Property Law

The Scots law of heritable property is complex and has been formed over centuries by a mix of common law, precedent and legislation. It is largely bound up with questions of conveyancing and what follows is a very brief summation.

The cardinal feature of Scots conveyancing is the system of registration of titles to heritage. In 1617 there was instituted the Register of Sasines. This and its new successor the Land Register of Scotland are open to the public; and for the purpose of ascertaining the ownership of land and the burdens which have been imposed on it recourse must be had to either the Register of Sasines or to the Land Register.

A person who enters into a contract to purchase land has a right as against the seller to have the bargain implemented and may sue him for damages if he fails to implement it but he is not in fact the owner until the conveyance to him has been placed on the Register.

A person who appears on the Register as the owner of land is said to be infeft. The purchaser of land is infeft when, and only when, his title is recorded; and the owner of a security over land, by registering the deed showing the existence of the security in the register, acquires a charge on the land effectual against all who may have rights of property in it.

Constitution of Contract

Contracts for the sale and purchase of land by private bargain may be in the form of an agreement executed by both parties but much more frequently are concluded by missive letters between the parties or their solicitors. Such contracts are obligationes literis and, in order to be enforceable, must be created not only in writing but in writing which is probative or holograph or adopted as holograph.

Contracts by Agents

Missives for the purchase and sale of land in Scotland are frequently entered in to by solicitors or other agents.

Consensus

The acceptance must meet the offer – there must be consensus in idem before the contract is binding. Qualifications on new conditions in an acceptance constitute a counter offer which requires acceptance by the original offer before the bargain is complete. The normal practice in Scotland is for there to be a detailed offer, a detailed qualified acceptance and thereafter two or three further letters passing between the parties' solicitors before a contract is formally concluded and binding.

Negotiations and Sales by Private Bargain – Practice

The procedure in negotiating a sale of heritable property by private bargain depends upon the circumstances of the particular transaction and involves professional and commercial judgement. There can be few absolute rules.