Can I sell my house if I am in mortgage arrears?

Generally the answer is yes - if you are using proceeds from the sale to clear the arrears – but it is essential that your lender knows what you are doing and agrees with it. Substantial or lengthy arrears may have been sent to the lender’s solicitors for repossession proceedings to be started. If that stage has been reached it may be impossible to sell. You should speak to your lender or get your own solicitor to liaise with them at the start to ensure agreement can be reached on any sale where there are mortgage arrears.

Which is better when selling: ‘fixed price’ or ‘offers over’?

There is no one answer to this and sellers should heed the advice of their solicitor and valuer. It depends on the area and market conditions. In some areas, reasonable properties may be advertised ‘offers over’ but do not achieve anything above the asking price. ‘Fixed price’ offers are more attractive to first time buyers for example, who can’t afford much over the asking price in any event. Equally however, it would be foolish to advertise a premium property in a premium area which might attract a great deal of interest on a ‘fixed price’ basis.

How long do sales take?

It is quite a long process from first deciding to sell to the date you get the money and hand over the keys – usually several months. Timescales can vary dramatically depending on location, property type and market conditions.

Some properties in very popular areas when the market is buoyant can sell in days. Other properties may take many months. There really is no way of accurately predicting sales times but all houses do sell, no matter what the time of year, state of the market or location.

Patience is a virtue when buying or selling your house. It is never wise to depend on things always going quickly but in order to achieve a sale within the least possible time it is essential to ensure that your selling agent is knowledgeable in the local market.

How is the system in Scotland different from England?

In Scotland ‘missives’ are usually concluded right at the start of the process, at which point there is a binding contract so that neither party can walk away from the deal. These ‘missives’ are not signed personally by seller and purchaser but by their respective solicitors. In practical terms, the missives and the conveyancing happen together, usually because of the length of time it takes to get a mortgage offer on the table.

In England, the system involves an ‘exchange of contracts’ between seller and purchaser – signed by each personally – which happens very shortly before completion when the seller moves out and the purchaser moves in. Up until that ‘exchange of contracts’ there is no binding deal and either party can walk away from the transaction.

In England, if the sellers get a better offer before exchange of contracts, irrespective of how far down the line things may be, they can accept it (the practice known as gazumping) and the prospective buyers must either match the increased offer or cut their losses and seek a new property.

Because of the differences in the two legal systems, ordinarily an English qualified solicitor would have to deal with your sale in England and, correspondingly, a different Scottish qualified solicitor would be needed to deal with things in Scotland.

Shoosmiths can offer a unique cross-border capability, meaning you do not have to use different solicitors for conveyancing if moving from England and Wales to Scotland (or vice versa) or purchasing/selling property in either jurisdiction.

I am buying a house: what should I do first?

Not many of us can afford to buy a property without getting a loan from a bank or building society. So the first thing is to get an agreement in principle from a lender as to how much you can borrow – so you know how much you can offer. Remember that there are various ‘hidden’ costs in the transaction that you will also need to cover including the Land and Building Transaction Tax (LBTT) which replaced Stamp Duty Land Tax (SDLT) as of April 2015, legal fees, removal costs and the cost of registering the purchaser’s ‘title’ to the property in the Land Register.

How do I find a property to buy?

Start looking through a solicitors’ property centre or you can of course go to an estate agent or look on the web which now has a number of websites covering property in Scotland. Once you’ve found a property, find a solicitor to represent you in the transaction.

Do I need to get a survey?

The seller is obliged to make a form of survey called a ‘Home Report’ available to purchasers. This is generally considered sufficient to proceed with the transaction. The Home Report is prepared by the seller at the seller’s cost but some lenders insist on more detailed information, in which case you will have to get you own independent survey done.

If that is the case, you should get your independent survey done before you make an offer. If the offer is accepted you will be legally bound to buy the property and you need to know if there are major problems with the property and whether your mortgage lender will be prepared to lend you enough money.

You can, if you wish, make an offer ‘subject to survey’. If the seller accepts your offer but your survey shows there are problems with the property, you can walk away from the transaction. Generally sellers don’t like ‘subject to survey’ offers, but in a buyer’s market they may agree to it.

How do I make an offer?

Properties are usually advertised as being either ‘offers over a certain sum’ or for a ‘fixed price’. Generally, with ‘offers over’ your solicitor will formally ‘note your interest’ with the seller’s solicitors so that you are told when the ‘closing date’ for offers will be. On that date you will have to decide how much to offer without knowing what anyone else may offer. The seller’s solicitor will then normally open all the offers at the same time and usually the highest offer wins.

A property with a ‘fixed price’ means it will be sold to the first person who puts in an offer which is accepted by the seller. In such a case it is ‘first come first served’. Apart from the price your offer will also specify the ‘date of entry’ i.e. the day on which you will get the keys and any ‘moveable’ items (such as curtains and white goods) which are to be included in the price. The offer will also usually include an extensive range of standard conditions as are required for the purchase of a property and any particular conditions that may apply to your transaction.

What does ‘noting interest’ mean?

When a property is advertised ‘offers over’ and a buyer is seriously interested, the buyer’s solicitor should ‘note interest’ with the selling agent. This can done by telephone fax or email and is simply an intimation to the selling agent that the buyer is considering offering.

When a selling agent has two or more ‘noted interests’ he should fix a ‘closing date’ which is a date and time by which offers to buy must be lodged with him. ‘Noting interest’ by a buyer’s solicitor carries considerably more weight and credibility than if made by the buyer personally. The selling agent will not treat an intimation of interest by the buyer directly as being sufficiently formal or serious.

What happens when the missives are concluded?

Once ‘missives are concluded’ your solicitor will get involved in ‘conveyancing’ which really means nothing more or less than the detailed work required to legally ‘convey’ or ‘transfer’ the property to the purchaser. In practice, missives and conveyancing happen simultaneously given the time it takes to get a mortgage offer confirmed and on the table. This work includes:

  • Checking the seller actually owns what they are selling.
  • Checking the plan of the property in the ‘title’ or ‘Land Certificate’ matches what the purchaser has offered for.
  • Checking that the right paperwork is there for any alterations that may have been made to the property.
  • Checking the ‘title conditions’ particularly as regards liabilities for repairs and maintenance of stairwells, roofs, boundary walls or fences.
  • Checking access rights and any restrictions as to use of the property (e.g. in relation to using the property for business purposes, keeping pets or parking).
  • Drawing up the ‘disposition’ or deed conveying the property to the purchaser.
  • Preparing the ‘standard security’ which gives the lender certain rights in relation to the property if the purchaser fails to comply with the loan agreement.
  • Preparing a Land and Building Transaction Tax return and arranging any payment due by the purchaser.