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Navigating between the Scottish and the English property markets often causes problems for the uninitiated. Some of those problems are down to trying to marry up simultaneous transactions in each marketplace - this is always very difficult, if not impossible, to achieve. Some, however, are down to a lack of understanding of the terminology and what its equivalent is, if such a thing exists, in the other market. Let's see if we can help a little with that knowledge gap.

Agreement for lease

Although this is a term used on both sides of the border, it's most common in England - where it means pretty much what you'd expect: it's a contractual obligation on both parties to enter into a lease at some future date. It's used only when there's a specific reason why the parties aren't signing their contract straightaway. They're often very lengthy documents and typically much longer than the eventual contract. This is why it might not surprise you to learn that they're most common in commercial situations where the parties have other ancillary matters to resolve before entering into the lease.

In Scotland, on the other hand, you should only expect to see the term in pretty exceptional circumstances, such as when outstanding development issues remain to be resolved between the parties. In normal circumstances - and in line with the general Scottish "plain language" approach, the phrase is replaced with the more readily understandable "contract to enter into a lease". This simply means an exchange of letters between both parties' legal representatives.

Appurtenant rights

If you've ever scratched your head in puzzlement over the meaning of the phrase "appurtenant rights" you won't necessarily be fresh from the Scottish market. Given that it's not a phrase in everyday use, you could just as easily be used to the English system and, yes, in terms of its use of plain language, the English system does have some way to go to catch up with Scotland. This term refers to any rights or restrictions attached to a property (whether that's a commercial or a residential property). Typically, for a residential property, these might include access rights that allow the occupier to cross a neighbour's land or for drainage pipes to cross that neighbouring land. Interestingly, in Scotland, this is one example where the use of plain language falters a little because the phrase used is "parts, privileges and pertinents" or, in leases, "ancillary rights".

Completion date

The end goal for any English transaction, the completion date is the date on which the final sum outstanding transfers to the seller and legal ownership of the property transfers to the buyer, who then receives the keys. In Scotland, the equivalent is the "Date of Entry", although the term "completion" is sometimes used in commercial transactions. While it's fair to say that both terms are readily widely understood, it's also fair to note that, in England, the completion date is often something of a moveable feast. In Scotland, on the other hand, a would-be buyer usually specifies a proposed date of entry when they make their offer.

Overall, on average, date of entry is hammered out much sooner in Scotland. This obviously provides for more certainty for both parties. Meanwhile, in England, the completion date is only confirmed upon exchange of contracts, which is the point at which, although not strictly speaking legally binding, a contract of sale becomes extremely expensive to get out of. Unfortunately, it's not unknown for both sellers and buyers alike to push back on exchanging contracts and thus on setting a completion date. This can be for a number of reasons, including general inefficiency. It can also be because someone is watching price trends. For example, a seller who thinks sold property prices are rising may delay reaching exchange in the hope of pushing the buyer to increase their offer. This is almost impossible in Scotland due to the stronger safeguards built into the system.

Freehold

In England, around 80% of residential housing stock is freehold. "Freehold" means that the property owner owns the property outright, including the land on which it's built. They're also responsible for all maintenance and upkeep costs. In Scotland, the rough equivalent is "heritable title" although this is usually referred to by the snappier shorthand of "ownership". As in England, it's the most common way to own residential property. Both countries currently also have a system of leasehold ownership.

Missives

This is a classic Scottish term that everyone in Scotland seems to understand but frequently causes puzzlement south of the border. Missives are a series of formal letters exchanged by the legal representatives of a buyer and seller. The missives, which are legally binding, contain all the conditions pertinent to the sale - and, terminology aside, this is what sets them apart from the English system. In England, "negotiated heads of term" are used to negotiate the contract. What's more, as noted above, the contract doesn't become binding until exchange and, thanks to a general quirk of the English legal system, that contract won't even expressly state every condition that applies to the transaction. Instead, some of these conditions will be so-called "standard conditions".

Restrictive covenants

In England, a restrictive covenant governs what an owner or occupier can or cannot do with a property. Not all properties have restrictive covenants attached to them but, where they exist, they are binding legal obligations that pass to successive owners and occupiers. While it's sometimes possible to remove them, this is usually an expensive and time-consuming process with no guarantee of ultimate success. Consequently, depending on the terms of the covenant, some buyers will be put off by a restrictive covenant.

Although rare, the most onerous restrictive covenants may be reflected in the sold property prices of the properties to which they're attached. A similar system exists in Scotland, but the technical term used is "conditions or burdens on title". More colloquially, they're known as "negative real burdens". As in England, a negative real burden usually restricts what someone can do with their property - for example, it may prevent them from running a business there or from keeping certain types of pets.

Confused by this brief gallop through some of the different terms? Fear not: a specialist property solicitor or conveyancer will be able to help.

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