Buying or selling a home is a big decision that should not be taken lightly. The whole process can be a bit daunting and depending on the individual case, can be quite complex. Additionally, the system in Scotland differs from that used in England in Wales making it especially difficult to grasp when buying across borders.
An experienced solicitor will not only make sure that everything runs smoothly but also be able to explain the different steps in simple terms. The following text will take a look at missives, which for many buyers and sellers cause some confusion, to give an overview of what they are, why they are needed and what it means to ‘conclude the missives’.
In simple terms, the aim of a sale is to transfer the ownership of a property from the seller to the buyer. This legal process is called ‘conveyancing’ and is undertaken by the solicitors of the buyer and seller or one solicitor they have both agreed on. It ends with a written contract between the original owner (seller) and the new owner (buyer). However, to get to that point, the buyer and seller will have to agree on all terms and conditions of the sale. The written exchange of terms and conditions is what are known as the missives. They are therefore required before the conveyancing can take place.
Essentially the missives are letters exchanged between buyer and seller via their solicitors. This does not have to be a lengthy negotiation or exchange: all that is required is the buyer’s written offer for the property and the matching acceptance of this offer by the seller. Therefore, the missives can only be these two letters. However, in reality, this can be much more complex: some of the conditions that have to be agreed between the buyer and seller are the price of the property, the date of completion, any special conditions concerning the individual property, and often a clause incorporating a Schedule of Standard Conditions. The latter is a set of generic conditions applying to most properties and are used to cover all commonly arising issues, such as the need for the seller to have appropriate documentation for alterations. Only if the buyer and seller agree on all terms and conditions, can the missives be concluded.
Often, buying a property is not as straightforward as exchanging two letters and concluding the missives. Frequently, the buyer will make their offer conditional which means that the seller can only accept the offer, when the conditions in the offer are met.
One example is that the offer might depend on a survey. Only when the results of that survey are available, the transaction will be able to proceed. A second common condition is giving the buyer the opportunity to take a close look at the property and carry out searches. This is to ensure they know what condition property is in and be able to estimate the costs for potential renovations. The buyer might therefore want to want to see the location of the property and carry out checks on alterations to the property’s substance or review the appropriate documentation. A solicitor will know what exactly to look for to make sure the property complies with any relevant regulations. Following up from this, another complication may arise if buyer and seller disagree about the conditions. Any disagreement has to be settled with this exchange becoming part of the missive.
Additionally, a delay might be caused by the buyer due to issues with their mortgage. Their will withhold concluding missives until they have obtained a formal mortgage offer. This can be a lengthy process because of eligibility criteria and processing times depending on the respective lender.
The buyer can withdraw their offer at any time during the negotiation however, only until the missives have been concluded. This would be done through a solicitor by sending a written formal notice to the seller that the offer is withdrawn.
After the missives have been concluded it gets much more complicated to get out of the transaction and a refusal to pay the price for the property will constitute a breach of contract. In this situation the seller is likely to take this to court if no solution can be agreed. This might mean the buyer will be ordered to pay the price plus the seller’s expenses or pay compensation. The help of an experienced solicitor is therefore needed in such a situation. Similarly, if the seller wants to stop the sale, they can be taken to court, or a settlement can be reached to resolve the issues.
Therefore, when all terms and conditions have been exchanged and agreed upon, the solicitors will conclude the missives. The effect of this is that a binding legal contract is formed. This can also be referred to as having the missives ‘in place’ or the ‘bargain to be concluded’. Therefore, from this point on, both the seller and the buyer become parties of a binding contract and they have to fulfil their legal obligations and duties under it. The missives are therefore the essential part forming a contract for a purchase or sale of a property. The next step will be the conveyancing, where the ownership of the property actually passes over from seller to buyer.
The missives are a written exchange of documents between the buyer and the seller of a property. They contain the negotiation of the terms and conditions of the sale or purchase of a property. Once an agreement is reached, the missives will be concluded which means that a legally binding contract is formed and neither buyer or seller can withdraw their offer and acceptance anymore without risking further legal consequences.
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