Late conclusion of missives and conveyancing delays

Written by the Property Law Committee

As solicitors who work in residential conveyancing will no doubt be aware, it is not uncommon for missives to be concluded very close to the date of settlement, if not on the same day. 

While there are occasions when a delay in the conclusion of missives is unavoidable, there are many situations where an earlier conclusion would be possible, which would aid a smooth settlement and reduce stress for both solicitors and their clients. 

The Law Society of Scotland has Guidance on the Avoidance of Delay in Concluding Missives which can be found on the Law Society’s website here.  In accordance with the Guidance, solicitors acting for both seller and buyer “have a professional duty to conclude Missives without undue delay”.  If there is to be a delay, the reason for the delay should be disclosed to the other party, with their client’s instructions. 

The Property Law Committee is aware that residential missives often remain open up until very shortly before the date of entry.  Sometimes, the reasons for the delay are unclear or not properly made known to the other parties involved.  There are also instances where large chains of transactions have been subject to completely preventable delays, caused by relatively routine issues not being spotted early on in the transaction.  In such instances, the reason for these delays was that the usual due diligence and title examination relating to one of the transactions in the chain had apparently not been attended to until shortly before settlement.  The result of this is that minor issues, which could have been resolved well before the date of entry had the due diligence/title examination been carried out earlier, caused delays to not only that transaction but potentially several transactions in the chain. 

Delays can be an unavoidable and regrettable feature of the conveyancing process. Conveyancing is complex – often underestimated by those not involved in it – and involves many moving parts and multiple different parties including solicitors, but also estate agents, surveyors, mortgage advisers, lenders, and removers, amongst others. There are myriad reasons for delays to transactions, with many being related to lending and other funding, but regardless of the cause, these delays do cause considerable stress to clients, and also to the solicitors involved. As solicitors, we may not be able to control or prevent many delays, but we must do our part to ensure that we do not add to or exacerbate these delays, or even cause them ourselves.  In particular, where avoidable delays happen due to late attention to the conveyancing, this causes stress to solicitors and their clients but also leaves a solicitor potentially liable for complaints from their own client and as well as from third parties.  If more than one transaction in the chain has been affected by delays within one specific transaction, then it is possible that more than one third-party complaint could be made.   

What can be done to avoid or manage delays?

Be organised.  Check the Home Report for alterations and other matters which may require attention as soon as possible.  This way you can identify if copy consents or other documents need to be ordered/requested and reduce the risk of delays.  It is also advisable to have a look at the Titles to determine if there are any irregularities or old securities to be discharged. 

Determining the KYC, AML and lending position as early as possible should also assist in reducing unnecessary delays.  If, for example, the client is receiving a gifted deposit or is part of a help to buy scheme or if funds are coming from abroad, matters can take longer to be checked.  The earlier this is known, and the appropriate information requested and checked, the less likely there are to be delays.

While not all of the information will be available from the outset, it is likely that by addressing issues with the information available to you, many delays could be avoided and you would also reduce the likelihood of criticism.

Effective communication with your client is important and it is as important to communicate effectively with the solicitors acting on the other side of transaction.  For example, if there are to be different members of staff looking after the file at various stages of the process then it would help matters progress smoothly if it is made clear to the solicitor acting on the other side with whom they should be corresponding, where possible. 

It is also useful to take your clients’ instructions with a view to setting realistic dates of entry and make sure that the selling/buying position is made clear at the offer stage, so that all parties have an understanding of the situation and likely timescales. An Offer (or Qualified Acceptance) should set out clearly all suspensive conditions so that other parties know exactly what needs to happen in order for missives to progress.  Practically speaking, it’s better, where possible, not to have to rush within a very short time frame and risk the date of entry having to be moved, which is not likely to be well received by the parties involved.  If a realistic date is able to be agreed, then this is likely to allow for better organisation and an easier transaction for all parties.

If there is a reason why missives cannot be concluded, for example, waiting for certain documents to be available, then it can be a good idea to prepare missives in draft form.  This allows matters to be agreed as far as possible in advance and when the reason for the delay is resolved, a formal letter can be issued with a clean acceptance to follow.  This prevents the need for further formal letters to be sent back and forth and no additional or unexpected amendments being sought at the last minute. 

Delays can be unavoidable and indeed in many cases solicitors have to work very hard to help their clients to settle on the anticipated date where it may not have been possible but for the skill, expertise and diligence of their solicitor.  However, there are occasions where delays can be avoided and solicitors are encouraged to consider what measures could be taken to avoid unnecessary delays to the benefit of their clients, other solicitors and also themselves.

Written by the Property Law Committee