Buying a home in Scotland is an exciting milestone but unfortunately, settlement isn’t always the end of your concerns. Even after keys are handed over, disputes can arise between buyers and sellers, particularly in relation to obligations contained in the Scottish Standard Clauses that form part of nearly every residential conveyancing contract (missives).
At Delaney Graham Solicitors in Glasgow, we regularly advise clients on their rights and responsibilities when things go wrong after settlement. Here’s a guide to some of the most common issues and how they’re typically handled.
1. Understanding the Scottish Standard Clauses
The Scottish Standard Clauses (currently in their sixth edition) are a set of standard missive conditions widely used by practitioners to streamline residential property contracts across Scotland. They deal with key obligations between buyer and seller and are designed to provide certainty and protection for both parties.
While they help to create a level playing field, the very fact that they create obligations that survive settlement also means they can be the source of post-completion disputes.
Sadly, not every house is left in the same condition as it was when viewings took place, which we appreciate can be a source of frustration for buyers.
2. Defects and Repairs Clauses (Clause 4)
One of the most commonly disputed areas relates to warranties about the systems included in the sale.
The systems typically cover the water, drainage, electrics and gas (central heating) unless the missives specifically states otherwise.
It is important to note that “appliances” or “white goods” are no longer protected under this clause and are sold as seen – with no recourse against the seller if they are not working.
Under the relevant clauses, the seller typically undertakes that systems will be in working order commensurate with age at the date of settlement and agrees to make good defects if they are notified within a defined period after settlement (this is usually five working days).
Typical issues:
- No heating, or hot water;
- Faulty electrics;
- Disputes about whether a defect falls within the clause or should have been noticed at the time of viewing;
- Disagreement over what constitutes working order “commensurate with age”.
Practical tip: The buyer needs to instruct a solicitor to raise an intimation of claim to the seller’s solicitors relating to any alleged defect within the specified time limit.
Please note that a buyer only has a valid claim in the event that the aggregate cost of remedying the defects is £500 or more. Therefore, the clause is designed to cover major issues.
It is worth noting that the seller should be given the opportunity to instruct their own tradesperson to carry out a repair, unless it is an emergency.
The systems not being compliant with current health and safety regulations does not render the system to not be in working order. This should particularly be borne in mind with older properties.
3. Disclosure Obligations and Warranties
The Scottish Standard Clauses also include warranties from the seller about planning, notices, major repairs, disputes with neighbours, and servitudes.
Disputes can arise where:
- A neighbouring property has planning permission and begins works which were not disclosed by the seller during the conveyancing process;
- There are ongoing major repairs to common parts which were not instructed or disclosed prior to settlement;
- Neighbour disputes (e.g. relating to boundary or rights of access) surface post-completion.
In such cases, buyers may have the right to raise court action if warranties are breached but these claims can be complex and advice from a civil litigation solicitor should be sought. It can also be difficult to quantify the loss in such a claim.
4. Timing Issues Around Access and Notification
Another source of frustration for buyers is access obligations between conclusion of missives and settlement. The Scottish Standard Clauses allow buyers limited access before settlement for practical purposes (e.g., measuring up). It is often the case that missives are not concluded until close to the settlement date therefore there may be no practical opportunity to visit the property again to measure up between the conclusion of missives and the date of entry.
Allowing buyers access prior to the conclusion of missives (the point at which there is a binding contract in place) is at the discretion of the seller but it is usually advised against by their solicitor and estate agent as buyers may be seeking to access because they are actually having second thoughts about proceeding with the purchase.
Additionally, buyers must act promptly in notifying their solicitor when reporting defects after the date of settlement. Failure to do so within the relevant period can extinguish certain claims under the Scottish Standard Clauses in the missives.
5. Survey and Home Report Limitations
While the Home Report and survey will highlight many defects, some issues — such as hidden damp, structural problems or inadequate services — may only become apparent after moving in. In these scenarios, the Scottish Standard Clauses may offer a remedy, but not always.
For example:
- Defects uncovered after settlement might fall outside specific Scottish Standard Clauses if they relate to matters buyers were advised to investigate before the date of entry. For example, not instructing a damp or structural survey, where there is cause to do so, as per comments in the home report.
- Issues not covered by the standard warranties often require alternative legal routes (e.g. misrepresentation, negligence by professionals, or other remedies).
The concept of “Caveat Emptor” meaning “Buyer Beware” in conveyancing matters is an accepted principle in Scots law. This means that the property is sold in the same condition as it was when you viewed. The home report is a non-intrusive survey and may not highlight issues such as windows that don’t open or staining behind large items of furniture.
A buyer should therefore be thorough when inspecting the property and two viewings are always better than one.
6. What Should You Do If a Dispute Arises?
If you encounter a post-settlement issue that you believe falls within the Scottish Standard Clauses:
- Seek legal advice from your solicitor promptly: Time limits for notices and claims are strict. You should also request a copy of the missives, if you do not have it to hand;
- Gather evidence: Professional reports (e.g. from a surveyor or engineer), photographs, and correspondence are critical;
- Engage with the other side formally: Often a solicitor’s letter alone can prompt resolution without the need for litigation;
- Consider dispute resolution: If negotiations fail, formal legal proceedings may be necessary.
Final Thoughts
We sympathise when there are major issues with your new home. Sadly, it can take the shine away from what has been an exciting landmark in life.
The Scottish Standard Clauses play a vital role in protecting both buyers and sellers in residential property transactions in Scotland. They are essentially deemed to be fair and reasonable and they set the industry standard. However, they are often misinterpreted and wrong assumptions are made regarding where any liability lies.
Most conveyancing solicitors do not deal with litigation. Therefore, if it is worth pursuing, buyers can raise their own Small Claim in the local Sheriff Court although we are always happy to refer clients to an appropriate litigation solicitor.
