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When speaking to friends and family in England or Wales the one thing they all say about the conveyancing system in Scotland is:- “Once you submit an Offer in Scotland you are contractually bound”. Well, okay maybe they don’t use the phrase “contractually bound”…but you know what I mean. The same is true of friends and family in Scotland who believe that conveyancing in England is effectively a wild free for all where gazumping goes on all of the time (gazumping is when a seller accepts a higher offer on their property despite having agreed on another offer). It is funny how an idea or suggestion can snowball…the reality is sadly much less exciting. As with most things in life, these concerns have built up over time probably due to one or two exceptional stories being published in the media.
Differences between the two systems
Yes, in Scotland, technically if you instruct your solicitor to submit an Offer with no suspensive conditions (i.e you do not require a mortgage and are not dependent upon a related sale, etc) it could be accepted immediately by the Sellers solicitor and at that point, a binding contract would be in place. However, I have only seen this happen once to a former colleague of mine so it is not prevalent. Obviously, that is not to say that you can just submit Offers with reckless abandon, you should always seek legal advice first.
Likewise, throughout all of my years working in England, I cannot recall a single time when gazumping took place. I think it went out in the ’80s along with red braces and a mobile phone the size of a brick (apparently, these items are now “retro”).
Another difference when buying in Scotland was perhaps borne out of a determination to eliminate any potential gazumping situations. In Scotland, once you have instructed a Solicitor to submit an Offer on your behalf you are not permitted to return to view the property until missives have been concluded except in certain circumstances (access for surveyors, specialist reports, etc).
In England, access is permitted as many times as the Sellers are willing to accept you coming into their house throughout the process. This can be helpful because it provides the Purchaser with the opportunity to reassure the Sellers that they are still proceeding with the purchase as there is often a significant delay in England between the Offer being made and the Exchange of Contracts.
Leading on from this, it might be useful to explain a few phrases or legal jargon which you may come across when moving between England and Scotland:-
- Exchange of Contracts:- This is the term used in England to describe the point at which you would be contractually bound to purchase/sell… see you knew I would manage to bring this phrase back around eventually.
- Conclusion of Missives: The point in Scotland at which you would be contractually bound to purchase/sell.
- Completion Date: This is the term used in England for the day you collect the keys, walk in to your new property and pop the champagne, sparking water or fizzy drink, depending on your preference.
Settlement Date or Date of Entry: This is the equivalent in Scotland of the Completion date in England.
If you are thinking of buying or selling a property within Scotland, please contact a member of the Blackadders Residential Conveyancing Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
James Martin, Senior Solicitor
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