43971
MISSIVES
- Ancient ceremony 'giving sasine' 15th century
- parties & nos of witnesses
- meet land being granted. Registration Act 1617
- verbal grant handing over earth & stone
- symbolic delivery of possession, essential to ceremony
- symbolic delivery of possession, essential to ceremony
- verbal grant handing over earth & stone
- meet land being granted. Registration Act 1617
- parties & nos of witnesses
- Evolution
- conveyancing flowed from register of sasines
- only gained real right after prescriptive period
- replaced with land registration system (county by county) Land Registration (Scotland) Act 1979
- state guarantee to title on registration as proprietor in possession (Kaur v Singh)
- state guarantee to title on registration as proprietor in possession (Kaur v Singh)
- replaced with land registration system (county by county) Land Registration (Scotland) Act 1979
- only gained real right after prescriptive period
- conveyancing flowed from register of sasines
- Abolition of Fuedal Tenure, etc (Scotland) Act 2000
- designed to modernise system of land ownership
- fuedal superiorities and most attendat rights abolished
- such as to collect fue duty abolished from 28/11/04
- some rights relating to use and management of property preserved
- some rights relating to use and management of property preserved
- such as to collect fue duty abolished from 28/11/04
- fuedal superiorities and most attendat rights abolished
- designed to modernise system of land ownership
- Chronology of House Purchase/sale transaction
- Qualified acceptance = counter offer Rutterford ltd v Allied Breweries Ltd
- Qualified acceptance = counter offer Rutterford ltd v Allied Breweries Ltd
- seller decides to sell, intructs estate agent/solicitor
- Solicitors (Scotland) Act 1980 s5
- provision for licensed conveyancer Law Reform (Misc Provisions) (Scotland) Act 1990
- provision for licensed conveyancer Law Reform (Misc Provisions) (Scotland) Act 1990
- schedule of particulars drawn up and marketing strategy agreed
- solicitor contacts existing lender & advises of potential sale, obtains title deeds& certificates
- request local authority certifcates (highways, planning, building control water and drainage)
- ensures all necessary permissions, approvals, guarantees etc obtained as house is
- ensures all necessary permissions, approvals, guarantees etc obtained as house is
- request local authority certifcates (highways, planning, building control water and drainage)
- solicitor contacts existing lender & advises of potential sale, obtains title deeds& certificates
- purchaser inspects property & decides to buy
- consults & insturcts own solicitor
- in turn intimates note of interest
- solicitor obtains further property info incl Property Info Pack (part 3 Housing (Scotland) Act 2006
- solicitor obtains further property info incl Property Info Pack (part 3 Housing (Scotland) Act 2006
- in turn intimates note of interest
- consults & insturcts own solicitor
- purchasers solicitor submits offer in time for closing date, with relevant suspensive clauses
- buyer is successful & receives qualified acceptance from seller
- subject to concluded missives
- purchases applies for loan from commercial lender
- purchases applies for loan from commercial lender
- subject to concluded missives
- sellers solicitor sends out titles, certificates and drafts (discharge of sellers standard security letter of obligation, matrimonial affidavits,
- renunciations if any, search forms etc to purchasers solicitor. Keeps a detailed accurate diary
- purchasers solicitor examines qualifications and titles on behalf of client & lender
- carefully examines the loan instructions
- confirms title and other matters are in order (descriptions, burdens, permissions, etc) & raises any queries
- prepares purchase disposition, standard security forms
- reports to lender (report on title)
- instructs funds to be available for date of settlement
- submits acceptance or further qualified acceptance deleteing the clause that is being updated
- reports to client & revises sellers drafts and submits these with own drafts to sellers solicitor for revisal
- reports to client & revises sellers drafts and submits these with own drafts to sellers solicitor for revisal
- submits acceptance or further qualified acceptance deleteing the clause that is being updated
- instructs funds to be available for date of settlement
- reports to lender (report on title)
- prepares purchase disposition, standard security forms
- confirms title and other matters are in order (descriptions, burdens, permissions, etc) & raises any queries
- sellers solicitor obtains interim report on search (update of title certificate)
- and forwards to purchasers solicitor
- sends discharge loan to clients existing lender for execution and return (held as undelivered pending redemption)
- returns purchasers drafts revised
- returns purchasers drafts revised
- sends discharge loan to clients existing lender for execution and return (held as undelivered pending redemption)
- purchasers solicitor engrosses disposition & returns to sellers solicitor for execution (handed over at settlement
- engrosses the standard security and gets client to sign
- deals with any collateral security (life policies)
- prepares matrimonial homes affidavits/consents and has signed
- prepares matrimonial homes affidavits/consents and has signed
- deals with any collateral security (life policies)
- receives the banks, clients money & loan funds and arranges insurance
- exchange of funds for documents (including discharge of sellers existing loan) & keys
- Purchasers solicitor completes testing clause in disposition
- thereafter sends deeds, certificates & forms to keeper of register for registration.
- once registered new owner becomes proprietor in possession (Kaur v Singh)
- sellers solicitor repays the loan
- thereafer purchasers solicitor receives land & charge certificates
- Standard security, land and charge certificates are deposited with lender
- missives can be faxed but witnessed and signed in this way not enough
- used as evidence of terms of formal offer but letter has not yet been delivered Thomas Park & Anor August 2009
- Result: missives contain trust clause
- sender deliver hard copy if and when required. Requirements of Writing (Scotland) Act 1995 s1(2)
- sender deliver hard copy if and when required. Requirements of Writing (Scotland) Act 1995 s1(2)
- Result: missives contain trust clause
- used as evidence of terms of formal offer but letter has not yet been delivered Thomas Park & Anor August 2009
- missives can be faxed but witnessed and signed in this way not enough
- Standard security, land and charge certificates are deposited with lender
- thereafer purchasers solicitor receives land & charge certificates
- once registered new owner becomes proprietor in possession (Kaur v Singh)
- thereafter sends deeds, certificates & forms to keeper of register for registration.
- Purchasers solicitor completes testing clause in disposition
- exchange of funds for documents (including discharge of sellers existing loan) & keys
- engrosses the standard security and gets client to sign
- and forwards to purchasers solicitor
- carefully examines the loan instructions
- renunciations if any, search forms etc to purchasers solicitor. Keeps a detailed accurate diary
- buyer is successful & receives qualified acceptance from seller
- Solicitors (Scotland) Act 1980 s5
- Role of missives in purchase sale, use of suspensive conditions & warranties
- Parties
- Missives create a bindng contract and on conclusion create a bilateral obligationand express consensus in idem
- Haldane v Watson
- Haldane v Watson
- Missives create a bindng contract and on conclusion create a bilateral obligationand express consensus in idem
- Property
- missives expressly state parties intentions, and extent of heritable land to be conveyed
- Dispostion should match missives, if don't could be neglience/solicitor or claim for unjustified enrichment, McSorley v Drennan
- Dispostion should match missives, if don't could be neglience/solicitor or claim for unjustified enrichment, McSorley v Drennan
- missives expressly state parties intentions, and extent of heritable land to be conveyed
- Price
- price apportioned between heritable and moveable determined by rules of accession
- Heritable primarliy land & everything affixed or growing from - Christie v Smiths Exr
- Moveable includes corporeal and incorporeal with no direct connection to land Edinburgh & Leith Gas Comrs v Smart
- Moveable includes corporeal and incorporeal with no direct connection to land Edinburgh & Leith Gas Comrs v Smart
- Heritable primarliy land & everything affixed or growing from - Christie v Smiths Exr
- price apportioned between heritable and moveable determined by rules of accession
- Suspensive Conditions - creates an obligation subject to condition being purified: subject to acceptable offer of finance etc
- Purchaser almost certainly providedpenal in missives entitlement to resile without penalty if not granted in timescale
- Purchaser in breach of contract, possibly material breach, if failed to obtain permissions timeously. Khazaka v Drysdale
- Purchaser must act reasonably not seek to resile that he dissatisfied for another reason other than suspensive condition
- Gordon District Council v wimpey Homes Holding Ltd
- Purchaser obliged reasonableness before rescinding depends on circumstances
- HELD: purchaser under a duty to obtain report which justified termination before competentlyy doing so
- McKay v Leigh Estates (Scotland) Ltd
- Johnv Wyllie v Ryan Industrial Fuels Ltd - view that each party intended that the other would act reasonably
- Johnv Wyllie v Ryan Industrial Fuels Ltd - view that each party intended that the other would act reasonably
- McKay v Leigh Estates (Scotland) Ltd
- HELD: purchaser under a duty to obtain report which justified termination before competentlyy doing so
- Purchaser obliged reasonableness before rescinding depends on circumstances
- Gordon District Council v wimpey Homes Holding Ltd
- Purchaser must act reasonably not seek to resile that he dissatisfied for another reason other than suspensive condition
- Purchaser in breach of contract, possibly material breach, if failed to obtain permissions timeously. Khazaka v Drysdale
- Purchaser almost certainly providedpenal in missives entitlement to resile without penalty if not granted in timescale
- WARRANDICE
- Sale/purchase 3 stages
- 1) completion of contract
- 2) Delivery of conveyanceto purchaser against payment when he takes possession
- 3) Registration of the conveyance in specified time Burnetts Trs v Burnett
- 3) Registration of the conveyance in specified time Burnetts Trs v Burnett
- 2) Delivery of conveyanceto purchaser against payment when he takes possession
- PURCHASER
- seller
- give good and marketable title, possesson & clear search
- seller unfulfils, the purchasers remedy is rescission - Whyte v Lee
- thereafter raises an action for damages
- Purchaser fails to pay agreed price on date, breach of missives
- seller - decree for payment
- as only positive obligation: AMA (Newton) Limited v Anthony Finlay
- possible for contract to continue
- seller seeks action for implement - Carter v Lornie
- Irrespective of completion but late, seller can seek damages
- can also seek interest under common law and contract
- can also seek interest under common law and contract
- Irrespective of completion but late, seller can seek damages
- seller seeks action for implement - Carter v Lornie
- possible for contract to continue
- as only positive obligation: AMA (Newton) Limited v Anthony Finlay
- seller - decree for payment
- thereafter raises an action for damages
- seller unfulfils, the purchasers remedy is rescission - Whyte v Lee
- give good and marketable title, possesson & clear search
- 1) completion of contract
- Sale/purchase 3 stages
- WARRANTIES
- contained throughout the missives
- both heritable/moveable free of finance
- not subject to litigation
- and are free from defects
- and are free from defects
- not subject to litigation
- both heritable/moveable free of finance
- contained throughout the missives
- Parties
- property conveyance is a personal guarantee between the parties
- seller can only sell if he has good and marketable title
- free of any inhibitions
- free of any inhibitions
- purchaser agrees to pay price on set date
- Disposition is registered in Land register Land Registration (Scotland) Act 1979
- once issued guarantees title but can be challenged in limited circumstances
- once issued guarantees title but can be challenged in limited circumstances
- Disposition is registered in Land register Land Registration (Scotland) Act 1979
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