Missives –
The Complete Guide

Missives Meaning

Missives are defined as a series of formal letters or written communication between solicitors.

They form a key part of the purchase and sale of properties under Scottish conveyancing law (and Law Society guidelines).

Missives play a crucial part in forming the legally binding contract for the sale of a house, flat, building, structure and/or land site.

How Do Missives Work?

The process starts after the buyer sends an acceptable offer for a property to the seller’s solicitor.

The buyer’s and seller’s solicitors then exchange formal letters – aimed at finding a mutually agreeable position so that the sale can proceed to the next stage.

There must be a minimum of two letters. In reality, most transactions involve several written exchanges – particularly if there are specific nuances or complexities that need to be “ironed out”.

The first formal letter in the series of missives is the offer. This will outline the conditions, rights and obligations related to the sale. The buyer’s solicitor sends the first missive to the seller’s solicitor.

If the seller accepts the offer and conditions contained within the letter from the outset, the solicitor can send a reply letter agreeing to proceed – known as a “straight acceptance”. This is great news for all involved as it effectively creates a legal contract based on the terms laid out in the letter. The sale can then move forward quickly.

In most cases, however, the seller’s solicitor will review the proposed terms and respond with a “qualified acceptance” letter. This may agree to some of the terms of the offer, turn down others and add further conditions.

The buyer’s solicitor and the client will discuss the terms and, if happy, will agree to the qualified acceptance letter.

Further Missives

If not, there may be further exchanges of qualified acceptance letters – often combined with phone conversations and sometimes face-to-face meetings.

The aim is to exchange as many qualified acceptance letters as necessary. The solicitors should then arrive at a point where the final acceptance letter outlines the mutually agreed terms.

Note that, during this back and forth, either party can pull out of the sale.  That’s why it’s crucial for both sides to work with proactive conveyancing solicitors.

Specifics Found within Missives

Whilst the Scottish legal system has very specific differences in its conveyancing processes, concluding missives can broadly be compared to the exchange of contracts in England and Wales.

Some of the crucial elements found within missive-related documentation include:

• Purchaser and seller’s details;
• The property’s address;
• The agreed purchase price;
• A mutually agreed date of entry (where the buyer + seller exchange keys / the sale completes);
• Sale conditions such as mortgage offers, conveyancing searches, pending survey results, dependent sales;
• Confirmation of vacant possession;
• Standard conditions should either buyer or seller pull out of the sale.

Property Checks (Before Concluding Missives)

At the same time as receiving the acceptance from the seller’s solicitor, the buyer’s solicitor will review the title deeds, Land Certificates, legal reports and undertake conveyancing searches.

There may be separate enquiries made to the seller’s solicitor for clarifications to ensure that there are no defects or other concerning encumbrances.

Some buyers may also request to see the property to assess planning potential say, for instance, there is adjacent land or potential to extend the property.

Do Concluded Missives Represent a Legally Binding Contract?

Yes, according to the Law Society of Scotland: “when a final agreement is reached the Missives are said to be concluded and there then exists a legally binding contract”.

Note that some concluded missives contain “suspensive” conditions which protect the buyer should certain scenarios materialise.

These clauses include:

• Should the mortgage offer fall through, expire or it contains with errors / unfeasible conditions;
• Should the mortgage company underwriter requests further information details prior to advancing finance;
• Where the property value (determined by a professional, not an estate agent) is lower than originally expected;
• Structural or other serious issues appear in the property survey;
• There is a chain break making the transaction impossible to complete;
• Delivery of a satisfactory damp and/or timber report;
• Should there be delays in obtaining planning consent and building regulations document;
• Awaiting details of undisclosed legal proceedings. In Edinburgh, if there are Statutory Notices for example – these require extra legal work that will cover both parties should they ever be enforced.

Should the sale subsequently collapse as a result of one or more of the above scenarios, sellers often approach a property auction service or We Buy Any House company. Other times, the property the seller withdraws the property from the market.

At the seller’s discretion, it will only be possible to view the property until after the conclusion of missives.

How Long Does it Take to Conclude Missives?

Much will depend on the complexity of the transaction.

Should it be a fairly simple house or flat, and assuming there’s a straight acceptance or a handful of qualified acceptance exchanges, it’s possible for the missives to be concluded within a few days.  This could involve the buyer’s solicitor incorporating suspensive clauses mentioned above.

Should there be an added level of complexity during the legal process, however, things will take longer. More commonly, there are title-related issues appear such as negative easements, restrictive covenants and/or overage clauses on land sales.

Relative to residential property, commercial sales also tend to involve more qualified acceptance letters as there are more intricate details involved – especially if existing leases are in place.

Solicitors will duly advise of any further investigations they need to conduct, extra time needed for negotiation and expectations as to when the missives will be concluded.

Our sell house quick solicitors – who liaise with each other on our (Property Solvers’) behalf as the buyer and our seller client – can have the missives concluded in 1 business day (see below).

Who Signs the Missives?

Note that the missives do not require signatures or witnessing.

The solicitors may choose to sign letters (if not sent by email or via cloud software) but these do not constitute a legally binding contract.

Scottish Standard Clauses

Attached to the offer will be a schedule of Scottish Standard Clauses (aligned with Law Society standards).

• Fixtures, fittings and contents to be included as part of the sale
• Awareness of circumstances affecting the property
• Specialist reports
• Central heating, systems and appliances
• Proposed development notifications
• Statutory notices
• Property management and factors (for flats and buildings)
• Alterations
• Disputes / litigation
• Access
• Utilities and services
• Breach of contract by the seller / purchaser
• New home warranty schemes (where applicable)
• Title conditions
• Awareness of encumbrances
• Advance notices
• Settlement / Registration of title
• Incorporated bodies
• Risk / insurance
• Property Enquiry Certificate (PEC)
• Coal authority report
• Occupancy rights
• Suppression of missives
• Address details
• Limitation of claims
• Entire agreement
• Minimum period of ownership / possession
• Green deal
• Crofting
• Home Reports
• Execution by attorney
• Third-party rights
• Council tax
• Title indemnity policies.

Can I Pull Out of Missives as Buyer or Seller?

No, as mentioned above, if the missives are concluded there is a binding agreement.

If the buyer or seller decided to withdraw, there is a legally-enforceable breach of contract. As a result, the counterparty can claim abortive costs. The solicitor, estate agent or auction house can also claim for sunk costs.

Should either party refuse to cooperate, the case could then go to court.

From the buyer’s perspective, this could result in an order to buy the property or compensate the seller in some other way such as a settlement.

Conversely, the buyer can force the seller to proceed with the sale or financially settle (in or out of court). This involves some form of compensation to cover the buyer’s expenses such as legal costs.

In either case, speaking to a litigation solicitor (who do not come cheap) may well be necessary.

Mortgages and Missives

Once a verbal offer for the property has been accepted (pre-missives), assuming the sale is not for cash, the buyer’s solicitor will advise obtaining the mortgage offer in good time.

The lender will issue a formal offer. Assuming the buyer is happy to proceed, the solicitor can be instructed to conclude missives (unless there are conditional clauses as described above).

Note that the buyer solicitor will rarely conclude missives without a mortgage offer firmly in place.

Signing Mortgage Documents and Sale Completion (Post Missives)

The final stages of the legal process involve the buyers solicitor will forwarding a completion statement.

This will break down the agreed purchase price of the property, the deposit or cash amount payable, conveyancing fees, Land and Buildings Transaction Tax (LBTT) due amongst others.

There will also be money laundering requirements laid out by the Scottish Law Society. These essentially check that the source of the deposit funds is legitimate.

The seller will also need to sign the standard security or formal mortgage document. On the completion sate, the buyer’s solicitor will forward the settlement price to the seller’s side.

The seller’s solicitor’s role at this juncture will be to help discharge and mortgage or secured loans against the property. The solicitor will also forward the completion statement – which will contain legal, disbursements, stamp duty obligations, estate agency fees amongst others.

The buyer’s solicitor receives the title deeds.  He/she will then arrange for title registration with the Land Register of Scotland.

Disposition of Property Scotland

The buyer’s solicitor will draft a written contract that transfers ownership.

The seller’s solicitor will check through and request any amendments where necessary.  The seller typically signs the disposition the day before settlement (or completion).

The buyer then receives the keys.

Do Auction Sales Involve Missives?

Auction sales are different to traditional property sales in that “Articles of Roup” replace the missives. This is a standard contract that bidders can view in advance (as part of the legal pack).

Articles of Roup contain the terms laid out by the seller and the title will be taken “as it stands” (i.e. even with any underling legal issues). There is no formal letter exchange process as exists with normal sales.

Should you be interested in selling your property in this way, Property Solvers run secure online auctions – operating in Glasgow, Edinburgh, Aberdeen, Dundee, East Kilbride and across Scotland.

Missives for Fast Cash Sales

Cash property buyers are much more likely progress the missives to straight acceptance (a minimum of two letters).

During the letter exchange, viewings and a professional survey will be rapidly undertaken so that the missives concluded position is reached quickly.

Here at Property Solvers, we can complete sales in as little as one week.

Missives for New Build Home Sales

After payment of the reservation fee, the homebuilder / developer’s solicitor will forward the missive document to the buyer’s conveyancer.

The buyer’s solicitor will then spend time checking the title other relevant legal details. During this period, although Scottish developers do not need to produce a Home Report, the buyer will instruct mortgage valuation by a professional surveyor.

As the property is not built, this will be based on the future value (although this is often repeated once the building works are complete to take into account market fluctuations). In such scenarios, the concluded missives contain “suspensive” conditions that will ensure the valuations correlate.

Note that some developers have been known to provide non-negotiable terms – particularly if the housing is in high demand. A good solicitor will flag such issues well in advance.

Once the seller is completely happy, the buyer’s solicitor submits the paperwork to the homebuilder’s solicitor – concluding missives shortly afterwards.