Scottish Standard Clauses... a significant innovation

Scottish solicitor at Hastings Legal, Duns and member of our Property and Land Law Reform Law Sub-Committee looks at the significance of Scottish Standard Clauses in the context of our 70 year history.

Historically, the missives process for residential property transactions in Scotland was a snappy affair, overwhelmingly focused on the basic transfer of title between buyer and seller. In years gone by, it was commonplace for an offer to fit onto one sheet of A4, followed by a de plano acceptance.

That was until the proliferation of third party interests entered the scene, with the arrival of extraneous factors such as property enquiry certificates, NHBC guarantees, architect’s certificates, building warrants and planning permission. At around the same time, many firms were developing their own bank of style qualified acceptances to counter everyone else’s individualised style offers. What was deemed necessary to go ‘into the contract’ was growing arms and legs.

The legal landscape was drastically shifting for conveyancing practitioners at a rapid pace: so how did the Law Society respond to this challenge?

A working party was set up in an attempt to create a set of standard clauses for the profession as a whole, essentially to keep this contractual expansion at bay. Soon thereafter, in April 1992, a Deed of Declaration - with a style offer and standard clauses - was released into the wild.

These standard documents were developed and refined over several years, with localised modifications across the country resulting in the formation of several regional standard clauses, followed by the first edition of the Edinburgh Standard Clauses in 2005, the first edition of the Combined Standard Clauses in 2009, and most significantly the first edition of the Scottish Standard Clauses (‘the Standard Clauses’) covering the whole country in December 2014. Since then, we have also had the second and third editions of the Standard Clauses, issued in March 2016 and October 2018 respectively. Crucially, with the refinement of the Standard Clauses came a general adoption by the profession.

The introduction and development of the Standard Clauses has undoubtedly brought a semblance of conformity to the missives process for both residential conveyancers and their clients.  When buying or selling residential property, clients expect straightforward information that they can easily access and understand, and which is communicated to them without delay. This is where the Standard Clauses demonstrate their worth, as they aim to ‘flush out’ any potential issues at the beginning of a transaction, whilst at the same time provide a reasonably level playing field for both sellers and purchasers.

Hence, the Standard Clauses are a prime example of an innovation that the Law Society has initiated, and then nurtured for over a quarter of a century, to improve how the Scottish legal profession operates.

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