Legal terms explained
Buying and selling a property is likely to be one of the most significant financial undertakings that you will ever be involved in. Depending on the progress of the transaction it can be a stressful and worrying time. Our aim is to guide you smoothly through the process keeping any anxiety to a minimum, and to be on hand to answer any questions you may have.
Listed below is an explanation of terms used in the buying and selling process. You may find this helpful to understand the various steps involved.
The asking price for a property states a figure in pounds, preceded by one of the following:
This indicates that the seller wants to achieve a price in excess of the figure specified. An offers over asking price will often be followed by a closing date.
This indicates a greater level of flexibility in the seller’s expectation than a fixed price. If there is a lot of interest from buyers the seller may look to achieve more than the figure specified, however, if there is little interest the seller may be willing to accept an offer of less than the figure specified.
This indicates that the seller would accept the amount specified. Often, the first offer of the fixed price will be accepted. However, this is dependent on other factors such as the proposed date of entry and the offeror’s ability to conclude missives swiftly.
This is a loan obtained from a bank in order to fund the purchase of a "new" property before payment has been received for the "old" property. Closed bridging is where there is already a binding contract for the sale of the "old" property, whereas open bridging is where the "old" property has yet to be sold. Open bridging is not commonly available because of the risk that the bank will not be able to recover the money lent.
In the event that a property has more than one potential purchaser who has noted interest and is therefore likely to make an offer, a closing date may well be set by the selling agent. This generally only applies to properties priced at offers over or offers in the region of / offers around. All offers for the property must be submitted by a specific time on the closing date after which the seller is able to choose the offer that he or she prefers. An offering party is usually not given a later opportunity to amend his/her offer and should therefore bid the maximum that he/she is willing to pay for the property. The seller is not, however, obliged to accept any of the offers submitted.
Conveyancing is the legal process of transferring ownership of a property from one person to another and also dealing with the legal paperwork of any mortgage connected with the transaction.
This is the day on which the sale of a property is completed. The seller receives the money and the buyer gets the keys and takes ownership of the property.
In more expensive properties it is not unusual for a deposit to be payable as an indication of the purchaser’s good faith. This this would normally constitute 5-10% of the price, payable within 14 days from the conclusion of missives. This may or may not be refundable in the event of the purchase not proceeding and should be discussed with your solicitor at the time.
As part of the conveyancing process, the disposition is the legal document that is signed by the seller and details the transfer of ownership of the property from one person to another.
Factors are companies that organise the repair and maintenance of blocks of flats or developments of properties with common areas on behalf of all the owners. They may also arrange common buildings insurance policies, gardening of mutual grounds, cleaning of common areas etc. The factors or factoring companies will charge each of the owners for their share of the common or factoring charges often on a 6 monthly basis.
This is the first of the contractual documents that will form the missives. It is submitted to the selling agent by the solicitor who acts on behalf of the purchaser. The offer is signed by the solicitor but it is potentially legally binding on the purchaser. The offer will detail the price offered and the proposed date of entry. Should the formal offer be acceptable to the seller, his/her solicitor will respond with a formal written acceptance. In certain circumstances this can bind the two parties to the contract, but is more often a qualified acceptance being the next step in the process of "concluding the bargain".
It is important to know the difference between the above terms. The land and building, and anything that is permanently affixed, is known as heritable. Moveable items include furniture and freestanding appliances. If you need a tool to remove the item it is generally considered heritable. The distinction between heritable and moveable items may become important in relation to Stamp Duty Land Tax which is only due on the heritable element of the transaction.
Introduced in December 2008, this is a mandatory report which must be produced by the seller when marketing a residential property (other than a new property), and is made available to any interested parties. For more information see our Home Reports Explained page.
This is a copy of the official Title Sheet in the Land Register of Scotland. It is evidence of ownership of the property. The Land Certificate contains a plan, a verbal description of the property, the name of the owner and details of any securities and burdens that affect the property.
LTV is a percentage ratio of the amount of a mortgage against the value of the property. A £400,000 mortgage for a property valued at £500,000 will therefore be 80% loan to value.
Properties that are of particular historical or architectural interest may be “listed”, and require Listed Building Consent before any alterations can be carried out to them. Applications for Listed Building Consent will be considered by the local authority planning department, and in some cases Historic Scotland will be consulted on whether or not to grant consent.
The missives are the written contract between the purchaser and the seller (including the offer, normally a qualified acceptance and any subsequent formal letters including the letter concluding the bargain which are exchanged between the respective solicitors). The point at which the parties reach an agreement resulting in a binding contract is called the "conclusion of missives".
We are required by law to comply with these rules in order to protect the UK financial system in general, and our business in particular. The regulations require us to obtain proof of identity and of address for every new or potential client. This must be in the form of a current passport or driving licence and a utilities bill (other than a mobile phone bill), bank statement or council tax bill which is no more than 3 months old.
In general use this means a loan used to fund the purchase of a residential property. However, it is worth being aware that this is an English law term. A mortgage in Scotland is legally called a standard security as the loan is "secured" over the property itself.
This describes the situation when the amount due to a mortgage lender is more than the current market value of the property that is subject to the mortgage. This can arise if there has been a fall in house prices since the property was purchased.
This is a verbal indication made by a potential purchaser’s solicitor to a seller’s agent that the potential purchaser is interested in a property. Noting interest will normally be carried out through the parties’ solicitors. It does not, however, guarantee that the seller will give the potential purchaser the opportunity to make an offer for the property, neither does it oblige the potential purchaser to make an offer.
Planning consent may be required if proposed alterations to a property involve a change of permitted use or if significant works are to be carried out or have been carried out without consent. If the property is in a Conservation Area or is listed, planning consent may be required for more minor works. The local council planning department will advise on the need for consent and consider any application for consent.
Qualified acceptance describes the means by which a seller, through his or her solicitor, formally accepts a formal offer, if it is to be subject to certain conditions.
This is usually the same as the date of entry, however if the date that the transaction actually settles is changed, the settlement date is the date that the money/keys actually changed hands.
A qualified lawyer who will represent your interests and carry out the legal work required for your purchase or sale. A solicitor will act only with your instructions and will correspond with you directly. Solicitors are regulated by the Law Society of Scotland.
This is the tax payable to HM Revenue & Customs when you purchase a property if the price is over £125,000.
This is the written statement that will be sent/emailed to you at the end of a transaction. It will detail the financial record of funds handled by us on your behalf, including any mortgage funds, fees, outlays, Stamp Duty Land Tax and other costs.
If a Home Report or survey discloses a structural issue with a property, whether now or in the past, the surveyor is likely to ask to see a structural engineer's report. This will be in order to ascertain whether the issue requires any remedial work now or whether it is an historic issue that has been addressed in the past. If remedial work is required now the surveyor will require it to be completed before being able to recommend the property as suitable security for a mortgage.
A valuation and report on the condition of a property, carried out by a member of the Royal Institution of Chartered Surveyors. Lenders will only accept survey valuations carried out by Chartered Surveyors included on their panel of approved surveyors.
Terms of business will be sent to you by the solicitor acting on your behalf, detailing who will carry out the work, what it will involve and how much it should cost.
These are the legal documents that record ownership of a property and any rights or conditions attached to that ownership. The title deeds will also describe exactly what the property comprises. If the title to a property is a registered title, the title deeds may only comprise a Land Certificate.
When a seller's solicitor has verbally accepted a formal offer on behalf of the seller, but missives have not yet been concluded, the term "under offer" is used.
A property bought with vacant possession means that it will not have any tenants at the time of transfer. Understandably, this is the norm for residential properties, although some properties will be sold with sitting tenants for investment purposes.