Neilsons Solicitors and Estate Agents – General Terms of Business
Our Terms of Business set out the terms governing the firm/client relationship. This is mandatory as a Law Society of Scotland regulated firm.
We have layered our General Terms of Business below so that you can easily navigate to relevant sections as appropriate however all clients are advised to read the Terms of Business in full as our Terms form the contract between the client and the firm and accordingly is very important.
The Firm of Neilsons Solicitors is a partnership, authorised and regulated by The Law Society of Scotland. We are also authorised to conduct investment business by The Financial Services Authority. We are registered with the Information Commissioner’s Office (ICO).
Our head office is at 138 St Johns Road, Edinburgh, EH12 8AY. Our Head Office contact number is 0131 316 4444 and our main email address for general correspondence is email@example.com. Our website is www.neilsons.co.uk.
The Partners of the Firm are: Steve Spence, David John Douglas Marshall and Marjorie Townsend.
Neilsons abide by the professional practice standards set forth in the Law Society of Scotland’s Standards of Conduct Practice Rules, which may be inspected by accessing the Law Society of Scotland’s website – www.lawscot.org.uk.
We will act strictly in accordance with your instructions – either written or verbal.
When we are acting on behalf of a couple, particularly in a purchase or sale transaction, then unless you advise us to the contrary or unless it is clearly inappropriate in the circumstances, we will proceed on the basis that instructions from one party have the implied approval of the other. If that arrangement is not acceptable to you, you are asked to make that clear in writing at the earliest possible stage.
If we are given instructions by a limited company then unless otherwise agreed with you in advance, it is a condition of our accepting those instructions that we may accept instructions from one of the Directors and that all Directors are jointly and severally liable along with the company for payment of our fees and outlays and any interest thereon. It is a further condition of our accepting instructions that you agree to our instructing a company search to demonstrate that the company is in existence and that the statutory requirements of the company have been complied with. The expense of such a search will be payable by you.
You will also be required to produce to us on request a copy of the Memorandum and Articles of Association of the company.
You are required to:
a. Give instructions and information timeously when requested
b. Give us instructions and information either by email, telephone or fax
c. Be available to sign legal documents so that we can process your transaction
d. Remain in regular contact, particularly if critical dates are to be met e.g. dates of entry
e. Keep your Solicitor advised of any change of contact details, e.g. address, email address or telephone number.
f. Comply with our compliance procedure as part of the Proceeds of Crime Act (2002), the Terrorism Act (2000) and the Anti-Money Laundering (2017) regulations we are bound by.
The Scottish system of conveyancing is based on a Contract constituted by missives. The expression “missives” means the letters which pass between purchasing and selling solicitors containing the technical Contract Clauses. The English system of “subject to contract” does not apply in Scotland. In almost every case (except where a client of Neilsons contracts with another client of Neilsons), the missives are signed by the solicitor acting on behalf of the seller and the solicitor acting on behalf of the purchaser, on the verbal instructions of the client. You will therefore be tied in to the Contract by ourselves as your solicitors acting on your verbal instructions without you signing any contract documentation yourself.
Most Solicitors in Scotland, including this Firm, have agreed to proceed with missives based on the “Standard Clauses” procedure. This is an agreed list of Contract Clauses which are standard to all sale and purchase transactions so that only those Clauses unique to your transaction, such as the price, date of entry, items included in the sale and alterations documentation, are adjusted. This leads to much more rapid adjustment of the missives and a consequence of this is that parties are usually tied in to the Contract at a much earlier stage than was the case in previous years. You should therefore never instruct us to submit an Offer for a purchase or accept an Offer for the sale unless you are prepared to be tied into the Contract.
When all the points in the Contract are agreed between purchasing and selling solicitors we reach a point known as “conclusion of missives”. This creates a Contract which is binding on both purchaser and seller. This creates an obligation on the purchaser to pay the purchase price on the date of entry. If there is a problem with funding, such as obtaining a mortgage at the required level or with the sale of the purchaser’s property, the purchaser becomes in breach of Contract. It is difficult, if not impossible, to obtain bridging in that situation and the Contract provides that if the purchaser becomes in breach of Contract the seller can charge interest typically at 4% over base rate until either the purchaser resolves the difficulties and pays the purchase price, with interest, or until the seller receives the purchase price on a second re-sale of the property. The Contract provides that after fourteen days if the purchase price is still not paid the seller can place the property back on the market for sale and sell it for the best purchase price that can reasonably be obtained and recover any shortfall on price, plus marketing and resale legal expenses, up until the date the new purchaser pays the price, or interest (but not both) from the original purchaser.
It is therefore essential that prior to submitting an Offer you are confident that your mortgage has been agreed in principle, that you have disclosed any relevant circumstances which may prejudice your ability to obtain a mortgage to whoever is arranging your mortgage and that you are confident that your sale transaction will proceed.
We provide you with an illustration of the anticipated fees and outlays at the outset of the transaction. Fees for estate agency transactions are generally assessed as a percentage of the sale price achieved and for this reason the actual fee charged may therefore be higher or lower than the fee originally quoted depending on sale price achieved.
The fees for conveyancing are based on the transaction proceeding as a standard conveyancing transaction with no unforeseen difficulties. Sometimes during the course of a conveyancing transaction complications can arise which can create considerable additional work which could not be contemplated at the time the original quotation was provided. In those circumstances you will be notified of the fact that a complication has arisen which requires additional work on our part which will necessitate in the increase of fees to be charged. Examples of conveyancing complications with associated and anticipated increases in fees are as follows, (these fees may be higher or lower depending on the amount of time spent in resolving the difficulty, the complexity of the work and experience and skills required to resolve the problem):-
1. Organising Indemnity policy: £45 plus vat;
2. Administering Statutory Notices identified: £50.00 plus VAT per notice ;
3. Alterations – Co-ordinating Window Inspection (clear) £45.00 plus VAT;
Co-ordinating Window Inspection (failed) £65.00 plus VAT;
4. Obtaining missing building warrant documentation from Council Archives: £65.00 plus VAT;
5. Co-ordinating Damp and Timber Specialist: £45.00 plus VAT;
6. Organising Roofing Contractor: £45.00 plus VAT;
7. Organising Electrical or gas Compliance Certificate: £45.00 plus VAT;
8. Organising Council or Building Consultant Inspection (clear): £45.00 plus VAT;
Organising Council or Building Consultant Inspection (failed): £75.00 plus VAT; and
10. Dealing with Council Tax Mandates: £65.00 plus VAT.
11. Dealing with Discharge of Inhibition: £150 plus VAT.
12. Adjusting or replacing a lost or damaged for sale board: £10 plus VAT.
13. Conducting anti money laundering checks in excess of one hour: £50 plust VAT per hour.
14. LMS Portal Administration Charge for the following lenders: £12 including VAT. Atom Bank, HSBC, Leeds Building Society, NatWest, Newcastle Building Society, Royal Bank of Scotland, Tesco Bank, TSB Bank, Virgin Money.
Shortly before the date of entry you will receive an updated financial summary showing the final figures involved in the transaction. If this shows that funds are required from your own resources these must be paid to us at least four working days before the date of entry if you intend to pay by cheque or the day before the date of entry if you propose to pay by direct bank transfer.
The fee which we charge will cover work up to completion of the sale or purchase and normal routine conveyancing work thereafter, such as delivery of the title deeds to a lender.
If additional work becomes necessary after the date of entry, for example if the central heating system is faulty and a claim is made in this connection we will, of course, normally charge separately for that according to the amount of work involved. As a matter of goodwill we generally do not charge for the first two letters in relation to such complaints. Thereafter we will charge at an hourly rate of £175 per hour plus vat.
Invoices for fees and outlays in relation to conveyancing transactions which proceed to settlement are payable on the date of entry. We will deduct all fees and outlays from funds in our possession and account to you for the balance. It should be noted that in a Scottish conveyancing transaction the purchase price is paid by cheque. We therefore cannot account to you or re-pay your mortgage until the cheque clears with us, normally four working days after the date of entry. As soon as the cheque clears we will account to you and re-pay the mortgage using the cleared funds which are then available to us.
Except where otherwise agreed in advance, where outlays are incurred during the course of the transaction we will require payment of them within seven days of receipt by you of the request.
In estate agency and conveyancing transactions, the fees are normally paid at the end of the transaction. In other cases you may be required to pay fees as the transaction progresses and in such cases interim accounts will be issued.
Where we act for you in an estate agency only capacity, for example where you wish to use our expertise in the marketing of the property but wish to instruct a local or family solicitor to undertake the conveyancing, by instructing us in relation to the marketing of the property you are also deemed to instruct the conveyancing solicitor to pay our fees and outlays relative to the estate agency from the net free proceeds of sale of the property.
If you take up our “no upfront outlays promotional offer” if it is offered as a promotion then you will be required to pay all upfront outlays due six months after your marketing commences.
If you instruct us to act in the marketing of your property and if the property does not sell or your circumstances change and you elect to withdraw the property from the market, you will be liable to pay a marketing fee of £250.00 plus VAT plus any unpaid outlays we have incurred on your behalf such as the ESPC registration fee, advertising costs, Home Report costs and any other charges incurred, within seven days of your instruction to withdraw the property from the market.
ARTL means Automated Registration of Title to Land and this refers to a new procedure which has been introduced by the Registers of Scotland for registering title. A limited number of conveyancing transactions are eligible for processing under the ARTL procedure. Under the ARTL system title is transferred from the seller to the purchaser and the mortgage from the purchaser to the mortgage lender is created electronically by the solicitor acting on behalf of the solicitor with the co-operation of the seller’s solicitor.
The purchaser and seller’s solicitor perform these functions under a Mandate or written instruction from the clients. In those transactions the seller will sell the property without signing the normal document of transfer known as a Disposition and the purchaser will purchase the property and grant a mortgage over the property without signing the normal mortgage document to the mortgage lender, although the terms of the mortgage deed will be binding on the purchaser. As the registration costs for an ARTL transaction are lower than under a standard transaction, unless you notify us to the contrary in writing we will assume that where it is technically possible to do so, where circumstances permit and it is expedient to do so, you will prefer us to conduct the transaction on the ARTL basis rather than the conventional basis. We must reiterate, however, that only a limited number of transactions are eligible for progressing under the ARTL system.
We are required by law to commission a Home Report for properties which are placed on the market for sale. We engage the services of a Chartered Surveyor to provide the Survey Report and the Energy Performance Certificate and we will discuss with you the completion of the Property Questionnaire which provides practical information to prospective purchasers.
Credit facilities or no upfront outlays promotions are sometimes available (subject to status) to assist with the upfront costs of the Home Report and other marketing costs, such as the ESPC registration fee and other outlays.
When we are dealing with a Home Report for a purchase transaction please note that the scope of our investigation of the Report will be restricted to the section headed “Matters for a Solicitor or Conveyancer” and we will not investigate matters in relation to the condition of the property or other aspects of the Report unless you specifically request us to do so.
When we act for two or more people purchasing a property together we will draw up the title on the basis that title will be held in equal shares unless we receive specific instructions to draw up the title in different shares to reflect either an unequal contribution of sums to the purchase or the terms of the Agreement of all purchasers. If one party is contributing more than the other party you are strongly recommended to instruct us to prepare a Co-Purchase Agreement which is designed to protect the investment of both parties. The cost of the Co-Purchase Agreement is £160.00 plus VAT and unless you instruct us to prepare a Co-Purchase Agreement or draw the title in different proportions then the title will be drawn in such a way that when the property is ultimately sold the proceeds of sale will be divided equally between the parties.
When the title is drawn up between two people the title can be worded either with or without a survivorship destination. If the title contains a survivorship destination it constitutes an agreement between the parties that if one party dies the property automatically transfers to the survivor. If there is no survivorship destination then on the death of one party the share of the pre-deceased owner goes into the estate of the deceased. If there is no survivorship destination written in to the title, in the case of an unmarried couple where no Will has been left, the share of the pre-deceased party will, in most cases, not pass to the surviving party.
In previous years it has been extremely common for survivorship destinations to be included in titles for the sake of simplicity. Survivorship provisions in title deeds can however lead to complications in taxation planning and also practical anomalies so it is more common now to recommend that the question of survivorship is governed not by the title but by a separate Will.
You are strongly recommended to make a will and a Will can be prepared for you on request at an additional charge.
Accordingly, unless you instruct us to the contrary in writing, we will draw the title for a joint purchase without a survivorship destination, that is to say if one party dies before the other, the pre-deceased party’s share will not transfer to the other unless a separate Will is prepared.
If you wish us to proceed with a survivorship destination or wish us to prepare a will, you must inform us of this instruction, in writing, as soon as possible.
Buildings insurance must be in place as at the date of entry (or in the case of a purchase from the local authority, as at the date of conclusion of missives). Unless you specifically request us to do so we will not arrange Buildings Insurance. The property must be insured to the full reinstatement value in the Valuation Report by the date of entry. Failure to adhere to this procedure is a very common reason for a delay in obtaining mortgage funds.
To meet our statutory requirements under the Proceeds of Crime Act (2002), the Terrorism Act (2000) the Anti-Money Laundering Regulations (2017), we are required to confirm our client’s identity and that of directors, partners, trustees, controllers of companies or firms and all of the connected shareholders. This will involve passing certain personal details (i.e. name, address and date of birth) to an external organisation (Amiqus – a Law Society of Scotland endorsed organisation) specialising in identity verification. Amiqus will use the personal details provided for the purposes of verifying identity only and will retain such information in order to show that a search of identity has been undertaken on the Firm’s behalf. The undertaking of such a search will not affect the credit history of the individual searched against and the external organisation will not use the personal details provided for any other purpose.
For all transactions we require to have on file evidence of who you are (a valid, in-date photographic passport or driving licence and where you live (according to Law Society of Scotland regulations this must be a utility bill, Council Tax Demand, mortgage or bank statement in the name of the client(s) dated within the last three months). Please note a driving licence is not acceptable as proof of address as it is not dated within the last three months however it can be used as proof of identity.
When this identity check is processed with Amiqus, it will enable you to submit your documents securely online at the start of your transaction. If you do not wish to do this, you can of course bring the original documents into one of our offices and a member of staff will photocopy your documents, verify who you are and upload them to Amiqus.
If we do not receive satisfactory evidence of your identity, we will not be able to act as your Solicitors.
In addition, if you are purchasing a property, you must confirm the actual source of the funds you are using towards your purchase. You are obliged to provide bank statements showcasing all movements of the source of your funds for a 90-day period. This will also include any movement of funds that have been gifted to you and we may require to run identity checks on anyone who is gifting you funds towards your purchase. We will advise you of this as and when required.
If you fail to provide the necessary documentation, your transaction may be held up as we cannot proceed unless we have this documentation in order as we have to adhere to the laws and regulation.
We also have a duty to report to the National Crime Agency (NCA) if we know or suspect that any funds or assets involved in a matter were made through criminal activity such as money laundering. This legal duty and obligation takes priority over your rights that we keep your data information confidential under UK law.
It is an offence for us as Solicitors to tell someone that a report has been filed to NCA and that they may be investigated. If we make a report to NCA, we cannot carry on with your work without NCA approval and we will not be responsible for the effects of any delay which may occur as a result.
Regarding your compulsory anti-money laundering purchase check, if the time spent on the matter exceeds the reasonable time limit of 1 hour, then you will be charged an additional fee of £50 + VAT per hour. The fees quoted on your budgetplanner take into consideration a reasonable Anti-Money Laundering check of up to one hour, but if we have to invest more time and resource into your compliance check we will discuss this with you and charge you appropriately.
Your compliance documentation will be held securely on the system for as long as required to meet our legal and statutory requirements and thereafter will be securely destroyed. This is in line with the Law Society and ICO guidance.
If you are selling a property it is important that you provide us with copies of any documents of guarantee and documentation relating to alterations. If timber specialist treatment has been carried out for rising damp, woodworm or rot you should provide us with the estimate, plan, specification and guarantee and in the case of alterations you should provide us with the Building Warrant, the Plan with the Local Authority Stamp and the Completion Certificate, (together with Listed Building Consent if appropriate). As these documents relate to the property they will be passed to the purchasers’ solicitors for retention with the title deeds on completion of the transaction. We retain the files for the period of time recommended by the Law Society and this means that we generally keep all files for a minimum period of ten years. We reserve the right to destroy files after that time.
In accordance with the Solicitors Accounts rules, all money we hold for clients in maintained in a separate designated client account. We bank with Clydesdale Bank, however, if you would prefer to have your funds held in a different Bank or other major financial institution or institutions, please notify us by letter at any time and we will endeavour to comply with your request.
Information of a confidential nature concerning you will be kept strictly confidential. However, if we are working on a matter in conjunction with your other advisors we will assume, unless you notify us to the contrary, that we may disclose any such information to and discuss it with such advisors as appropriate in order to provide you with a service. We have a legitimate interest in passing your data in some circumstances on to certain third parties such as Surveyors or the Registers of Scotland in order to ensure your transaction runs smoothly.
The right to reply: In the unlikely event that you consider it necessary to criticise our handling of a transaction on a public forum such as social media, we shall be entitled to assume that you have authorised us to respond to any comments we consider to be unjustified in the same public forum notwithstanding the fact that this may otherwise be regarded as a breach of our duty of confidentiality.
It is hoped, however, that any issues can be resolved privately and not in a public forum.
Sometimes transactions arise which involve parties who are both clients of this firm, or are related. These are called internal transactions. The Law Society of Scotland Guidelines state that there is no objection to the same firm acting on behalf of both purchaser and seller on the following basis:-
1. provided both purchaser and seller are existing clients or are related;
2. provided the same individual solicitor does not act for both parties;
3. provided that both parties are comfortable with the situation;
4. provided that no conflict of interest exists or arises during the course of the transaction.
If a conflict of interest develops during the course of such a transaction then of course we will notify you and you will be recommended to obtain independent legal advice.
Almost any legal transaction whether of a private or business nature can affect the amount of tax or other government duties which you may have to pay in either the short or long term. However, we will not give tax advice unless otherwise agreed in writing. Consequently, unless agreed in writing, we shall not be responsible for any failure to offer tax advice or any incorrect opinion passed on a tax matter. Accordingly, if you wish to obtain a formal opinion on a tax matter then unless we have specifically agreed to provide this ourselves you should seek advice from a specialist tax accountant.
Council tax was introduced in 1993 and each property in the Country was placed in one of eight bands, based on the notional value of the property as at 1st April 1991. Over the years improvements and extensions may have been carried out to the property and this could cause the Council to reassess the Council tax banding of the property, and increase the level of Council tax payable. For reasons that are obvious, we will not make any enquiry of the Council as to whether the Council tax banding is appropriate having regard to any alterations or extensions carried out. It should be noted, however, that the Council will have a record of alterations carried out to the property with planning permission and / or building warrant and although this is not standard practice at the present time, it is possible that the Council may undertake a reassessment of the council tax banding following the sale or at any time in the future, particularly if the work has been extensive and substantially increased the value of the property.
Where you are introduced to us as clients by another firm of Solicitors, we may rebate a proportion of the fee we charge you to that Firm in the form of Agency commission.
If after investigation by the Client Relations Partner you are still not satisfied, you are at liberty to refer the matter to The Scottish Legal Complaints Commission (SLCC) who are the single gateway for all legal complaints in Scotland. Visit the SLCC website: https://www.scottishlegalcomplaints.org.uk/.
The SLCC can be contacted at the following address:
Scottish Legal Complaints Commission
The Stamp Office
10 – 14 Waterloo Place
Phone: 0131 201 2130
Fax: 0131 201 2131
If you are not happy with our response to a complaint made about your personal data, you are also entitled to submit a complaint to the Information Commissioner’s Office (ICO).
Tel: 0303 123 1115.
We expect to continue to act on any matter on which we have accepted instructions until the matter is completed, unless either of us bring those instructions to an end earlier. We will not normally withdraw from acting unless a conflict of interest arises or we consider that it would not be in your best interests for this Firm to continue to represent you, for example if there was a breakdown in the essential element of trust and confidence between us. If instructions are terminated you will only be liable for the payment of our fees to the date of termination of the instructions together with any fees or payments for work necessary in connection with the transfer of the matter to another advisor of your choice. We will be entitled to retain all files, documents and other papers held by us on your behalf until all outstanding fees and outlays have been paid in full.
We will assume that you are happy to receive communication by email, telephone or fax.
We will be happy to accept and act on instructions from you or any duly authorised party by e-mail except bank details. You will be bound legally by any such instructions and will be liable for all fees and outlays which flow from them. Bank details must always be verified over the telephone or in person to avoid the risk of email interception or hacking, see point 25 below.
If your contact details change, you must inform us immediately in writing.
It should be noted that the internet is not a secure environment and may be open to abuse and accordingly we will not be liable to you for any losses suffered by you in any way as a result of our communicating with you or anyone purporting to be you by e-mail.
We must point out to you that there is a very high risk posed by cyber fraud, specifically affecting email accounts and bank account details. Email are always at high risk of interception and hacking. Cyber criminals are in particular known to target e-mails to and from Solicitors’ firms in the UK in a cynical attempt to divert funds to criminal accounts.
Our bank account details are available on request by telephone or in person.
These bank details will never change during the course of a transaction. We suggest that you make a test payment of £1 which our Cash Room Department can confirm has reached our account safely before you transfer large sums of money to us electrically in connection with your transaction.
Neilsons will not accept responsibility or liability if you transfer funds to the wrong account.
If you are in any doubt or if you receive any apparent new bank details from us by email then you should check our account details with us over the phone at one of our registered numbers or in person.
We cannot accept bank details via email. We will only accept notification of a change of your bank details by letter or in person and with additional documentation or confirmation being provided.
We will never treat a client differently because of any characteristics defined in the Equality Act (2010). We are under a duty to make reasonable adjustments for clients with a disability. Should you require us to make our policies or meetings more accessible, notify us and adjustments can be made.
These Terms of Business are of contractual affect and should be read carefully. If you are in any way unsure as to the nature and effect of the Terms of Business please notify us immediately and we will be happy to provide clarification.
Our Terms of Business are under regular review. Last update: April, 2018.