Buying a home is exciting, and most settlements go smoothly. Occasionally something isn’t quite right once you move in. Perhaps a light won’t switch on, the heating feels weak, or an unexpected item has been left behind. 

This sheet explains what the contract says, what steps you can take, what our role as your conveyancing solicitor is and where our role ends.

The Practical Position Versus the Legal Position

There is a difference between believing that you have a legal right and enforcing that right. If you intimate a claim and the Seller’s solicitor, or the Seller, replies to say that they have “no proposals to make”, your remedy is to raise formal legal proceedings. 

MOV8 will notify the Seller’s solicitor of any such claim, in line with our Terms of Business. However, we are not court lawyers and cannot engage in any further action for you beyond that point.

Any solicitor you instruct to raise a claim will charge fees for that work. This can make it uneconomical to raise such proceedings.

Key Contract Protections

Your purchase contract included the Scottish Standard Clauses (Edition 6, 2024). The Law Society of Scotland has produced a very helpful guide to the Scottish Standard Clauses (Edition 6, 2024) which can be found here. Below are the most relevant provisions relating to post-settlement issues.

Good Working Order of Systems – Clause 4 of the Standard Clauses

All systems (heating, plumbing, electrics, appliances) must be in proper working order, commensurate with age as at the Date of Settlement, at the Date of Entry unless specifically excluded. The working order of appliances is not warranted by Sellers.

The Seller will only be responsible for carrying out any necessary repairs to put any

such system into such order and shall have no liability for any element of upgrading (except

to the extent such upgrading is required to put any such system into such order).

The lack of any regular service or maintenance of any system or the fact that it may

no longer comply with current installation regulations will not, of itself, be deemed to be a

defect.

The Purchaser will be entitled to execute any necessary repairs at the expense of the

Seller without reference to the Seller (i) in the event of an emergency; (ii) in the event that

the Seller’s agents (i.e. a tradesperson, instructed by the Seller) do not inspect the alleged defects within 5 working days of intimation; or (iii) in the event that any necessary repairs are not carried out within 5 working days of Inspection.

General Condition/Hidden Defects

Clause 2 of the Standard Clauses asks the Seller to state that, as far as they are aware (having made no enquiry or investigation), the property is not affected by (1) any notices of payment of improvement grant; (2) flooding from a river or watercourse in the past 5 years; (3) other than disclosed in the home report, damp, dry rot, structural defects or infestation by insect of animal; and (4) Japanese Knotweed.  

Clause 20 of the Standard Clauses states that the Seller will maintain the Property in its present condition (ie as at the date of the Offer), fair wear and tear excepted, until the time at which settlement takes place.

Timescales

The Seller will make good any defect which prevents any system (heating, plumbing, electrics, appliances) being in proper working order, commensurate with age as at the Date of Settlement, provided said defect is intimated in writing within 5 working days of settlement.

The Missives will cease to be enforceable after a period of 2 years from the Date of

Settlement except insofar as (i) they are founded upon in any court proceedings which have

commenced within the said period or (ii) this provision is excluded in terms of any other

condition of the Missives.

Minimum Claim Value

The total value of any claim(s) by a Purchaser must amount to £500 or more in order to be a potentially valid claim against the Seller. In addition, any matters disclosed to and accepted by the Purchaser, prior to settlement, cannot form the basis of a claim.

Next Steps and Limitations

• Evidence is key – keep photos, videos, and professional reports. Obtaining a quote from more than one tradesperson in relation to the issue is also a good idea, as advice and quotes provided by tradespeople can vary significantly.
  
• MOV8’s role – we can send the required intimation letter(s) but do not handle court proceedings. Your conveyancing fee includes the cost of intimating the claim but does not include the cost of any further correspondence with you or the other party’s solicitor. Where we are acting for Sellers, the fee for the sale transaction includes passing on any intimation of a claim, which we receive, but does not include any further correspondence. Additional fees may/will be payable for any additional correspondence, over and above dealing with the intimation.
  
• Litigation – if the seller disputes liability and the defect costs £500 or more to fix, you would need to instruct a litigation solicitor before the two-year period expires.

Key Takeaway

Test all systems immediately and let us know within 5 working days if something isn’t working. For any other significant hidden defect, remember that the contract gives you up to two years from your Date of Entry to raise a formal claim but that the cost of raising this claim will often make it impractical to do so.

This Fact Sheet is for general information only and does not constitute legal advice.
Always seek specific advice from a litigation solicitor if you intend to pursue a claim.