Problems with buying and selling a home

This information applies to Scotland only

What is in this information

Some of the more common problems which people have when buying or selling a house are dealt with here.

See Buying a home, for information on the stages involved in buying a home.

See Selling a home, for information about the stages involved in selling a home.

Consumer protection law

A selling agent might be in breach of the unfair trading regulations if they use certain practices to try to sell the property. Generally, the consumer regulations oblige agents to disclose to prospective buyers what they know about a property and what they should reasonably be expected to know. They should also disclose what they become aware of during the marketing of a property which could affect a buyer's decision.

The regulations contain broad rules outlining when certain practices are unfair. These are:

• misleading actions – for example, mis-describing the main characteristics of a property

• misleading omissions – for example, failing to disclose key information about a property

• aggressive practices – for example, applying undue pressure on a seller to make a decision

• banned practices – for example, claiming to be a member of a professional body when they are not

• lack of professional diligence – for example, not carrying out reasonable checks on the accuracy and truthfulness of information provided.

More about your rights if there has been aggressive selling or you have been misled.

For more information about reporting a problem to Trading Standards, see Report to trading standards.

Solicitors and conveyancers

In Scotland if you are buying or selling a house you must use a solicitor or an independent qualified conveyancer. Their role is to advise you on procedure, carry out your instructions and act in your best interests.

A list of independent qualified conveyancers can be obtained from:

The bill is too high

If you think that the solicitor’s bill is too high, you should not pay the bill but should first check that all the various costs are clearly itemised. You should ask the solicitor to explain anything you do not understand. If you are still not satisfied with the amount of the bill, you may wish to consider taking further action against the solicitor.

For information on how to dispute a solicitor’s bill, see Using a solicitor.

Your instructions are not carried out by the solicitor

The solicitor may fail to carry out your instructions, for example:

• the solicitor fails to make an offer in time and the house is sold to someone else

• the solicitor fails to accept an offer promptly and in writing so the purchaser withdraws

• the solicitor does not include conditions in an offer which the buyer wanted (for example the seller to be responsible for particular repairs).

If you think the solicitor has done something wrong you should contact the solicitor immediately to see if things can be put right.

If you are a buyer or seller and are not satisfied with the solicitor’s response and wish to take the complaint further, you should talk to an adviser.

You are a buyer and think your solicitor has been negligent

You may think that your solicitor has been negligent, for example, after the sale has been completed, you may discover there is a problem with the description of the property you have bought or there is a road widening scheme that will reduce the size of the garden and this might mean that the value of your house would be reduced. If this happens, you should raise the problem with your solicitor. It may involve the selling agent breaching consumer protection law. If you are not satisfied with your solicitor’s conduct you should complain to the Scottish Legal Complaints Commission.

For more about making a complaint about a solicitor, see Using a solicitor.

If you are a buyer and not satisfied with the result of your complaint, you should talk to an adviser.

Selling solicitor or qualified conveyancer fail to provide information that might have affected the buyer's decision to buy the property

A selling agent can be guilty of breaching consumer protection law if vital information about the property is not disclosed to the prospective buyer. The types of omissions are, for example, outside noise from being under a flight path, close proximity to a noisy footpath or disturbances from neighbours that are known about. The selling agent may also be breaching the consumer protection law if any of the facilities in the property are not as they were described.

Surveyors and valuers

The Single Survey

After the 1 December 2008 most houses which are sold will be legally required to have a Home Report which contains a single survey. This survey is available for both the seller and potential buyers. The surveyor who does this survey has a legal responsibility to provide accurate information to both the seller and the buyer.

See Selling a home, for details of the Home Report.

Carrying out the survey and/or valuation

A potential buyer will usually want a valuer and/or surveyor to inspect the property. If you are the seller you will have to allow the valuer/surveyor to look round the property if you want the sale to go ahead.

Problems with the survey and/or valuation

The circumstances in which a surveyor or valuer can be held legally responsible for any financial loss suffered by the buyer as a result of a survey or valuation are limited. If you are the buyer and you think the surveyor or valuer is responsible for any loss, you should talk to an adviser. It may be a breach of consumer protection law.

Using an estate agent

If you use an estate agent to sell your property there will be a contractual agreement between you and the estate agent. If you are the seller and you have a problem with an estate agent you should check the written agreement and establish what verbal agreements, if any, were made.

It is the seller who pays the estate agent's services and the estate agent is therefore acting on behalf of the seller and representing the seller's interests. A buyer who is interested in a house being sold through an estate agent should bear this in mind.

An estate agent may also sometimes act for the buyer, for example by arranging a mortgage for the buyer or by trying to persuade the seller to accept a price offered by a particular buyer. This can lead to a conflict of interest if the estate agent is trying to act for both parties in the same transaction as it may not be clear whose interests the estate agent is representing.

All estate agents must belong to a government approved complaints redress scheme. There are two approved schemes:

• the Property Ombudsman

• the Property Redress Scheme.

If you have a complaint about an estate agent when you buy or sell property which has not been resolved satisfactorily in the first instance by your estate agent, you can complain to the scheme to which the estate agent belongs.

An estate agent that is not a member of an approved redress scheme can be subject to a penalty charge of £1,000 and ultimately may be banned if it does not comply with the requirement to join a redress scheme.

The bill is too high

You may think that the bill from the estate agent, after the sale is completed, is too high. It is important to check that the bill gives a clear breakdown of the costs, for example, the commission fee, advertising, VAT. The bill should then be compared to the original agreement you made with the estate agent.

See Selling a home, for details of estate agents' charges.

If you are the seller and cannot agree the amount of the estate agent's bill you should talk to an adviser.

You decide not to sell

If you are the seller and decide not to continue with the sale of your home, you may have to pay some estate agents’ charges, for example, to cover any costs the estate agent has already incurred. This will depend on the original contract with the estate agent.

If you are the seller and dispute the amount the estate agent is charging, you should talk to an adviser.

You want to use an additional estate agent

If you are the seller and you have been using one estate agent this is known as ‘sole agency’. When a seller agrees a sole agency with an estate agent the contract will usually state that the seller may terminate the contract after a period of notice. At the end of this period the seller is free to use one or more additional estate agents.

If you use one or more additional estate agents before the period of sole agency has come to an end, then the contract with the original estate agent will be broken. This could mean that if the new estate agent finds a buyer for the house you would have to pay commission not only to the new estate agent but also to the agent with whom the sole agency agreement was made. If the original agent found a buyer, the amount of commission that you would have to pay to the new estate agent would depend on the type of agreement you had.

However you may be able to negotiate changing the sole agency agreement to a joint sole agency agreement with the original estate agency.

See Selling a home, for information about different types of agency agreements.

You want to change estate agents

If you are the seller and want to change your estate agent you should check the terms of the agreement you have with the estate agent to see if this is possible. If it is possible you may still have to pay some charges to the estate agent to cover costs, such as advertising, that the estate agent has incurred.

If you are the seller and dispute the amount the estate agent is charging, you should talk to an adviser.

You have found your own buyer

You may have found your own buyer for the property without any help from the estate agent, for example, a friend may want to buy the property. You are entitled to sell to a buyer who has not been found by the estate agent but you may find that you will still have to pay the estate agent. What you will pay will depend on the contract.

You are not satisfied with the service provided

You may not be satisfied with the service the estate agent is providing, for example:

• the estate agent may not be sending out details of your property to potential buyers

• the advertising is not what you wanted

• the details about the house are inaccurate or inadequate.

• the estate agent is discriminating against you.

You may wish to consider complaining to the estate agent in writing or changing to a different estate agent. If your complaint is not dealt with satisfactorily you can complain to the redress scheme to which the estate agent belongs.

For more information about the Property Ombudsman and the Property Redress Scheme, see How to use an ombudsman in Scotland.

If you are the seller and dissatisfied with the estate agent’s response to your complaint, you should talk to an adviser.

You have lost money because of the estate agent

You may think that the house has been sold for less than it could have been because of the behaviour of the estate agent. This might happen because:

• the estate agent has failed to pass on a higher offer

• the estate agent has set the price of the house too low when it was put up for sale without your agreement.

If you are the seller and think you have lost money because of the estate agent, you should talk to an adviser.

Building societies and other lenders

Difficulty in getting a mortgage

You may be having difficulty in getting a mortgage, for example, your salary is not enough or the property is unusual. Different lenders have different rules about giving mortgages and it may be worth trying some other lenders.

It is against the law for a lender to discriminate against you because of your age, race, sex, disability, sexuality or religion. For example, a lender can't refuse to give you a mortgage for one of these reasons, or to give you a mortgage on worse terms than someone else for one of these reasons.

See discrimination.

Delays in getting a mortgage offer

There may be a delay in the lender making a formal mortgage offer to you. Until the mortgage offer is made, it would be unwise to enter into a binding contract. You should contact the lender to find out if there is any reason for the delay, for example, the lender is waiting for salary details from your employer. It may be possible for you to do something about the problem, for example, contacting your employer or providing the lender with pay-slips.

Problems with the buyer

Once a binding contract has been agreed between the two solicitors, the buyer cannot withdraw or vary the terms of the sale without the seller’s agreement. A buyer who does not comply with the terms of the contract can be compelled by the court to complete the contract and can be sued for any costs the seller has as a result. However in practice it may not be possible for the buyer to complete the purchase, for example because of lack of funds. It is usually better for a seller to seek compensation for the costs of finding another buyer than to try to enforce the contract.

If you are the seller and the buyer approaches you to withdraw the offer, you should refer the buyer to your solicitor. You should not agree to anything without first consulting your solicitor.

Problems with the seller

Seller wants to withdraw from the contract

Once a binding contract has been agreed between the two solicitors the seller cannot withdraw or vary the terms without the buyer’s agreement. If the seller does not comply with the terms they can be compelled by the court to complete the sale as agreed and be sued for any costs by the buyer as a result. If the seller wishes to withdraw from the contract the buyer can:

• apply to court for an order to force the seller to complete the contract, if the buyer wants to go ahead with the purchase, or

• negotiate a settlement with the seller to get compensation for costs and inconvenience caused, if the buyer is willing to look for another house.

If you are the buyer and the seller approaches you and wishes to withdraw from the contract, you should refer the seller to your solicitor. You should not agree to anything without first consulting your solicitor.

Seller delays responding to an offer

If the buyer has made an offer for a house, the seller is expected to respond as soon as possible after the closing date. There are several reasons why a seller might want to delay replying to an offer:

• the seller may have received a higher offer which has certain conditions attached to it. The seller may not wish to reject other offers until the highest offer is confirmed

• if the buyer has made an offer before any closing date has been set, then the seller may want to hold on to it so as to bargain for a higher price with other prospective buyers.

If you are the buyer and want to get a quick response you can ask your solicitor to contact the seller’s solicitor and threaten to withdraw the offer. The buyer is entitled to do this at any time.

Problems with the property

The buyer is dissatisfied with the state the property was left in

As the buyer you may be dissatisfied with the state of the property when you move in, for example, it is dirty. There is nothing you can do about this because the seller is under no legal obligation to leave the house in a clean state. However, the seller is usually under an obligation to empty the house of all their furniture and belongings. If the seller has left some belongings in the house you should ask the seller to remove them. If the seller cannot or will not remove the items you will have to arrange to have them moved. Moving the items may cost you money and you could try to recover this from the seller. However, if the seller refuses to cover the costs you could have to take the seller to court to recover the money and this is unlikely to be worthwhile.

Fixtures and fittings have been removed

The seller must usually leave all the fixtures, for example, a fireplace, and any fittings that were agreed as being included in the sale or paid for separately, for example, fitted carpets. If something has been removed from the house you have bought you should check with your solicitor whether or not the item should have been left. The solicitor may be able to resolve the problem. If not, it may be necessary to raise an action against the seller in court.

If you are the buyer and want further advice you should talk to an adviser.

Central heating and other essential appliances

The central heating and other appliances in the property should be working properly when the property is sold. This requirement is part of what are called the 'Scottish standard clauses'. If the central heating or other essential appliances are not working there is normally a clause in the contract for sale that gives a time scale for the seller to fix such equipment. If the seller fails to do so the buyer may have to make a legal claim against the seller.

The seller’s property is worth less than the amount paid for it (negative equity)

You may want to sell your house but find that the value of your house has dropped since you bought it. This may mean that if you sell it at the current value of the property you will still owe money to your lender. This is called ‘negative equity’. If you're in this situation, you will need to get your mortgage lender's permission to sell the property.

There are a number of different schemes which have been designed to help someone with negative equity. For example, it may be possible to transfer the existing mortgage to a new property rather than pay it off and take out a new one. This prevents loss of mortgage interest tax relief between moves. Different lenders will offer different schemes and you should be advised to discuss the situation with your lender.

The property being bought was a repossessed property

The way in which a property was repossessed by a lender is significant following a UK Supreme Court decision on 24 November 2010. The only legal route is by a particular procedure using a calling up notice. If a property you are buying was repossessed you should check with your conveyancing practitioner that it is legally available to buy. This is because if it is not legally free to be bought by you, you may have serious legal problems if you want to sell it at a later date. Your conveyancing practitioner should be aware of this decision.

Damage caused between conclusion of missives and completion

A property may be damaged after missives have concluded but before the sale has completed, for example, a burst pipe or a broken window. The missives usually state that it is the responsibility of the seller to maintain and insure the property until the sale has been completed and the buyer has received the keys to the property. From the completion date, responsibility for insuring and maintaining the property transfers to the buyer.

Newly built or converted property

A newly built property may have problems in the warranty period with either the building or after sales service. The National House Building Council (NHBC) is a trade organisation for house builders but may be able to help a house buyer. Customer services for general enquiries is at 0844 633 1000 (Mon - Fri: 8.30am - 5.30pm) and information is available on theNational House Building Council website.

If you have reserved a new or converted home after 1 April 2010 you may be able to use the Consumer Code for Home Builders to resolve problems. A dispute resolution scheme is incorporated in the code.

Discrimination

Estate agents aren't allowed to discriminate against you for a number of reasons. For example, they can't refuse to show you a certain property because the owner doesn't want to sell to people of a certain religion or belief. If an estate agent discriminates against you, you can complain to the estate agent's company and may be able to make a complaint to an Ombudsman.

For information about taking action if someone has been discriminated against, see the section about Discrimination.