Terms and conditions


Alex Hutcheon + Company
Standard Terms of Engagement

Standard Terms of Engagement applying to all transactions

Good Communications
Our normal hours of work are 8:45 to 5:15 Monday to Thursday and 8.45 to 5:00 on a Friday.

At any one time, there may be several team members working on your transaction. Overall responsibility for the transaction rests with the Partner responsible for issuing the attached letter and whose initials or name will appear thereon, but the day to day progress of the transaction will often be handled by another team member. At the outset of your transaction you will be given our best estimate of the course the transaction will follow.

As your agents, we can only act on the information and instructions you give to us. You can instruct us either verbally or in writing, writing being by handwritten or typed letter or by e-mail, although we may ask you to confirm your instructions in writing or we may write to you confirming our understanding of your instruction. During the course of your transaction contact with the solicitor acting on your behalf may be made by e-mail to the individual solicitor or by telephone on the individual solicitor’s direct dial number or via our main reception on 01224 623423. Individual solicitor’s e-mail addresses can be found on our website www.mortgageandproperty.co.uk. In the event that e-mail communication is used we will not be responsible where e-mails have not been properly transmitted, have been intercepted by unauthorised third parties, have failed to arrive promptly or have failed to arrive at all. In all instances where a response to an e-mail sent by you has not been received it is your responsibility to ensure this e-mail has been received by us. We reserve the right to monitor e-mail traffic passing within our network to ensure security and comply with regulations.

In order that we can provide you with a service to a high standard we will require instructions from you during the course of the transaction and will also require you to answer all relevant queries issued to you. Please supply all answers to queries and further information as quickly and accurately as possible. We may ask on occasions that such information is provided in writing.

You should not assume that we have knowledge of your personal circumstances. If there is any change to your instructions, including for the avoidance of doubt any change in contact details including phone number, you must notify us immediately. If we are acting for two or more individuals together we will accept instructions from either or any one of you unless one of you advises us that we are not to do so.

In acting on behalf of a private limited company we will accept instructions from one of the directors on behalf of the company or any other authorised person. If we are given instructions by a private limited company then unless otherwise agreed in writing with you in advance it is a condition of our accepting these instructions that the directors are jointly and severally liable along with the company for payment of our fees and outlays and any interest thereon.

If, at any stage in the transaction there is anything concerning you about what has happened, what may happen or what has not happened please contact us. In all likelihood we will be in a position to provide you with details immediately, if not we will come back to you with an answer. It will not always be possible to place a timescale on providing an answer if we are waiting to hear from another party or there are other factors. Please do not hesitate to contact us.

Policy on Fees and expenses
It is the Firm’s normal practice to agree a fee basis, including timing and method of payment, for the particular transaction with clients before any work is carried out on the transaction. If a Fee Estimate for the current transaction is attached to this agreement, the fees shown are based on our best estimate of the work involved in completing the current transaction.

Except in so far as specified below our fee will be arrived at by totalling the amount of time we spend dealing with your transaction plus, where appropriate, a Risk and Responsibility factor. Our fees are subject to VAT at the prevailing rate. The hourly charge out rate for each of our personnel is currently as follows:

Each Partner of Alex Hutcheon + Company £300 + VAT per hour
Associate £240 + VAT per hour
Other qualified Solicitors £220 + VAT per hour
All other Legal Personnel £170 + VAT per hour

These hourly rates are reviewed annually in January of each year. The amount of the increase will be available on our web site.

You are liable for expenses normally and properly incurred in a transaction of this type. By acceptance hereof you give your consent for us to incur and settle these expenses. Final expenses payable by you may differ from any pre quoted/estimated expenses due to any changes in costs incurred when using/ instructing third party products.

Sometimes we may need to employ non – Alex Hutcheon + Company personnel to do work on your behalf, e.g. surveyors, accountants, other solicitors or anyone who has the necessary skills required to progress matters. If this is required you will be liable to settle their fees and expenses and you hereby authorise us to settle their fees and expenses from any funds we hold on your behalf. We shall be entitled to request settlement of any outlays incurred by us on your behalf on a monthly basis.

Referrals to Third Parties/Data Protection
As part of the conveyancing formalities for your transaction it may be necessary for you to obtain financial advice in respect of mortgages, insurances, etc… Our firm are able to refer you to independent Financial Consultants and/or Buildings Insurance Specialists who are able to assist in these types of matters. By your acceptance hereof you hereby authorise us to provide the independent Financial Consultants and/or Buildings Insurance Specialists with your contact and transaction details with a view to providing services required for your transaction. Following these parties receiving your details a representative from the relevant party will contact you to discuss these matters further..

Risk and Responsibility Factor
The figure arrived at by totalling the time spent may be increased by a “Risk and Responsibility” factor. This reflects the complexity and difficulty of the transaction, the urgency with which you want it carried out, the value of any money or property involved, the skill or specialist knowledge required, the risk and responsibility we are required to shoulder on your behalf and anti-social hours involved in looking after this transaction for you. Usually this will be 0.5% of the value of the money or property involved.

Whether a transaction merits a Risk and Responsibility factor and what is a fair and reasonable percentage to be applied will be determined by a suitably qualified Independent Law Accountant. In all cases we reserve the right to choose to have our fee assessed independently by an Independent Law Accountant. In such cases the Independent Law Accountant’s fee will be treated as an outlay for which you will be responsible.

The policy set out above applies to all transactions but it may be specifically amended if the work to be undertaken falls into one of the following special categories:

Executry Estates
If applicable see attached section headed “Executries”

If there is a property to be sold or transferred, any Estate Agency or conveyancing work undertaken by this Firm will be charged separately and in addition to the fee charged for administering the executry estate.

Administrating Powers of Attorney and Trusts
If applicable see attached section headed “Powers of Attorney/Trusts”

A fee based on the factors set out in the schedule will be charged at least annually. A final fee and any outstanding outlays will be settled immediately before the conclusion of all work in connection with the Power of Attorney or Trust administration.

By your acceptance hereof you agree that we can settle such fees from any funds we hold.

If there is a property to be sold or transferred any Estate Agency or conveyancing work undertaken by this Firm will be charged separately and in addition to the fee charged for administering the Power of Attorney or Trust estate.

Registration of transactions using ARTL
We are registered for the operation of the Automated Registration of Title to Land (ARTL). Under this new system of automated registration, applications which qualify for ARTL registration are registered electronically with the Land Register.

The applications which qualify for ARTL depend entirely on the manner in which the title is currently registered, the manner in which the new title is proposed to be registered and whether the legal agents acting for the other party are also registered for ARTL. If is therefore not possible for us to dictate whether your title transaction will qualify for ARTL registration.

If your application does qualify to be dealt with under the ARTL system this enables the title transfer to be processed electronically using digital signatures. You will therefore no longer be required to personally sign title deed documentation. Instead you will be sent an ARTL Mandate. By signing the Mandate, this allows us to sign the title documentation on your behalf once the ARTL Mandate is returned by you.

Estate Agency
You agree that Alex Hutcheon + Company shall be the sole and exclusive selling agents in the sale of the Property. We undertake to market the Property and to attempt to secure the best sale price.

The selling fee payable to Alex Hutcheon + Company, subject to any additional charge for accompanied viewing, shall be the percentage of the sale price (the price of the heritable Property and any movable items sold therewith) intimated to you in the quote which you have received plus VAT. The selling fee becomes due to us when a Contract for the sale of the Property is concluded or settled, whichever happens first.

You will be liable to pay Alex Hutcheon + Company for all advertising charges and other expenses incurred by us when taking your initial instructions in connection with marketing of the Property. During the marketing of your Property we will request settlement of any advertising charges and other expenses further incurred on a monthly basis.

If you withdraw the Property from the market no additional fee is payable but you will, within 7 days of your instructing us to withdraw the Property from the market, re-imburse any expenses incurred by us on your behalf.

You will pay the balance of any outlays and our selling fee at the date of entry for the Property and by your acceptance hereof you agree that this Agreement shall form an irrevocable Mandate for payment of the said selling fee and outlays to Alex Hutcheon + Company at the date of entry from the net sale proceeds of the Property, by the Solicitor acting on your behalf whether or not this is Alex Hutcheon + Company.

If at any time a Contract is concluded for the sale of the Property (whether or not such a contract is subject to any suspensive or other conditions) with a purchaser introduced by Alex Hutcheon + Company during the period we were marketing the Property for sale or with whom we had negotiations about the Property during that period or with a purchaser introduced by another agent during that period then you will be liable to pay our full selling fee plus VAT.

If there is more than one seller then each of you is jointly and severally liable to pay the whole amount due to Alex Hutcheon + Company.

You confirm that you will notify us immediately of any faults or problems that develop with the Property or any of the fixtures and fittings that are to be included in the sale.

The Solicitors Property Centres throughout Scotland collate house sale prices in order to produce statistics relating to the local housing market and by your acceptance hereof you authorise us to disclose the price to the Property Centre through which your Property is advertised for sale.

Land and Buildings Transaction Tax – Authority to Submit Return and Make Payment
In the case of a purchase transaction it is now a requirement of Revenue Scotland that a tax return is submitted for all purchases in respect of Land and Buildings Transaction Tax which is the replacement by Revenue Scotland for the former Stamp Duty payable to H M Revenue & Customs. During the course of your transaction the relevant Land and Buildings Transaction Tax Form will be drafted on the Revenue Scotland Online Portal by our Firm on your behalf. It is a requirement of this form that you disclose your National Insurance Number and this should be submitted to us in writing during the course of your transaction but no later than the date of entry for your purchase. By your continuing instructions to our Firm in respect of your purchase transaction you hereby authorise our Firm to prepare the Revenue Scotland Land and Buildings Transaction Tax on your behalf and submit same on the date of entry and make payment of all Land and Buildings Transaction Tax due (if any) on the date of entry for your purchase. The cost of the Land and Buildings Transaction Tax (if any) will require to be paid by you to our Firm no later than the day prior to the date of entry to enable this payment to be made on your behalf on the date of entry.

Following the recent Scottish Government announcement the Land and Buildings Transaction Tax Additional Dwelling Supplement comes into force on 1 April 2016.  This will introduce an additional amount of Land and Buildings Transaction Tax (“LBTT”) on the purchase of additional dwellings in Scotland such as Buy to Let properties and second homes regardless of whether only one party to a transaction or one spouse in a transaction or a spouse/civil partner/cohabitee or dependant child unconnected with the transaction is the registered owner of a second property or has an interest in an additional dwellinghouse located anywhere in the world.  The supplement adds an additional 3% of the total price for the property to the LBTT liability for all relevant transactions on or above £40,000 and will be levied in addition to the current Land and Buildings Transaction Tax Rates.  This supplement takes effect on all transactions after 1 April 2016 and as such if your purchase transaction falls within the definition of an additional residential property you will be required to pay the additional Land and Buildings Transaction Tax to this firm prior to the date of entry for your purchase in order that this sum may be paid to Revenue Scotland following settlement. For the avoidance of doubt where a “non natural person” such as a company purchases a residential dwelling this will automatically incur the Additional Dwelling Supplement of 3% which will require to be paid to this firm prior to the date of entry for your purchase in order that this sum may be paid to Revenue Scotland following settlement.   In the event that you fail to disclose to us during the course of your transaction that you are the owner of a second property or have any interest in an additional dwelling anywhere in the world whether or not this is a buy to let property then any subsequent tax liability and penalties which fall to be due by you will require to be paid by you to Revenue Scotland and no liability shall fall on our Firm in connection with the failure to disclose this to Revenue Scotland or the tax and any penalties which become due by you. 

 

Internal Transactions and Authority regarding Transfer of Funds
In the case of a purchase or sale transaction, if during the course of your transaction you have been advised that the Firm will be attending to the conveyancing formalities in connection with the transaction on behalf of both parties, in terms of Law Society regulations should a conflict of interest arise during the course of the transaction each party will require to obtain separate legal advice. By your acceptance hereof you authorise and instruct the Firm to transfer the purchase price from the ledger relative to the purchase to that of the clients of the Firm who are selling the property to you. By forwarding funds to the Firm you confirm that you are authorising the Firm to finalise settlement of the transaction on the specified date of entry.

Payment of fees and outlays
Except as otherwise detailed in this agreement, all fees payable to Alex Hutcheon + Company and any expenses due in connection with a transaction will be settled at the latest on the day of completion of the transaction. If the transaction is a property sale and there will be surplus funds, we will deduct all such fees and expenses from the proceeds of the sale before remitting the free proceeds to you. In any circumstances where we recover sums of money on your behalf we shall be entitled to deduct our fees and outlays from such sums before remitting the balance to you.

When taking your initial instructions we may request you to make a payment to account of fees and outlays. It may be appropriate for further payments of this nature to be sought from you from time to time. We may not be able to start or continue working for you if a requested payment to account has not been received and cleared.

In respect of any invoice issued these are due for immediate settlement. If invoices are not settled in full within fourteen days from the date on which they are issued we reserve the right to charge interest at the rate of 3% per annum above the base rate of Clydesdale Bank plc applicable from time to time.

For on going matters or transactions that are likely to last for more than 3 months we will render interim fees on a quarterly basis. We reserve the right to withdraw from acting for clients where the terms of this agreement are not adhered to.

Payments made to lenders by our Firm will be made by telegraphic transfer at a cost to you of £21.00.

Payments to our firm may be made by telegraphic transfer to our nominated client account or by personal cheque made payable to Alex Hutcheon + Company. We are unable to accept card payments. Our preferred method of payment is by telegraphic transfer. If you wish to provide us with funds by means of a cheque as opposed to telegraphic transfer it is necessary to allow five banking days for your cheque to clear in order that we can proceed with your transaction. It is your responsibility to ensure that funds are received by us to enable us to progress your transaction timeously.

Arbitration
If any dispute arises between the parties in relation to the level of fee charged, the same shall be referred to the amicable decision of a suitably qualified Independent Law Accountant, acting as an Arbiter, to be appointed by Alex Hutcheon + Company, the decision of such Arbiter to be final and binding on the parties notwithstanding the terms of the Administration of Justice (Scotland) Act 1972.

The Arbiter can fix a fee higher or lower than the fee charged. If it is lower, then we will pay the expenses of the Arbitration and reduce our fee accordingly. If the Arbiter fixes a higher fee or confirms the fee as charged, then you will be responsible for any increase in the fee and the expenses of the Arbitration.

Cleared funds
The Law Society of Scotland, who are our governing body, has issued guidelines to all solicitors on the question of cleared funds. At the heart of the problem is that any cheque is not actually money, it is only a promise that the Bank will pay money in exchange for the cheque. The way that the bank clearing system works means that it can take up to 5 banking days for the promised money to be deposited in our bank account. If the Firm were to send out a cheque on the strength of an uncleared cheque and, for whatever reason, the uncleared cheque does not clear, this could lead to the Firm being closed down by the Law Society.

In light of this guideline, we have had to implement stringent standard procedures for all transactions that cannot be departed from. These are:-

If we receive funds by cheque, whether from you or from the mortgage lender, we will need that cheque no later than 5 banking days prior to the completion date.

Before we send out any free proceeds of sale, the cheque received from the purchaser’s solicitors must have cleared in our account. This can take up to 5 banking days.

As soon as funds are cleared in our account the free proceeds of sale will be sent to you by cheque. If however you would prefer that your free proceeds are sent to you by means of a transfer into your account, you will have to advise us prior to settlement and provide us with written details of your nominated bank account. This will be done after 5 working days have passed following settlement and a bank charge for the transfer will be deducted from the sum to be transferred. Please note that e-mail requests for a telegraphic transfer will not be accepted and all written requests for a telegraphic transfer must signed by all parties involved in your transaction and the principal of same received by our office prior to the funds being transferred.

Confidentiality
Neither the Firm nor any of its employees will disclose to any person any information relating to the business you have entrusted us with, except, of course, as required in the proper conduct of that business. Unless otherwise specifically agreed in writing you authorise us to speak to or meet with any other person whom we may need to contact to appropriately carry out the work you have instructed us to carry out on your behalf. We may release to such persons for the purpose of carrying out the work you have instructed us to do any information, whether confidential or not, which we have obtained during the course of the time we have acted for you. In the event that we are acting for two or more individuals together you hereby authorise us to release to all parties all information in connection with the transaction(s) which we are carrying out on your behalf.

Conflict of Interest
We currently understand that we do not have any conflict of interest with any other party in relation to your transaction. We can advise that we are unable to act for two or more parties if they have conflicting interests. Please advise us immediately on receipt of these Standard Terms of Engagement in you are aware of any potential conflicts of interest. If any conflicts of interests arise in the future please advise us immediately and we will then require to decide whether we can continue to act. If a conflict of interest arises the Law Society’s Regulations require us to withdraw from acting for one or both parties for whom we act.

Money Laundering
Alex Hutcheon + Company is obliged by law, along with all other solicitors, to comply with all civil and criminal legislation currently in force. This includes the Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007. These require us to undertake identity checks on all clients and, notwithstanding any confidentiality issues (subject to “privileged” circumstances), to report to the authorities any transaction or activities we regard as “suspicious”.

We are obliged to ask you to provide identification evidence. The regulations allow us to start work on your behalf but we must have the necessary documents immediately. If we do not receive them from you, within 14 days of the date the identification is requested by our Firm, we have to stop all work on your transaction until the documents are produced. Please note that all forms of identification provided must be original documents and that scanned or photocopied identification is not acceptable. Paper driving licences are also no longer valid as a form of identification. It is also necessary that we have met in person all parties involved in your transaction together with their original forms of identification.

Also in terms of the Money Laundering Regulations and the Council of Mortgage Lenders Handbook our Firm have a responsibility to obtain detailed information in relation to any deposit which has been transferred to the Firm to be used in connection with your transactions. This may involve you providing Bank Statements or further details as to where the deposit originated prior to the funds being transferred to us. This may also involve further documentation, including details of or identification documentation for any third party, being requested if the deposit has been paid by a third party including the consent of any mortgage lender being obtained in respect of the use of such a deposit. By your acceptance hereof your hereby confirm that we may contact any such Third Parties in connection with this matter and also confirm that you provide all such documentation requested by our Firm.

Termination of appointment
Either of us may terminate our professional relationship at any time by giving written notice to the other. We hope that this will not happen but if it does, you will pay us all fees and outlays and expenses incurred prior to such termination and due to us in accordance with these Terms of Engagement, together with any further fees and outlays and expenses reasonably incurred by us in connection with the transfer of our files to another solicitor instructed by you. Where Alex Hutcheon + Company markets your property for sale we are entitled to be paid the Estate Agency fee if the eventual purchaser’s interest in your property originated prior to our agency being terminated. Upon payment, we will deliver the originals or copies of all deeds and documents belonging to you.

Files
Once your transaction has been completed, after a period which we deem appropriate you will accept that your file will be destroyed irrespective of current Law Society guidelines. If you require us to deliver your file to a third party, same will only be released (provided it has not already been destroyed) provided all payments due to this Firm have been made. Files retained by our Firm are retained on this basis only. If you subsequently require information from the file held by us we may make a charge to attend to this.

You are entitled to change solicitors at any time but you will remain responsible for all fees, VAT and outlays incurred and due to us up and until the time of your intimation to us, in writing, requiring us to cease further work. We are entitled to hold your files and papers on your behalf until payment in full has been received.

Acceptance of terms of engagement
By your continuing to instruct us you will be deemed to have read, understood and accepted these Terms of Engagement. These foregoing standard terms, as amended by any separate agreement, will govern the current transaction and any subsequent transaction that commences within the next 12 months.

Complaints and feedback re levels of service
If you have any reservation or complaint about the service delivered to you please, in the first instance, discuss with the person handling your transaction. If you remain unsatisfied please contact Alex Hutcheon whom the Firm has appointed as Complaints Officer to adjudicate on any such matters.

However, if that would cause you difficulty or embarrassment, please speak to Alida Bryce.

We can advise that in the event that you wish to express dissatisfaction with the Firm or an individual acting on behalf of same, which cannot be resolved direct with the Firm, the Scottish Legal Complaints Commission (SLCC) are the independent body used as the gateway for complaints at the appropriate time. The SLCC operates strict time limits for accepting complaints, and this time limit requires complaints to be made within one year of the service ending or the conduct occurring. However, the SLCC will disregard any time it considers that the complainer was excusably unaware of their concerns.

Ownership of the intellectual property rights in work produced while we act on your behalf
It is very rare that a complete transaction is unique and original. Usually large parts of the letters, contracts, other documents and advice are produced from documentation or knowledge we have accumulated over many years. We will copy all and any documents to you but all intellectual property rights in the documentation remains the sole property of Alex Hutcheon + Company.

GENERAL BUSINESS
In calculating the final fee the following factors will also be taken into consideration, the value of any money or property involved, the complexity and difficulty of the matter, the skill or specialist knowledge involved, the degree of urgency and commission on cash transactions as applicable.

The hourly rate will be broken down into units of 6 minutes. Letters and documents will be charged as follows:-

Letter per page of 125 words 1.25 units
Acknowledgements 0.5 unit
Drawing deeds and contractual documents per sheet of 250 words 5 units
Other documents (or documents prepared from a pro forma or style) per sheet 3 units
Revising documents will be charged at half the appropriate drawing fee
Telephone calls as per hourly rate – minimum charge (apart from formal calls acknowledging/confirming – charged as acknowledgements above) 1 unit

EXECUTRIES
Our charges are based on the time spent dealing with the administration of the estate plus a percentage of value of the Estate and of the funds intromitted with, the maximum percentage charges are as follows:-

Moveable Estate 0.5%
Transfer of Heritage by Disposition 0.5%
Transfer of Heritage by Docquet on Certificate of Confirmation 0.25%
Realising Capital 1.5%
Realising Capital for reinvestment 0.75%
Investing Capital 0.75%
Collection of income 5%

The hourly rate will be broken down into units of 6 minutes. Letters and documents will be charged as follows:-

Letter per page of 125 words 1.25 units
Acknowledgements 0.5 unit
Drawing deeds and contractual documents per sheet of 250 words 5 units
Other documents (or documents prepared from a pro forma or style) per sheet 3 units
Revising documents will be charged at half the appropriate drawing fee
Telephone calls as per hourly rate – minimum charge (apart from formal calls acknowledging/confirming – charged as acknowledgements above) 1 unit

POWERS OF ATTORNEY/TRUSTS
Our charges are based on the time spent dealing with the administration plus a percentage of the funds intromitted with throughout the period of the account. The maximum percentage charges are as follows:-

Realising Capital 1.5%
Realising Capital for reinvestment 0.75%
Investing Capital 0.75%
Collection of income 5%

The hourly rate will be broken down into units of 6 minutes. Letters and documents will be charged as follows:-
Letter per page of 125 words 1.25 units
Acknowledgements 0.5 unit
Drawing deeds and contractual documents per sheet of 250 words 5 units
Other documents (or documents prepared from a pro forma or style) per sheet 3 units
Revising documents will be charged at half the appropriate drawing fee
Telephone calls as per hourly rate – minimum charge (apart from formal calls acknowledging/confirming – charged as acknowledgements above) 1 unit

01-01-17

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We provide a comprehensive range of services for all your property requirements. Your transaction will be handled directly by one of our Partners or Senior Assistants.