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Scottish and English conveyancing: are the two compatible?

15 July 19

An Inverness firm is in the unusual position of having English-qualified conveyancers on hand to deal with clients moving cross-border – and finds it beneficial

by Laura McCarthy

The short answer to the question in the title is yes, but only if your firm has a solicitor qualified in England & Wales who has the knowledge and expertise to conduct your English/Welsh transactions. The limited number of solicitors who are qualified to offer this service has, to date, meant that very few firms in Scotland are able to provide this as a viable option to their clients. 

Even if your firm is not intending to have conduct of an English transaction, but your clients have cross-border conveyancing queries, it is extremely beneficial to have a solicitor available to address any such queries for your clients. This could range from providing guidance about the English conveyancing process and procedure, to how cross-border cases can dovetail effectively and efficiently.

At Munro & Noble we are fortunate to have two dual-qualified solicitors, myself and my colleague Kay Bevans-Brown. Whilst Kay is not currently undertaking English/Welsh conveyancing, she has knowledge of the processes involved, and this insight has often proved useful when undertaking Scottish transactions with a linked English/Welsh matter. 

This article intends to focus on the commonalities and differences between Scottish, and English/Welsh transactions, and how as a firm we are able to align the two systems for our clients.

Procedural differences

In England a potential buyer ordinarily views a property and then approaches and makes a verbal or written offer to the selling agent. If the offer is agreed, the property is usually removed from the open market and the conveyancing process begins. 

Despite a property being “under offer”, an English selling agent is obliged to notify the sellers of any other offers that are received even after the conveyancing process has commenced. Provided contracts have not been exchanged, the sellers are free and able to accept an offer from another party should they so wish. This is referred to as “gazumping” and is regrettably common in England & Wales. Whilst this can happen in Scotland, generally once an offer has been accepted by a vendor in Scotland, the selling agent will not entertain any requests from third parties for viewings, or any offers, unless expressly advised to do so by the vendor. 

In England & Wales a vendor sometimes makes the unusual decision to accept offers from two buyers and state that the first party to be in a position to exchange contracts will be sold the property. This contract race, or “first past the post” approach, has been the subject of a significant amount of scrutiny on the part of members of the legal profession.

The buyer is also responsible for commissioning their own survey, and incurs an outlay for searches. These are all sums that the buyer is not able to recover from the vendor in the event of a transaction falling through prior to contracts being exchanged. This can often amount to losses for a potential buyer in the hundreds of pounds. 

Caveat emptor

In Scots law a transaction can become legally binding quickly, as opposed to the requirement in English law for legal title checks to be undertaken, searches requested and a mortgage offer to be received prior to contracts being exchanged. 

Historically this has meant that Scottish and English transactions have presented as difficult to align. Recently, however, the Scottish system has evolved so as to allow for conveyancers to receive a formal offer of loan or to satisfy conditions of an offer made, prior to the conclusion of missives. 

The principle of caveat emptor (“let the buyer beware”) is particularly relevant to England & Wales conveyancing. The onus of checking the legal title to a property before committing to purchase rests with the buyer. For that reason English conveyancers have to ensure they are satisfied that the legal title to the property is good, marketable and free from defect, whilst also establishing that their clients have sufficient funds with which to purchase the property. The differences in terminology between the two jurisdictions can often be confusing to clients involved in cross-border matters, and as such it is beneficial to a firm to have a solicitor on hand to address any queries, and/or explain matters. 

An extremely high proportion of negligence claims are brought against solicitors in the conveyancing sector, and for that reason from a risk and liability management perspective it is vital that all enquiries about the legal and marketable title to an English property are undertaken and satisfactorily addressed, prior to an exchange of contracts taking place. For this reason it is vitally important that a suitably qualified lawyer with English/Welsh conveyancing experience is on hand to attend to review all and any title documents to protect the interests of the client, the lender and ultimately your firm. 

Compatible? 

Fundamentally we as conveyancers acting in both sets of transactions simultaneously, must ensure that missives are only concluded in Scotland when parties are ready to exchange contracts in respect of the sale/purchase in England. 

From the perspective of Munro & Noble it has proven to be hugely beneficial for the client that wishes to buy and sell property across the border to have access to a firm that can transact in both markets. By employing lawyers that have the experience of working within both jurisdictions the potential for complications to arise is significantly reduced, making for contented clients. This benefits the firm financially and strengthens our position in the market. 

Laura McCarthy, associate, Munro & Noble

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