It is common with residential property transactions for Missives to be in an unconcluded state until shortly before or even at the date of entry. While solicitors require to have regard to the interests of their clients and to take their clients' instructions, they must have regard to the principles of good professional conduct and may not accept an improper instruction. They should not knowingly mislead professional colleagues and must act with fellow solicitors in a spirit of trust and co-operation (rule B1.14 (Standards of Conduct)).
In residential property transactions, solicitors acting on behalf of both purchasers and sellers have a professional duty to conclude Missives without undue delay. Clients should be advised of this duty and of the consequences.
Acting for a purchaser
Where a solicitor for a purchaser is instructed to submit an offer but to delay concluding a bargain until some matter outwith the selling agent's control has been resolved — eg the purchaser's own house has not been sold, a survey or specialist's report is required or funding arrangements are to be confirmed — these circumstances should be disclosed to the selling solicitor.
If the purchaser instructs their solicitor not to disclose such matters to the selling solicitor, the purchaser's solicitor should remind the purchaser of their professional duties not to delay in the conclusion of missives and advise the purchaser that if they insist upon non-disclosure then the solicitor will require to withdraw from acting. This warning can be given orally or in writing but in either event should be clearly noted on the solicitor's file.
If, upon being warned that the solicitor will require to withdraw if non-disclosure is the purchaser’s final instruction, the purchaser then provides an instruction to disclose the reason for the delay the solicitor need not withdraw from acting.
Subject to client instructions, it is expected that in the interests of transparency full circumstances are disclosed and it would therefore be prudent for such suspensive matters to be included in the offer.
Acting for a seller
Where a selling client instructs a solicitor to delay concluding a bargain having given an indication that an offer is to be accepted, the reason for that delay should be disclosed to the purchaser's solicitor. If the seller instructs the solicitor not to disclose the reason or does not give a reason for such an instruction, the solicitor should advise that they cannot accept this instruction.
In such circumstances the solicitor should advise the seller that they will require to withdraw unless the seller consents to disclosure of the reason(s) for the delay. This warning can be given orally or in writing, but in either event should be clearly noted on the solicitor’s file.
If, upon being warned that the solicitor will require to withdraw if non-disclosure is the seller’s final instruction, the seller then provides an instruction to disclose the reason(s) for the delay the solicitor need not withdraw from acting.
If the seller does not allow the solicitor to disclose the reason(s) for the delay then the solicitor should withdraw from acting.
Acting for either purchaser or seller
If a solicitor, whether acting for purchaser or seller, requires to withdraw from acting in terms of this guidance, the confidentiality of the client should not be breached without the client's authority, but when intimating withdrawal that should be done by stating that it is in terms of this guidance.
This guidance should not be read as requiring a solicitor to withdraw from acting solely on the basis that their client does not conclude an early bargain. It is accepted that a client is entitled to delay the conclusion of missives while outstanding matters are attended to. However if there is a delay the reason for that delay should be disclosed to the solicitor on the other side as soon as reasonably practicable.
Last reviewed: 16 March 2022