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Buying and selling in Scotland: still on track?
10 Jan 18
When few transactions actually fall through, it would serve clients (and the profession's reputation) better not to leave so much to the last minute in a house sale and purchase
Buying and selling your home can be a stressful time and no less so when you have a long period of uncertainty, caught in the no man’s land between offer accepted and deal done.
There was a day when the process of buying and selling in Scotland was hailed as one of the jewels in the crown of the Scottish legal system of house buying, where your word was your bond or, at least when your offer was put in writing through your lawyer, nine times out of 10 a swift acceptance would follow and that would be the deal done, the house sold and both parties move on.
Contrast that to the position south of the border, in England, particularly in times of flux, where the pressures of a rising or falling market and the merry dance between offer agreed to contracts exchanged would take weeks and months, with buyers and sellers alike seemingly powerless to cement the deal, and left with the ever present worry that, somewhere along the line, it could all come tumbling down like a house of cards. The longer the chain, the weaker the link and, even with good faith on the part of the principal players, if some party in the process wasn't playing ball, the conveyancing train would grind to a halt on occasions even before it left the platform!
Now, before we get carried away with the merits of the system in Scotland, the process has inevitably become more complicated by a number of factors resulting in a similar period of uncertainty between offer and concluded missives. One of the main causes for this has been the time taken to process mortgage applications, with offers conditional on the loan coming good. A mortgage promise is no longer worth the paper it's written on and lawyers wisely delay concluding until the buyer has the loan in place with the written offer on the lawyer’s desk. Further complications arise in cross-border transactions where a buyer is relying on exchanging contracts.
Inevitably, where there is uncertainty, this slows down the process and we end up with a backlog due to a reluctance of some to progress the conveyancing until all the ducks are lined up and there is a binding contract with all the lights at green. As a result, nothing gets done and, like in England, chaos reigns with a last minute rush to get everything in place while the clients are left in the dark, biting their fingernails, waiting on the lawyers to complete procedures, while they sit in the estate agent’s office, or on boxes with removers champing at the bit, awaiting the keys when the deal is finally secure.
Some may say that is just the way it has to be. There are also those in the legal profession who cannot contemplate advising a client to agree to anything that exposes them to risk or even the possibility of losing a deposit. Clearly, backs need to be covered and advisers need to protect clients, and themselves, against the possibility of things going wrong, but a no can do sir, jobsworth approach doesn't do clients or the legal profession any good. It may be the safe approach to do nothing but by sitting on hands or blaming the system, this simply adds to the frustration, stress and uncertainty, and inevitably the affected clients will blame the lawyers.
In reality, even these days most deals stick and once through the jungle, despite the frustrating delays, most emerge to the light of a new dawn and achieve house buyers' nirvana when they get the house of their dreams of many months before. So, accepting that deals come good in the majority of cases, surely it makes sense to progress and prepare as much of the groundwork to minimise stress and delays further down the line. Clearly it takes two to tango, but those who take a proactive and progressive approach should benefit both their clients and business so others eventually see the sense of following suit.
Over the years the Scottish legal profession has been keen to promote the benefits of our system, and introduced practices and procedures that help smoothe the process. Among these has been an almost universal acceptance of a standard set of conditions which are adopted in most formal offers covering the sort of issues that other systems leave for pre-contract enquiries, thus avoiding delays and flagging up issues with the advise and guidance of the lawyer at the outset so there should be no nasty surprises.
In Scotland we still have an excellent and efficient system. Leaving aside the factors causing delays, there is still an underlying principle that you act honourably and do unto others as you would have them do to you. As a rule, if a client goes back on a commitment and changes tack without justification, lawyers in Scotland won't simply do their instructing client's bidding and would feel obliged to withdraw and tell them to go elsewhere.
It is time to remind the profession that we are not simply mouthpieces. We represent and advise clients against an established background of ethics and professional practice that demands respect. The client deserves a better service, and failing to adhere to high standards and an appreciation of the need to achieve the result the client can reasonably expect leads to chaos, uncertainty and expense both for clients and the profession. Loss of reputation for an individual lawyer or firm is bad enough, but damage to the hard earned reputation that the legal profession has in the eyes of the buying and selling public, could be a huge loss to both the profession and clients, and once gone, not likely to be restored.
Ron Hastings, director, Hastings Legal, Selkirk