MISSIVES

MISSIVES

Ancient ceremony 'giving sasine' 15th century
1. parties & nos of witnesses
  1. meet land being granted. Registration Act 1617
    1. verbal grant handing over earth & stone
      1. symbolic delivery of possession, essential to ceremony
Evolution
1. conveyancing flowed from register of sasines
  1. only gained real right after prescriptive period
    1. replaced with land registration system (county by county) Land Registration (Scotland) Act 1979
      1. state guarantee to title on registration as proprietor in possession (Kaur v Singh)
Abolition of Fuedal Tenure, etc (Scotland) Act 2000
1. designed to modernise system of land ownership
  1. fuedal superiorities and most attendat rights abolished
    1. such as to collect fue duty abolished from 28/11/04
      1. some rights relating to use and management of property preserved
Chronology of House Purchase/sale transaction
1. Qualified acceptance = counter offer Rutterford ltd v Allied Breweries Ltd
seller decides to sell, intructs estate agent/solicitor
1. Solicitors (Scotland) Act 1980 s5
  1. provision for licensed conveyancer Law Reform (Misc Provisions) (Scotland) Act 1990
2. schedule of particulars drawn up and marketing strategy agreed
  1. solicitor contacts existing lender & advises of potential sale, obtains title deeds& certificates
    1. request local authority certifcates (highways, planning, building control water and drainage)
      1. ensures all necessary permissions, approvals, guarantees etc obtained as house is
3. purchaser inspects property & decides to buy
  1. consults & insturcts own solicitor
    1. in turn intimates note of interest
      1. solicitor obtains further property info incl Property Info Pack (part 3 Housing (Scotland) Act 2006
4. purchasers solicitor submits offer in time for closing date, with relevant suspensive clauses
  1. buyer is successful & receives qualified acceptance from seller
    1. subject to concluded missives
      1. purchases applies for loan from commercial lender
  2. sellers solicitor sends out titles, certificates and drafts (discharge of sellers standard security letter of obligation, matrimonial affidavits,
    1. renunciations if any, search forms etc to purchasers solicitor. Keeps a detailed accurate diary
    2. purchasers solicitor examines qualifications and titles on behalf of client & lender
      1. carefully examines the loan instructions
        confirms title and other matters are in order (descriptions, burdens, permissions, etc) & raises any queries
        prepares purchase disposition, standard security forms
        reports to lender (report on title)
        instructs funds to be available for date of settlement
        submits acceptance or further qualified acceptance deleteing the clause that is being updated
        reports to client & revises sellers drafts and submits these with own drafts to sellers solicitor for revisal
      2. sellers solicitor obtains interim report on search (update of title certificate)
        and forwards to purchasers solicitor
        sends discharge loan to clients existing lender for execution and return (held as undelivered pending redemption)
        returns purchasers drafts revised
        purchasers solicitor engrosses disposition & returns to sellers solicitor for execution (handed over at settlement
        engrosses the standard security and gets client to sign
        deals with any collateral security (life policies)
        prepares matrimonial homes affidavits/consents and has signed
        receives the banks, clients money & loan funds and arranges insurance
        exchange of funds for documents (including discharge of sellers existing loan) & keys
        Purchasers solicitor completes testing clause in disposition
        thereafter sends deeds, certificates & forms to keeper of register for registration.
        once registered new owner becomes proprietor in possession (Kaur v Singh)
        sellers solicitor repays the loan
        thereafer purchasers solicitor receives land & charge certificates
        Standard security, land and charge certificates are deposited with lender
        missives can be faxed but witnessed and signed in this way not enough
        used as evidence of terms of formal offer but letter has not yet been delivered Thomas Park & Anor August 2009
        Result: missives contain trust clause
        sender deliver hard copy if and when required. Requirements of Writing (Scotland) Act 1995 s1(2)
Role of missives in purchase sale, use of suspensive conditions & warranties
1. Parties
  1. Missives create a bindng contract and on conclusion create a bilateral obligationand express consensus in idem
    1. Haldane v Watson
2. Property
  1. missives expressly state parties intentions, and extent of heritable land to be conveyed
    1. Dispostion should match missives, if don't could be neglience/solicitor or claim for unjustified enrichment, McSorley v Drennan
3. Price
  1. price apportioned between heritable and moveable determined by rules of accession
    1. Heritable primarliy land & everything affixed or growing from - Christie v Smiths Exr
      1. Moveable includes corporeal and incorporeal with no direct connection to land Edinburgh & Leith Gas Comrs v Smart
4. Suspensive Conditions - creates an obligation subject to condition being purified: subject to acceptable offer of finance etc
  1. Purchaser almost certainly providedpenal in missives entitlement to resile without penalty if not granted in timescale
    1. Purchaser in breach of contract, possibly material breach, if failed to obtain permissions timeously. Khazaka v Drysdale
      1. Purchaser must act reasonably not seek to resile that he dissatisfied for another reason other than suspensive condition
        Gordon District Council v wimpey Homes Holding Ltd
        Purchaser obliged reasonableness before rescinding depends on circumstances
        HELD: purchaser under a duty to obtain report which justified termination before competentlyy doing so
        McKay v Leigh Estates (Scotland) Ltd
        Johnv Wyllie v Ryan Industrial Fuels Ltd - view that each party intended that the other would act reasonably
5. WARRANDICE
  1. Sale/purchase 3 stages
    1. 1) completion of contract
      1. 2) Delivery of conveyanceto purchaser against payment when he takes possession
        3) Registration of the conveyance in specified time Burnetts Trs v Burnett
    2. PURCHASER
    3. seller
      1. give good and marketable title, possesson & clear search
        seller unfulfils, the purchasers remedy is rescission - Whyte v Lee
        thereafter raises an action for damages
        Purchaser fails to pay agreed price on date, breach of missives
        seller - decree for payment
        as only positive obligation: AMA (Newton) Limited v Anthony Finlay
        possible for contract to continue
        seller seeks action for implement - Carter v Lornie
        Irrespective of completion but late, seller can seek damages
        can also seek interest under common law and contract
6. WARRANTIES
  1. contained throughout the missives
    1. both heritable/moveable free of finance
      1. not subject to litigation
        and are free from defects
property conveyance is a personal guarantee between the parties
seller can only sell if he has good and marketable title
1. free of any inhibitions
purchaser agrees to pay price on set date
1. Disposition is registered in Land register Land Registration (Scotland) Act 1979
  1. once issued guarantees title but can be challenged in limited circumstances

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	Created by mary1503 over 11 years ago