All offers for the purchase and sale of residential property in Scotland now incorporate the Scottish Standard Clauses as their detailed Terms and Conditions. The Scottish Standard Clauses currently in their third edition, which can be found here together with a Client Guide form the basis of the missives or the series of contractual letters passing between solicitors which set out the terms of the agreement between a purchaser and a seller and set out the conditions of sale and purchase.
The Scottish Standard Clauses are the culmination of many years of discussion amongst solicitors and academics and are regularly reviewed and revised to reflect changes in conveyancing law and practice. They are designed to be adopted throughout Scotland as a uniformed set of conditions and are intended to promote the swift conclusion of missives.
Since the Standard Clauses also reflect local practice, they are considered to represent a reasonable compromise between the competing interests of sellers and purchasers and it is expected that only minimal amendment will be made to their terms. It is therefore advisable to familiarise yourself with the matters covered by the Standard Clauses.
There is a detailed explanation of the nature and effect of each of the clauses contained within the Client Guide which was prepared to complement the Standard Clauses. Some Clauses which are of particular interest are:
Standard Clause 2:
This Clause requires the Seller to disclose their awareness of whether any of the matters specified within this Clause affects their property (and if the property is located within a tenement building whether the tenement is affected). The matters requiring disclosure are any Notice of Potential Liability for Costs, the Notices of Payment of Improvement or Repairs Grants, flooding from any river or water course which has occurred within the past 5 years and other than as disclosed within the Home Report any structural defects, wet rot, dry rot, rising damp, woodworm and similar. The purchaser will be deemed to have accepted any such matters referred to within the Home Report.
Standard Clause 3:
This Clause requires a Seller to produce any reports, specifications and guarantee certificates in relation to specialist treatments such as treatments to remediate wet or dry rot, woodworm or the insulation of a damp proof course or any other works which might be the subject of a guarantee, for instance the installation of replacement windows or cavity wall insulation.
Standard Clause 4:
This Clause provides that any systems, services and appliances serving the property and/or included in the sale price are in working order having regard to their age as at the Date of Entry. The definition of systems and services takes in gas, electricity, any central heating system, water and drainage but the Clause also covers the working condition of anything of a mechanical nature such as burglar alarm systems, extractor fans or cooker hoods. The purchaser is given five working days commencing on the Date of Entry to notify the selling agents of any system, service or appliance which is not functioning property or indeed at all as at the Date of Entry and in the event that any repairs required to restore the system, service or appliance to fully functioning order exceeds £400, the seller is liable to meet that cost.
This Clause is frequently restricted by a seller to exclude appliances, where the seller does not live at the property (for example, where the property has been tenanted for a period prior to sale or where the seller is instructing the sale in their capacity as an executor or Attorney of the owner) and is unwilling or unable to verify that the appliances are in working order. The Clause is also frequently restricted in Aberdeen in accordance with local practice in that area where by convention the seller will only offer a guarantee that any central heating system serving their property is in working order and will exclude any other system, service or appliance from the Clause.
Standard Clause 4.6 requires the seller to disclose to a purchaser any “notice or intimation” received from a third party that any system or service is in an unsafe or dangerous condition.
Standard Clause 5:
This Clause requires the seller to confirm to a purchaser any Neighbour Notifications served by them or received at their property seeking a Grant of Planning Permission in respect of any proposed alterations to the exterior of their or neighbouring properties or any proposed construction or development within the area. It also requires a seller to confirm whether they are aware of any development proposals which might be considered to have a detrimental impact upon the value or amenity of their property.
Standard Clause 7:
This Clause applies wherever the seller’s property is located within an estate or development or to parts or areas which are held in common or shared ownership such as the structural parts of a tenement building, shared services or utilities and amenity ground and requires the seller to obtain from any Factor appointed to administer the management and maintenance of the communal parts and areas, confirmation of any ongoing or impending communal repairs, details of the current service charges and the details of any common buildings insurance in place at the time of sale. It also provides for the apportionment of any Council Tax, Factoring charges, utilities and other expenses incurred in connection with the property between the purchaser and the seller as at the Date of Entry.
Standard Clause 8:
This Clause requires the seller to produce local authority consents and permissions (including Building Warrant Drawings, Completion Certificates, Grant of Planning Permission and where appropriate, Listed Building Consent) to certify any alterations undertaken to their properties within 20 years of the date of sale which are identified by a Surveyor as requiring local authority certification. Any alterations requiring local authority consent are usually specified within the Home Report.
Standard Clause 9:
This Clause requires the seller to disclose any current disputes with any neighbouring owners or occupies (including tenants) in particular in relation to access to their properties, their legal title or any Common Property (property within shared or communal ownership).
Standard Clause 16.1:
This Clause requires a seller to disclose to a purchaser any encumbrance which broadly means any use of their properties by a third party which might not be apparent from an examination of the title deeds alone, such as permitting a neighbour to access their property on an informal basis for maintenance and repair and any access taken by a utility provider to maintain services approximate to or on their property. The Clause also requires disclosure of any known Tree Preservation Orders, core paths or other public rights of way within or proximate to a property.
Standard Clause 20:
This Clause requires the seller to confirm that the current Buildings Insurance in place at the time of sale has been granted on “normal reasonable terms appropriate for the property”. This would oblige a seller to disclose any enhanced premiums or special conditions proposed by their insurer.
Standard Clause 29.3:
This Clause requires the seller to confirm any Green Deal Schemes which affect their property and whether their property benefits from any solar panelling or alternative means of electricity generation such as a supply arising from wind turbine energy.
Standard Clause 31:
This Clause provides confirmation by the seller that the information contained within the Property Questionnaire is true and correct to the best of their knowledge and belief and that there have been no changes in circumstances arising from the date of the preparation of the Property Questionnaire to the date of the submission of the offer which would cause any amendment to the responses recorded by the seller to the questions within the Property Questionnaire.