“When do I sign my missives”?
It is probably the question that conveyancers hear most of often. The short answer is – you don’t! Most people are surprised hear this, so the reason for this blog is to try and clear up some common misconceptions about missives and the process.
It probably helps to first explain just what “the Missives” are. In Scotland, the contract for your sale and purchase is usually made up of a series of formal letters between the parties’ solicitors. The first letter, is the offer letter which is usually sent by a purchaser’s solicitor. The offer sets out all of the terms and conditions of the transaction. The next letter, is the formal acceptance from the seller’s solicitor. This acceptance will often make some changes to the terms set out in the offer. The two solicitors will then negotiate the contract by going back and forth with these formal letters making changes to the terms until they reach a point where both sides are happy with the terms. This is the point that missives are “concluded” and the contract is binding on both parties. These letters are collectively known as ‘the missives’ and all of them together form the contract
“How long does it take to conclude missives”?
How long is a piece of string? Unfortunately, there is not generally a set timescale for conclusion of missives and it is not always easy to predict how long it will take to do so. As mentioned above, both parties need to be in agreement on the terms of the contract before missives can be concluded. This means that if there are any issues which still need to be negotiated or addressed by either party, then conclusion of missives may be delayed whilst the issue is resolved.
The most common cause for a delay to conclusion of missives relate to the buyer’s funding. If a buyer is reliant on a mortgage, or funds coming from the sale of their own property, then they will not wish to be in a binding contract until they have a mortgage offer in place, or have sold their own property.
In some cases, the missives may be conditional on things like mortgage funding or the buyer selling their own property – however most buyers and sellers prefer to have a contract which is not conditional. This may mean that it takes a little longer to achieve concluded missives, but it gives all parties the comfort of knowing that when the contract is binding, there is much less likelihood of the other party withdrawing because of one of these “conditional” aspects.
Enforcing or withdrawing from missives
By far the most common question raised in relation to this is: what will happen if I choose not to buy or sell?
As mentioned above, the point where missives are concluded is the point where the contract is binding. This means that neither party can be held to any obligations in terms of the contract/missives until missives are concluded.
This means that if you choose to withdraw from the transaction before missives are concluded, then the other party will usually have little recourse. As the contract is not yet binding, they usually will not be able to force you to proceed with the transaction, nor will they usually be able to seek any penalties or similar from you.
If you choose to withdraw from a transaction after conclusion of missives, the position is quite different. As the contract is now binding, if either party chooses not to proceed or to withdraw, then they will likely be in breach of their obligations in terms of the contract and as such, may be liable to the other party for costs or other remedies. Your conveyancer should be able to guide you as to what your rights and obligations are in this situation.
You should always remain aware that there may be other costs involved if you do not proceed with a sale or a purchase even in cases where missives have not yet concluded. You may not be liable to the other party for any costs, but you may be liable for costs such as Estate Agency costs, legal fees for work done to date, or any outlays incurred on your behalf. You should always query this if you intend to withdraw from transaction.
Hopefully this blog has helped shed some light on some of the most commonly asked questions regarding missives, however if you have any other questions, please get in touch with our Residential Conveyancing team who will be more than happy to give you some guidance (working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland).
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