Solicitors can ease the strain and help to avoid the pitfalls of the complete house-buying process, from noting interest in a property to concluding the deal. Their local knowledge can also be useful in helping you find a property.
As well as the step-by-step video and guide below, you can check out our handy glossary of property terms.
Finding a property and noting interest
There are many ways to find a property: from the internet, newspapers, solicitors/estate agents and property centres to browsing the streets for ‘For Sale’ signs. Your solicitor can also help by providing general information on current property available in the area and can use local knowledge to assist in finding a property to suit you.
Once you have found a property you like, ask your solicitor to note your interest with the selling agents (selling agents are usually estate agents or solicitors). A note of interest does not oblige you to buy, it simply indicates that you are interested in the property and wish to be kept informed of developments, such as when an offer must be made. Equally, however it does not restrict the seller who remains free to sell the property as he or she sees fit.
Information about the property (home reports)
Sellers must provide a home report for buyers. These include a single survey (which gives the condition and value of the property), an energy report (which contains a house's energy efficiency rating and carbon dioxide emissions) and a property questionnaire (which includes general information such as a property's council tax band, factoring arrangements, the existence of any local authority notices and information about alterations that have been made).
Home Reports contain a lot of detail so if you are unsure, you should discuss the contents with your solicitor.
Arranging a survey
A surveyor instructed by the seller will provide the survey contained in the home report pack. In many cases this will be sufficient for an interested party to submit an offer. However the potential buyer may have to commission another survey at the request of a mortgage provider or if the original survey was carried out some time ago. Your solicitor can provide further details and advice.
This can be a simple mortgage valuation report, a more detailed survey report or a lengthy building survey (although these are rare). Your solicitor will advise you on the best type of report for the property you have chosen. He or she can also instruct a surveyor on your behalf if you wish. In recent years most offers have been made subject to survey and it is expected that this will remain common practice even when a Home Report is available.
Arranging the loan
Once you have an idea of the price range of properties that you are interested in, you will have to arrange your loan. Even before you begin a detailed search for a property, it is recommended that you talk with your mortgage lender and agree how much you can borrow. Some solicitors are also mortgage brokers and can assist in arranging a mortgage.
Making an offer
Once you have found a property that you are interested in, your solicitor will give you advice about how much you might need to offer. If there are other people interested in the property, the sellers may set a closing date when all the interested parties must submit their best offers (usually offers over the asking price). If you are the only person interested in purchasing the property, or if the property is advertised for sale at a fixed price, it may be possible to put in an offer right away. Ask your solicitor for advice on how to proceed.
The next step is to instruct your solicitor to prepare a formal offer, who signs it on your behalf and submit it to the selling agents. When making an offer, ensure this is done via your solicitor to ensure this reflects your best interests. Proceeding without the expert assistance of a solicitor could lead to you being legally bound to buy something at the wrong price or without the necessary protections.
Having the offer accepted
Usually the highest offer is accepted although occasionally the seller accepts an offer on the basis of some other factor such as an earlier or more convenient date of entry. Sometimes no offers are accepted. Normally, however, a few hours after the closing date you would expect to hear whether your offer is to be accepted or not. If accepted verbally, this will be followed by a written acceptance (called a qualified acceptance) from the seller’s solicitor. The written acceptance may contain a number of points about the property.
At this stage your solicitor will discuss with you in depth the written acceptance. Having discussed all the details of the written acceptance with your solicitor, you can now tell your solicitor to get back to the solicitors for the sellers with a formal response. The seller’s solicitors in turn will speak to their client, before sending their own formal reply. This process will continue until there are no outstanding points.
Agreeing the contract (missives)
Further negotiations are likely after an offer has been accepted, for instance, the date of entry, details of additional items included in the sale and issues such as permits for alterations.
Once all points have been agreed in writing, a binding contract will have been formed. This contract is often referred to as concluded missives. It is important to note that, although you will not have been asked to sign anything at this stage, you will still be bound by the terms of the contract. Neither party can pull out of this contract without penalty. Your solicitor will explain to you the penalties that will occur if you fail to pay the price on time without the consent of the seller.
Checking the documents of ownership
Your solicitor will check the documents of ownership (title deeds) and report to you on the description of the property, any rights relating to it and any conditions that will have to be observed by any owner. These conditions are known as title burdens and could include:
- parking restrictions
- restrictions on use
- rules about where rubbish and bins are to be put
- a ban on putting up an aerial or satellite dish
- a ban on any alterations and new buildings
- restrictions on the height of walls, fences and hedges
- rules about upkeep of private roads, pavements and parking areas
- obligations to pay insurance
- obligations to pay common repair costs
- an obligation to pay a management fee for repairs and maintenance
- a right for your neighbour to enter your garden to carry out repairs to their house and vice versa
These are all typical (but not universal) conditions in housing title deeds. You should see your solicitor if you have any issues with the title deeds.
Preparing the transfer documents
A deed, called a disposition, is required to transfer the title of the property into your name. This is prepared by your solicitor, checked by the seller’s solicitors and signed by the seller.
If you have a loan arranged, you will sign a mortgage document (standard security) which gives your mortgage provider certain rights over the property. These include, in the worst case scenario, a right to take possession of the property and sell it. Your solicitor will advise you about the implications of the mortgage agreement.
Transferring the funds
As well as the purchase price, there are other costs involved in buying a property that you must consider, such as and Buildings Transaction Tax (LBTT) (a tax payable to Revenue Scotland). There is also a fee charged by the Registers of Scotland who are responsible for maintaining all the property records in Scotland and where your ownership of your new property is formally recorded.
Your solicitor will make sure that there is nothing to prevent the transaction proceeding and then make the arrangements so that all the funds are collected and paid accordingly.
Completing the purchase
The transaction is completed (settled) on the date of entry. The deeds are delivered to your solicitor, the price is paid to the seller’s solicitor and you get the keys to your new home. Your solicitor will then deal with the LBTT and registration requirements. Now that you own your new home, it is important to have the property and its contents insured. It is worth drawing up a will or revising your existing will – especially if you are buying the house with someone else. Your solicitor can help with both these matters.
Your solicitor will be able to give you advice about other important matters, such as insuring the property and its contents and drawing up a will, which is highly recommended. Also, he or she can provide you with a quotation for the cost of the house-buying process, including legal fees.
Most solicitors can handle the sale of a property from start to finish, including advice on advertising and the conveyancing. It is best to consult a solicitor even if you are selling a property yourself.
Sellers are required by law to provide a home report for buyers. These include a single survey, an energy report and a property questionnaire. Your solicitor can provide further details and advice.
Negotiating the sale
Your solicitor will negotiate the selling price and other matters - such as the date of entry - before negotiating and accepting any offer to purchase on your behalf. This exchange of letters signed by the solicitors is referred to as 'missives'. Once their terms are finally agreed, there is a concluded and binding contract.
Further checks have to be carried out by solicitors after an offer has been accepted, for instance, in relation to building work or repairs. Then new title deeds can be drawn up transferring ownership of the property. Your solicitor can take care of all this, while also collecting the money from the sale, arranging to discharge and repay your existing mortgage if you have one and, if necessary, arranging for the surplus to be put towards the purchase of your new home.
After the sale
Your solicitor will also be available for advice after the deal has been completed.
The introduction of home reports in 2008 marked a major change in how properties are bought and sold in Scotland. Buyers and sellers should be assured that the professionals involved, solicitors and surveyors alike, are regulated by their membership organisations - the Law Society of Scotland and the Royal Institution of Chartered Surveyors. This should reassure members of the public that they can access sound and impartial advice when buying or selling a property.
It might be that your purchase is a newly built house or flat on a new development by a housebuilder. Here, the price of the house or flat will likely be fixed, and no noting of interest or closing date procedure will be involved. Instead the housebuilder will send an offer in the form of a standard contract (called a builders’ missive) to your solicitor and expect you to sign up to this with no alteration of its terms. Your solicitor will explain these terms to you and seek to negotiate any necessary variations on your behalf.
Once terms have been agreed, the contract will then be finalised in the normal manner. The property will still need to be surveyed, and you will still need to arrange your loan, have the titles checked, have title to the property transferred to your name, complete the purchase, and insure the property in much the same way as described above.
However, there may be other important differences which you will need to consider: The new house or flat may not yet be built and so the date of entry may not be a specific date. If you are selling an existing property, you may have to buy your new property before you have sold your existing property, alternatively you may have to find temporary accommodation while your new property is being prepared. It is important to discuss with the builder the likely dates and consider what you will do if that date moves either forward or backward.
- Check carefully the plan you are shown at the time of reserving the property so that you are happy that this reflects what you are planning to buy.
- Housebuilders usually require payment of reservation fees and deposits as soon as missives are concluded. These usually require to be disclosed to the mortgage provider as part of the solicitor’s duties to the mortgage provider and in certain circumstances the value of these can affect how much you are able to borrow. Speak to your solicitor for detailed advice.
- They may offer special deals or packages, often with time limits and conditions attached.
- They may offer a variety of optional extras with the property. Consider carefully whether you wish to pay for these and communicate clearly with your solicitor about what you have ordered from the builder.
- Larger housebuilders offer ten year guarantees against major structural defects through the National House-Building Council (NHBC) or Zurich Insurance. You will be provided with information on these indemnities which you should read through carefully.
- Completion of construction can sometimes be delayed by factors outwith the builders’ control. In those scenarios, builders will not usually be liable for any costs incurred by you as a result of such delays so consider what you would do should there be a delay.
- Usually these matters will be discussed with you by the housebuilder’s sales staff at their show-home or sales office on site. Your solicitor can also help to guide you through the complexities of what is on offer.
You can, but we would not recommend that you do so. The property may be your most valuable asset and contracts for the sale and purchase of property can be complex. We strongly recommend adopting the services of a reputable property solicitor to check the validity of the title and ensure that you get what you pay for. Taking legal advice now may save money in the future.
If you are purchasing with the assistance of a lender, it is very unlikely that the lender will proceed unless you have a solicitor acting for you. Also, the solicitor for the other party may refuse to proceed with a non-solicitor and, if you are purchasing, you would require to register the title with Registers of Scotland without the assistance of a professional advisor.
The Law Society only regulates Scottish solicitors, many of whom also do estate agency or letting agency work. Estate agents and letting agents who are not solicitors may be regulated by another professional organisation but details vary and you would have to ask the particular firm.
Transferring funds and ensuring everything is in place for the sale and purchase does take some time. Some solicitors prefer to use cheques when settling a conveyancing transaction. When a buyer's solicitor sends the cheque on the day of settlement, it is usually held as 'undelivered' to ensure that all obligations in the contract are met before the buyer's money can be released. This is to protect the buyer. Once everything is in place, and the cheque is cashed, it will go through the normal clearing procedure, which takes three to five working days. If you have any concerns, speak to your solicitor.