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Coronavirus - Necessity is the mother of invention

At the beginning of lockdown, Registers of Scotland closed their “Application Record”.  Conveyancing came to a standstill.  Public Health considerations put house moves on hold, and technical considerations put all other transactions on hold.  The housing market was declared closed.

Ten weeks ago, conveyancing was a very paper-based activity.  Very quickly, though, Registers of Scotland put in place measures to mitigate some of the technical difficulties.  Within a couple of weeks, legislation was passed extending the “protected period” provided by Advance Notices, and systems were developed to allow those Notices which previously required to be lodged in paper form to be submitted online.  A month later, a system was put in place to allow for the digital submission of deeds for registration, where those deeds could not wait for the reopening of the Application Record to traditional applications.  

Last week a further statute came into force removing the requirement for Notaries Public to be physically in the same place as the deponent (the client).  The Law Society of Scotland have now issued guidance to solicitors about having documents witnessed and signed over live video conference calls, such as the now ubiquitous Zoom.  

These measures address, by and large, the technical difficulties – transactions can now proceed if they must.  Public health concerns persist though, and although progress has been made in suppressing the virus, restrictions remain in place regarding moving house.

Where are we now?

If a residential property is empty, and there is no chain reliant on other transactions settling, then settlement is now possible.  Commercial transactions can also proceed, if social distancing can be maintained at all times during the transaction.  Transfers of Title, between separating partners or spouses or during the course of the administration of an executry for example, can proceed.  Remortgages can be completed, and general advice regarding title queries and so forth can be provided.  Solicitors’ offices remain closed, but the work continues.

So the only transactions presently on hold, and waiting for a further reduction in the spread of the virus, are those house moves.  We have now entered Phase One of the Scottish Government’s Road Map to Recovery.  During Phase One, the Government advice remains that house moves should continue to be put on hold.  It is not considered safe to move into a property recently occupied by other people, and the process of moving house does not lend itself well to physical distancing measures.  Removal firms remain closed for just that reason. 

The Scottish Government advice to businesses involved in the housing market, including solicitors and estate agents, indicates that preparations can be made during Phase 1 for reopening of the market during Phase 2.  When Phase 2 is announced, viewings of properties will be possible, Surveyors will be able to complete Home Report inspections and, crucially, people will be allowed to move house.  

The Government have made clear that no date is set for Phase 2 and that these plans are contingent on regulations being passed by Parliament to support the relaxation.  Normality will not have returned: physical distancing will be necessary, as will the availability of facilities to wash hands in a property, and visitors (professionals and viewers) will not be able to touch parts of the property, for example door handles.  But it will be a start and it help ease the economic pain whilst not risking the loss of more lives to this virus.

If you require advice about any aspect of property law, conveyancing or the process of moving home at the present time, please contact me at Enable JavaScript to view protected content., or my colleague Claire O’Brien in our Estate Agency, at Enable JavaScript to view protected content..

Robert Macduff-Duncan


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