In Parts 1 and 2 of this series we looked at your rights under the Missives if there is an issue with your new home. The Missives give you a right to claim, but what if your issues fall on the deaf ears of the Seller and they do nothing about it?
The standard position in the Missives is that you have two years to raise any court action from the date of entry.
Raising a Court Action
While court action should always be the last resort, if the Seller is unwilling to resolve the issues that you have experienced following settlement, you can raise an action to enforce the contract. There are many factors to take into account before deciding to take such action, and your Conveyancer will provide you advice on whether or not your claim is likely to be successful.
What is the Cost of Court?
The other factor that may influence a purchaser’s decision to raise a court action is cost. If your claim amounts to £3000.00 or less, you can raise a small claims action which is designed to be a simplified and less formal procedure to allow individuals to appear without a solicitor (however you can instruct a solicitor if you wish). Full costs can be found on the Sheriff Court’s website, however, the minimum cost of raising a small claims action will be £78.00.
If the amount of your claim is between £3001.00 and £5000.00 then Summary Cause procedure would be used, and if your claim amounts to over £5000.00 Ordinary Cause procedure will apply. The costs are higher for these procedures as they are more formal and for higher values, and you would need to instruct a solicitor to represent you.
I want to claim, what next?
If after you have considered the costs associated with raising the action, you decide to push ahead with a claim, you should consider if the person has enough money to pay you if you are successful. Even if the claim is found in your favour, if the person cannot pay it may have been for nothing.
Generally court expenses are awarded to the party who succeeds in the claim therefor; the court expenses are paid by the unsuccessful party. Usually there is a limit on any expenses payable, and it may be that you cannot recover all of your expenses from the unsuccessful party. If the claim is between £200.00 and £1500.00, and the case has been defended by the other party, the maximum amount of expenses awarded is £150.00. If the value is between £1500.00 and £3000.00 and the case was defended, the maximum amount is normally 10% of the value of the claim. There are exceptions which can be found on the Sheriff Court’s website however it may be best to have lower expectations on recovering your expenses, as these figures are the maximum.
MMi Golden Rule
When you have an issue with your property, it is best to try to resolve the issue directly with the Seller. When this is not possible, it is important to consider the likelihood of success and balance this with the cost of recovering the money. Your Conveyancer will always provide you with advice in the first instance, and if you decide to raise a claim you can also seek advice from local services such as the Citizens Advice Bureau or In-Court Advisers who are situated in certain Sheriff Courts.