Missives concluded - does that mean I’ve sold my house

The legal aspects of buying and selling a house start off with an exchange of letters between the buyer’s solicitor and the seller’s solicitor. These are usually made up of an Offer, a Qualified (conditional) Acceptance and a Final Acceptance. Or, in some cases a number of Qualified Acceptances issued sequentially by each side until a Final Acceptance is issued. This exchange of letters is referred to as the Missives.

This is the process that leads to the creation of a contract to buy and sell a house. The aim is to reach conclusion of missives in order that a binding contract for purchase and sale exists between the buyer and the seller.

However, even though missives are concluded, there can be circumstances where either party can withdraw from the deal without there being any penalties.

The Missives contain conditions which have to be fulfilled during the course of the conveyancing process. Some of these conditions are called “suspensive conditions” and conditions of this nature may allow either party to withdraw from the contract without penalty.

A common type of suspensive condition inserted by a buyer in the offer is that the purchase is subject to the buyer receiving satisfactory mortgage finance. If an offer containing such a condition is left in the missives unchanged, it means that even though missives have been concluded, if the buyer fails to secure satisfactory mortgage finance, they can withdraw from the purchase without penalty.

Another suspensive condition might be that the offer is subject to the buyer selling their own house. Again, should such a condition be left in the missives, should the buyer be unsuccessful in selling their house, they could then withdraw from the purchase without penalty.

Accepting such conditions is a matter for the seller.. We can understand why a condition of the purchase being subject to a mortgage is put into an offer – we may well insert such a condition in an offer we are submitting for the seller for their new house! The reason for this is that mortgage lenders tend to take some time before finalising their financial checks and issuing their offer of loan. The current practice is not to send their offer of loan until very close to the date of entry and this tends to mean that missives are not concluded until then. Clearly that is not very satisfactory if the seller is buying a new house and is reliant on the proceeds of their sale. Unfortunately, we are seeing more and more transactions where conclusion of missives is delayed until the mortgage lender issues the offer of loan.

Obviously, the sooner missives are concluded, the greater the certainty that you have a contract to sell your house. We advise clients about the conditions in the missives every day and seek to reach conclusion of missives with few, if any, suspensive conditions as quickly as we possibly can for our clients. We sometimes advise a swift conclusion of missives, leaving the suspensive conditions in place. It all depends on the circumstances.

If you have any questions about the residential sale or purchase process, please get in touch with us.