Caveat Emptor: the Latin phrase you need to know about. My rights as a Purchaser Part 1

Buying a new property is always an exciting time; whether you are a first time buyer, moving into a bigger place due to an expansion in the family or downsizing because the birds have flown the nest. However, what happens when you move in and there is an issue?

What do the Missives provide me with?
You will undoubtedly have multiple conversations with your solicitor about Missives, but what are Missives and what do they provide you with? Missives are a series of Formal Letters between solicitors that form the purchase contract, and are based on an agreed and reasonable form of contractual clauses called the Scottish Standard Clauses . Under the terms of the Scottish Standard Clauses you have a period of five working days from when you move in to your new home to intimate any defects to your solicitor. However, before you start making a long list of “niggles” with the property, you should take into account your rights and the seller’s responsibilities.

The contract states that “any systems or appliances of a working nature (including central heating, water, drainage, electric and gas) forming part of the Property or included in the Price will be in working order commensurate with age as at the Date of Settlement”. This means that if the heating system is 15 years old and working, but it makes a loud noise when it has been on for a few hours, you are not covered in terms of the contract as this would be considered reasonable for a boiler of this age.

My boiler is not working, help!
Now that we have entered November and winter is well and truly upon us; if the boiler is broken and you have no heating and/or hot water or if you have any safety concerns, then this would be deemed as an emergency. In these circumstances, you have the right to instruct your own tradesman to inspect the boiler and have any repairs carried out without speaking to the Seller first. This is also the case if the five working days have passed since the intimation and the Seller has not instructed a tradesman to inspect the property.

If the issue is not urgent, your conveyancer will intimate the defect to the Seller’s solicitor and they will then have five working days to issue a response.

So what can I claim for?
The Scottish Standard Clauses has a limit on any claim to avoid smaller defects being intimated. For a claim to be valid, it must have an aggregate value of £300.00 or more, meaning that if the oven light is not switching on, chances are it will not be considered a valid claim.

Similarly, any bumps on the wall or marks on the doors would not be covered, as the Missives provide for ‘fair wear and tear’. You are purchasing a house that people have (or are currently) living in and things can happen. If there is a new hole in the ceiling however, this is a different matter. You would also not be covered for issues that have been flagged up by the surveyor in the Home Report, however we will cover the Home Report in more depth in Part 2.

So what does Caveat Emptor mean?
Or to the non-Latin speaker, buyer beware! This is the underlying principle used and does ultimately benefit the Seller. So if you do have a valid claim the Seller may rely on this to bat off any issues. Sellers may also advise that the issues that you are experiencing were in situ when you viewed the property and unless you have evidence to the contrary, it can become a ‘he said she said’ type argument. This is especially the case for things such as missing keys, doors sticking etc. You do have the right to raise a small claims action and we will discuss this in Part 3 of this series.

MMi Golden Rule
When viewing a house, take the time to ask questions and make sure you are happy with what you are buying. While you cannot possibly inspect everything, it is important to do your research. When you receive the keys and step in to your new home for the first time, make sure that you turn on the heating and test the appliances, and always ask your conveyancer if you are unsure or in need of advice or check our MMi explains website which explains your rights and responsibilities as both the Buyer and the Seller.


MMiLegal NewsMary Philip