When you sell your house in Scotland, you expect it to be final. You’ve received the sale price, handed the keys to the buyer, and moved on to your new home. You might not appreciate that there might be circumstances where you may be liable for some things after you’ve sold your house.

The Scottish Standard Clauses

The contract for buying and selling a house in Scotland must be in writing. This usually takes place by an exchange of letters, starting with an offer to buy, signed by lawyers on behalf of the seller and the buyer.

When a buyer offers to buy your house, the offer is usually created with reference to the Scottish Standard Clauses. That keeps the offer streamlined, with relatively few clauses. However, in its 6th Edition, the Scottish Standard Clauses contain thirty-six clauses, many of which have sub-clauses. The Scottish Conveyancing Forum has provided a Client Guide to the Scottish Standard Clauses, which includes the conditions and an explanation for each clause. 

Your solicitor and the buyer’s solicitor will change some of these clauses. The seller’s solicitor does this by issuing a qualified acceptance of the offer. This indicates which clauses are acceptable, which aren’t and which need modification. If the purchaser finds these acceptable, their solicitor will issue a final acceptance. This process of issuing qualified acceptances can go back and forth for some time until a final agreement is reached. This final agreement will contain all the conditions that apply to the sale and purchase of the house.

It is essential to note that during this time, either the buyer or the seller can withdraw from the deal without penalty.

Claims relating to fixtures and fittings

An offer will invariably include fixtures and fittings of some kind. There is also a “catch-all” clause in the Standard Clauses. Clause 1 deals with fixtures and fittings and provides a list of items. There are, however, a couple of areas of Clause 1 that could cause problems.

Clause 1.1.2 includes items that are fixed or fitted to the property and would cause damage if removed. That means if the seller removes items like this and causes damage, this could give rise to a claim for either the return of the item removed, repair costs for the damage caused by the removal or both.

Clause 1.2 contains a warranty that any items included in the price are free of debt. If they are not, the buyer will have a claim against the seller for breach of that warranty.

Also, in Clause 1.3, the seller undertakes to remove all items not otherwise included in the sale. If the seller does not do that, the purchaser could claim the cost of removing these items.

Central heating and systems

The situation relating to the condition of the central heating system is dealt with in Clause 4. This clause contains an undertaking by the seller that the central heating system will be in working order commensurate with its age on the settlement date. This clause goes on to say that the seller will make good any defects intimated in writing within 5 working days.

There are further qualifications to the extent of the seller’s responsibility, but if the seller breaches this condition, it can give rise to liability for repair costs.

Warranties

Some of the Standard Conditions contain warranties by the seller. A seller must take care if giving a warranty, especially if a warranty is given without proper enquiry. For example, if a seller warrants that they have not received any notification of a neighbouring development which could materially affect the property when, in fact, they had, the seller may become liable for costs for breach of warranty.

Warranties appear in various clauses in the Standard Clauses. The seller should make reasonable enquiries about the items in these clauses to ensure any warranty can be properly granted. If in doubt, do not grant any warranties.

Factoring charges

If a property factor looks after the common areas of the property, the seller will likely face a final account sometime after the settlement date. This allows the factor to include any repairs or maintenance charges due by the seller right up until the date of settlement.

Limitation of claims

The Standard Clauses limit the level of claim a buyer can make. This is a lower limit rather than an upper limit. Currently, if the value of a claim is less than £500, the buyer cannot raise a claim against the seller.

Limiting your liability

Your solicitor will discuss the terms of the offer with you and, when sending an acceptance, will take steps to limit your liability in relation to post-settlement claims. If you are a seller, you must be open and transparent with your solicitor when discussing the acceptance of the offer. If you know anything that could give rise to a post-settlement claim, you must tell your solicitor about this. Please do not leave it to chance or leave it too late. Otherwise, you might face a claim after you’ve sold your house.

Specialist Property Solicitors, North Berwick and Dunbar, East Lothian

Our solicitors have been advising clients on buying and selling property in North Berwick, Dunbar, East Lothian, and across Scotland. They deal with offers and missives every day and can answer any property questions you might have.

If you are thinking about buying or selling your house and want to discuss the best way to go about this, please get in touch with us.