Missives

Many people have heard of the term “missives” in connection with buying or selling property, but they may not be very sure what missives actually are. Here, Laura McFadzean, one of our Directors and an experienced conveyancing solicitor, explains what missives are, how they work, and why one of the most commonly-held beliefs about missives is actually a myth.

Missives = Contract

The term “missives” as it is used in Scottish conveyancing practice means a series of letters between solicitors on behalf of their clients which constitute the contract for the sale of property from the seller to the buyer. By law, a contract for the purchase/sale of property must be constituted in writing.

How Many Letters?

The missives are made up of a minimum of two letters (offer and a straight acceptance), but there will usually be three of four letters, and sometimes more.

Offer, Qualified Acceptance, Further Formal Letters

The first letter in the missives is the offer, which contains various conditions (see below). The offer is usually sent by the purchaser’s solicitors to the seller’s solicitors or estate agents.

If all of the conditions in the offer are acceptable to the seller then the seller’s solicitors can send a letter accepting all of the terms of the offer. This is known as a “straight acceptance,” and it creates a legally binding contract on the terms set out in the offer.

Almost always, however, the seller’s solicitors will send what is known as a “Qualified Acceptance” which accepts some of the terms of the offer, rejects some and qualifies some, and may add further conditions. The purchaser and his/her solicitors will then discuss the terms of the Qualified Acceptance. If these are acceptable, the purchaser’s solicitors can send a formal letter accepting the terms of the Qualified Acceptance and creating a legally binding contract on the terms set out in the offer as amended by the Qualified Acceptance.

However, if the purchaser wishes to reject or amend some of the conditions in the Qualified Acceptance, or to add further conditions, then his/her solicitors will send a formal letter making the appropriate amendments. The seller and his/her solicitors will then consider the terms of this formal letter to determine whether they are acceptable.

This process continues until one party sends a formal letter accepting all of the conditions in the other party’s last formal letter, and in doing so creates a legally binding contract.

Missives Concluded = Legally Binding Contract

Conveyancers talk about missives being “concluded”. This means that the process outlined above has been completed and there is a legally binding contract. Until the process has been completed there is no legally binding contract and either party can walk away without any liability to the other party.

How long will it take for the missives to be concluded?

Ah, the million dollar question! There is no set length of time it will take for missives to be concluded. It is theoretically possible for missives to be concluded very quickly (within a few hours, or even less than an hour), but in practice, this never happens. There are usually various matters to be dealt with after an offer is submitted before the parties will be happy to conclude missives.

Solicitors are under a professional duty to conclude missives without undue delay, and to advise the other party’s solicitors at an early stage if there is going to be a delay in concluding missives so that the other party can decide whether they are happy to proceed on that basis.

In current market conditions, the most common reason for a delay in the conclusion of missives is that the purchaser is waiting for (a) missives to be concluded for the sale of his/her own property and/or (b) his/her written mortgage offer to be received before committing to the purchase of the property. This can sometimes lead to missives still not being concluded very shortly before the scheduled date of entry, and this can be a very stressful situation for all involved.

Ideally, missives would be concluded fairly early on in the course of the transaction, but often this is not possible (or at least not desirable) from the point of view of one or both parties.

What are the normal conditions in the missives?

The offer will set out the terms specific to the transaction, in particular:

• the property
• the price
• the date of entry
• any extras to be included in the sale, and
• any other conditions on which the offer is made, eg subject to survey, subject to the sale of another property, or subject to receipt of the purchaser’s written mortgage offer.

The offer will also contain an incorporation of a set of Standard Clauses into the offer. These have been drafted by conveyancing experts and are designed to be fair to both parties on the basis of accepted conveyancing practice. In Edinburgh and across the Central Belt we use the Combined Standard Clauses, which are a combination of the previous Edinburgh and Glasgow Standard Clauses (referred to at one point in the drafting process as “the Harthill missives”!).

The Combined Standard Clauses cover matters such as fixtures and fittings, specialist reports and guarantees, working condition of systems and appliances, Statutory Notices, factors, alterations requiring Planning Permission or Building Warrant, access to the property after missives are concluded, title conditions, property searches, and breach of contract. You can find a copy of the Combined Standard Clauses and a Client Guide to the clauses on the Edinburgh Conveyancers Forum’s website.

When do I sign the missives?

Actually, you don’t! Many people talk about “signing the missives” and ask when they have to come into the office to do this. As explained above, the letters that make up the missives are sent by (and therefore signed by) solicitors on behalf of their client and on the basis of their client’s instructions. So the terms of the missives will be explained to you and discussed with you, but you don’t actually sign them.

New build properties

The procedure for newbuild properties is slightly different in that the builders’ solicitors will issue an offer to sell on behalf of the builders, addressed to the purchaser’s solicitors. The terms of the offer to sell are usually fairly heavily weighted in favour of the builders, and the purchaser’s solicitors must then negotiate to make the missives as fair as possible for the purchaser. Conveyancing experts are working on producing a set of standard conditions for newbuild properties which will be designed to be fair to both parties.

This is a brief overview of the process of concluding missives. If you have any queries on anything in relation to missives or any other conveyancing matter then please do not hesitate to contact me on 0131 312 7276 or lmm@elpamsolicitors.co.uk.