The Missives is the name we give to the Purchase Contract of which the Offer is just the first part.
The Offer is just the first step in the process
People often think that in Scotland once your offer is accepted there is a legally binding contract between you, the buyer, and the sellers. That is not the case; it is a little more complicated than that. More complicated, not because we as solicitors want things to be more complicated, but simply because nowadays everything tends to be more complicated. Although submitting a successful offer is an important step in buying your property, it is just the first step in a process that takes several weeks to complete and which is only completed once other steps have been completed, such as getting your mortgage. So, what are the Missives and what part do they play in the process of buying your property?
What are the Missives?
The Missives in Scotland, as mentioned above, is the name traditionally given for the Purchase Contract. Unlike some other legal systems, it is not a single contract signed by you, the buyer, and the seller. Instead it is a series of Contract letters exchanged between us as your solicitors and the sellers’ solicitors which propose and amend the contract conditions. Only once all the conditions are acceptable to you and the sellers will the contract be finally accepted by either us or the sellers’ solicitors issuing the final acceptance or concluding letter and only at that time will there be a legally binding contract for your purchase of the property.
What role do the Missives play in the process of buying your property?
The Missives are an integral and essential part of the process and rightly so considering it is the contract being entered into between you and the sellers detailing the conditions on which you and the sell agree to the purchase and sale and they cover a wide variety of topics relating to the property, the sellers’ title to the property and your respective rights and obligations in relation to the sale and purchase.
How long does it take to complete the purchase once the Offer has been verbally accepted?
The usual period of time is 8 weeks to complete the purchase and most purchases and sales complete on a Friday.
Who signs the Missives?
Again, this can be confusing for buyers. Although in other systems the buyer and seller do sign the contract themselves, in Scotland, it is the solicitors, as agents for the buyer and seller, who sign the various contract letters which together form the Missives.
How long does it take to agree the Missives?
Although the Law Society of Scotland still requires solicitors to conclude Missives as quickly as possible, in practice, and for very good reasons in most cases, the process of agreeing and concluding the Missives (ie the point where there is a legally binding contract between buyer and seller) takes a number of weeks to complete and quite often are only concluded shortly before you are actually due to complete the purchase of your property.
What are the reasons for it taking time to agree and conclude?
The most likely things that will hold up the conclusion of the Missives are the following: The time it takes for the mortgage offer to be issued We always recommend buyers to contact their lender or mortgage adviser as quickly as possible once their offer on a property has been verbally accepted. This is because the actual process of applying for a mortgage and the lender processing that application can take several weeks. Also, in a number of cases, there is something incorrect in the first mortgage offer, usually the stated purchase price, which means the lender has to make that correction and issue a fresh mortgage offer. Also, we have a number of obligations to the lender which sometimes means that we have to write to the lender to report on certain matters before we can go ahead and ask for the loan funds. A good example of this is Gifted Deposits. The seller delays until they have a concluded contract and mortgage for the next home Another reason for delays is that the sellers are looking to buy the next new home and so will not want to commit to the sale until they too have a legally binding contract for the purchase of their new home (and also that their mortgage offer is issued). Problems with the title or missing consent documents for alterations We always prefer to make sure the title is okay and if there have been alterations made to the property that we have seen all the consent documents. Why? Simply that it is easier and makes more sense to deal with these matters whilst neither the buyer nor the seller are bound into a contract so that if for any reason the title or missing consent documents which cannot be resolved easily or without delaying the Date of Entry either side is able to pull out of the deal without any consequences.
You will not be allowed to view the property again until the Missives are concluded
It is a standard practice in Scotland that buyers are not permitted to see round the property again until the Missives are concluded and then only really for the purposes of measuring or getting tradesmen out to give quotes for work. Again, delays in concluding the Missives will cause some buyers frustration for this reason. Perhaps because you need to order furniture. In those circumstances, and particularly where the sellers are responsible for the delay, it might be possible to get the sellers to agree to allow access.
Delays do cause stress
Everyone in the profession/ industry appreciates that delays in getting the Missives concluded causes stress to the seller and the buyer but often, as is perhaps apparent from the above list of likely causes of delay, it is not because solicitors have made the system complicated for its own sake but simply because there are so many elements involved in buying and selling properties that have to all come together or be resolved in order for the system to work and for you to complete the purchase of your new home. Whilst we can say that almost all purchases do complete on the day they are planned to complete (what we refer to as the Date of Entry or Completion Date), there are occasions when completion has to be delayed and, perhaps more often there are cases when although it is likely everything will come together in time to complete on the intended date, the Missives will not be concluded until very shortly before that day.
The Offer to Purchase
Just to explain the Offer will contain the following information and terms:
- It will contain your details as the buyer or purchaser
- It will refer to the address of the property you wish to buy
- It will state the price you wish to offer for the property
- It may specify the Date of Entry – the date you wish to complete the purchase although in many cases this date is agreed at a later date
- It will contain a condition that makes your offer conditional on getting your mortgage
- If you still have to sell your current home, it will contain a condition that your offer is conditional on that sale
- If appropriate it will make your offer conditional on getting a satisfactory damp specialist report or a roof inspection report
The Offer itself is quite short. This is because in Scotland we now have a set of Standard Clauses which contain all the other standard conditions applicable to the purchase of residential property.
The Qualified Acceptance
Once your Offer has been verbally accepted by the sellers, the sellers’ solicitor then takes detailed instructions form the sellers and then sends us the next Contract Letter which we call the Qualified Acceptance.
Why is it called the Qualified Acceptance?
Simply because this next Contract Letter amends or qualifies some of the terms of the Offer and Standard Clauses rather than – which is very rare – an outright Acceptance without amended any of the terms of the Offer.
Further Contract Letters
Once we receive the Qualified Acceptance, we then send you a detailed Report explaining the terms of the Offer and Standard Clauses as they have been amended by the Qualified Acceptance. The Report will contain recommendations on which amendments are fine and acceptable and those which cannot be accepted or only accepted once further information has been provided by the Seller’s solicitor. There will then be further exchanges of Contract Letters between us and the Seller’s solicitors until all points are agreed and at that point the Final Acceptance Letter is issued when there will be a legally binding contract between you and the sellers.