Provision for the condition of these is contained within Condition 4 of the Scottish Standard Clauses (Edition 1) which is incorporated into the vast majority of Scottish missives or contracts to buy and sell residential property.
The test for these items is "working order", i.e. if the system or appliance works on the date of entry when the keys are obtained, then that is sufficient. If the purchaser has any concerns about the working order of the central heating system, for example, it is recommended that he arranges for a separate inspection of this prior to concluding missives as it will not be covered by the surveyor's report. Any defects existing at the date of entry require to be intimated within five working days of the date of settlement, otherwise any claim is lost.
The "working order" requirement does not include any element of upgrade and is commensurate with its age. The seller has no obligation to carry out any works to the systems or appliances except those necessary to put them back into working order. Similarly, there is no liability on the seller to have regularly serviced or maintained the system and its compliance with current installation regulations is irrelevant. To protect the purchaser, the missives provide for the seller to confirm that he has received neither notice nor intimation that the system is in an unsafe or dangerous condition, e.g. following a gas maintenance inspection.Once the price is paid and the keys are handed over, there is no real incentive for the seller to inspect or even comment on any intimated defect after the date of entry as he will, in many cases, be focusing on a new property with system checks of his own.
The missives therefore provide that, in the event that the seller does not inspect defects (or that the defects are inspected and not rectified) within five working days of the intimation, or otherwise in the case of emergency, the purchaser may press ahead and have any necessary repairs carried out at the seller's expense. In the vast majority of cases, the purchaser will move in and the central heating system and appliances will be in working order and both parties can move on with the enjoyment of their respective properties. However, in some cases, a claim may have to be raised and the missives relied upon. It is also important to note that any claim arising out of the missives can only be raised if the loss to the purchaser is over £300. Whilst it would be nice to think that if any claim is raised, the seller would readily meet any costs claimed by the purchaser, this is often not the case. In that event, the ultimate recourse for the purchaser is to raise court proceedings. It is worth mentioning that this can be time-consuming and expensive if raised through their solicitors. Costs can be minimised through the use of small claims procedures if the claim is less than £3000 and proceedings can be raised by the purchaser directly, if so inclined.
In the case of a sale by executors, trustees under a trust estate or even by a landlord, the position is slightly different. Generally speaking, a solicitor acting on behalf of those parties will limit their warranties as much as possible since they may not have had direct involvement with the property and perhaps have never lived in or even visited there. It is, therefore, unfair for such sellers to have to bear the responsibility of the working order of systems or appliances. It may be, therefore, that the purchaser of an executry, trust or a previously rented-out property finds himself taking on the liability for the systems and appliances at the date of entry with no recourse to the seller.
On the other hand, it could also be argued that if the property is being marketed with the benefit of a central heating system, then the purchase price offered is based on having the benefit of that system and by implication, for it to be in working order. That would be the basis of negotiation between the seller's and the purchaser's solicitors.Whilst the position, therefore, is not ideal for the purchaser, the purpose of the Standard Conditions is to ensure fairness on both sides of the contract. Missives cannot cover every eventuality. Solicitors can only appeal to sellers to ensure the systems and appliances included in the price are in working order and to purchasers to ensure that any claim made after the entry date is genuine and fair.