Drafting suspensive conditions in missives in Scotland
Produced in partnership with Emma Gray of Blackadders
Drafting suspensive conditions in missives in Scotland

The following Property guidance note Produced in partnership with Emma Gray of Blackadders provides comprehensive and up to date legal information covering:

  • Drafting suspensive conditions in missives in Scotland
  • What is a suspensive condition?
  • Universal drafting considerations
  • Survey/Site investigations
  • Finance
  • Planning
  • Title
  • Community right to buy
  • Completion of work by seller
  • Licence

What is a suspensive condition?

A suspensive condition suspends the obligation on either party to a contract to perform that contract until such time as the suspensive condition had been purified (or waived, if that is permitted by the terms of the condition). See Practice Note: Suspensive conditions in missives transferring Scottish property. It is imperative that a suspensive condition is well-drafted. Careless drafting can have unintended and often undesired consequences. For further information, see: Suspensive conditions in missives: Stair Memorial Encyclopaedia [27].

Matters which may be covered by suspensive conditions

With the exception of dealing with title matters, the majority of suspensive conditions will relate to non- conveyancing matters, eg:

  1. compliance with the relevant tax regime

  2. planning issues

  3. transfer of employees

  4. compliance with environmental law

This Practice Note sets out universal considerations in drafting suspensive conditions of any kind then considers specific points when drafting specific commonly used suspensive conditions. See the Property Standardisation Group (PSG) PSG offer to sell—Investment and the Scottish Standard Clauses for examples of suspensive conditions commonly used in commercial and residential contracts respectively.

Universal drafting considerations

Who is to benefit from the suspensive condition?

The condition should state clearly which party is to benefit from the suspensive condition, otherwise the condition could operate to the detriment of the party who had introduced the condition