These General Conditions apply to the sale of each of these lots in the auction subject to any
variation or addition referred to in the special conditions of sale relating to the relevant lot;
1. The seller reserves to itself the following rights:
(a) to withdraw any lot from the
auction; (b) the right to sell by private bargain the whole or any part of any lot before
the auction and that without disclosing the reserve price or giving any reason therefore;
(c) to consolidate two or more lots into one and; (d) the right to bid by itself or by the
auctioneer up to the reserve price. Special conditions of sale shall have precedence over
these general conditions of sale, in case of any conflict.
2. Reserve price
Unless otherwise stated, there will be an undisclosed reserve price.
3. Bidding
The auctioneer retains the right to regulate the bidding and refuse any bid or bids
without assigning any reason therefore in his sole and absolute discretion. All bidders are
required to register their details and provide proof of identity to obtain a bidders number
prior to bidding. In the event of competition each offer after the first shall exceed the
immediately preceding offer by such sum as may be prescribed by the auctioneer. The
auctioneer retains the right to divide and sell any lot in separate lots if the whole lot is
unsold, or sell a group of individual lots as one lot. All bids are to be made clearly. The
person offering the reserve price or if there be more offers than one above the reserve
price, the highest bidder, shall be the purchaser. On the fall of the auctioneer’s hammer
on his successful bid, the successful bidder must provide the auctioneer with their
allocated bidding number and in default the auctioneer shall be entitled to re-submit the
lot for sale. The successful bidder shall then immediately pay the deposit at the deposits
desk. If the bidder wishes to bid on a subsequent lot then they may do so under the
discretion of the auctioneers and pay the deposit once they are finished bidding. After
placing the necessary deposit the successful bidder shall then immediately forthwith
complete and sign the Minute of Preference and Enactment, the date of which shall be
the date of the auction, and shall become bound and obliged for the sum offered by him.
If the successful bidder acted as an Agent he must again give details of his Principal at
the time of completing and signing the Minute of Preference and Enactment. In default
the auctioneer will be entitled to re-submit the lot for sale or allocate a representative to
sign the contract as offeror for the bidder & principal. A bid which does not reach the
reserve price at the time of auction may be held provisionally by the auctioneer &
submitted to the vendor of the property to be accepted or rejected. The bidder is held
liable to their provisional bid price for 7 working days after the auction date. If the
auctioneer does not return an answer to the bidder within this time then the bidder is not
required to stand on their provisional bid. If the provisional bid is accepted then the
bidder is required to proceed under auction terms immediately upon notification as
follows. The contract for the sale of the lot shall be created upon the auctioneer
accepting a bid from a purchaser, unless otherwise stated in the special conditions of
sale, and the payment of a deposit shall not be a pre-condition of the contract. Where
the sale of a lot is agreed pre or post auction then the payment of the deposit shall bind
the purchaser to these terms and conditions of sale and the purchaser will proceed as
per a regular auction sale. The auctioneers reserve the right to modify the specified date
of entry in the auction contract as per any negotiation between purchaser and seller.
Where a deposit payment is made by telephone or proxy form there shall be no cooling
off period allowed. In default of the purchaser signing the contract the auctioneer will be
entitled to allocate a representative to sign the contract as offeror for the bidder &
principal.
If the purchaser is a Limited Company then:-
(a) The contract to purchase the lot shall be deemed to be entered into at the request
of the successful bidder (“the Guarantor”)
(b) The Guarantor warrants that the purchaser is a properly constituted Limited
Company of good standing and empowered to purchase any estate or interest in
land in the United Kingdom and that the Guarantor has been duly authorised by
the purchaser to bind the purchaser to purchase the lot.
(c) The Guarantor guarantees to the seller (as witnessed by the signature of the
Guarantor on the Minute of Preference and Enactment which the Guarantor shall
be deemed to sign as agent for the purchaser and as the Guarantor of the
purchaser) as follows…
(i) That the Guarantor shall within five working days of any request therefore
provide to the seller’s solicitors such evidence as they may reasonably
require to verify the warranties given by the Guarantor under clause 3(b)
hereof.
(ii) That the purchaser will observe and perform its obligations under this
contract to purchase the lot and the Guarantor will pay and make good to
and keep the seller indemnified in respect of all losses, actions, costs,
expenses and damages of the seller arising by virtue of any breach by the
purchaser of such obligations and the Guarantor’s liabilities to the seller
hereunder shall not be released by any neglect or forbearance on the part of
the seller in enforcing or giving time to the purchaser for the performance of
the purchaser’s contract to purchase the lot.
(iii) That if any liquidator of the purchaser shall disclaim this contract to purchase
the lot then the seller may within 28 days from the date of such disclaimer
give the Guarantor fourteen days written notice requiring the Guarantor to
accept such disposition of the subjects contained in the lot upon the same
terms (mutatis mutandis) as this contract (as if any such liquidator had not
disclaimed the same) save that time shall be of the essence for the purpose
of the date for completion which shall be on or before the expiry of such
fourteen days notice and the Guarantor shall (in addition to the payment of
all sums due from the purchaser to the seller under this contract) pay to the
seller any interest which should have been payable to the seller by the
purchaser but for such disclaimer.
4. Deposit
A deposit of 10% of the purchase price (subject to a minimum of £3,000) shall be paid
by the successful bidder or the purchaser forthwith after the sale of each lot to the
auctioneers, “Future Auctions Ltd”, as Agents for the seller and stakeholder between the
parties, and after the completion and subscription of the Minute of Preference and
Enactment. Payment of the deposit must be made by clear funds in such manner as the
auctioneers, in their sole discretion, accept. In addition to the deposit payable upon
exchange of contracts, buyers will be required to pay an administration fee of 1% of the
agreed sale price subject to a minimum fee of £1,500 plus VAT. If the successful bidder
or purchaser fails to make the deposit, the auctioneer may re-sell the lot or require the
immediately preceding bidder to complete the purchase at his last offer without prejudice
to the seller’s right to claim damages against the purchaser for his failure. If a cheque
given for the payment of the deposit is dishonored on presentation or if the purchaser
fails to pay such deposit immediately after subscription of the Minute of Preference and
Enactment, the seller will be entitled to treat this as being a repudiation of the contract
and will be entitled to rescind the contract and re-sell the lot. Without prejudice to this
the seller may still claim damages for repudiation of the contract against the purchaser.
The auctioneer reserves the right to hold the Minute of Preference and Enactment until
clear funds have been secured from the purchaser.
5. Date of Entry and Payment of Balance of Purchase price.
The date of entry, when the balance of the purchase price is payable, shall take place on
the date specified in the Special Conditions of Sale or, if not therein specified, twenty
eight days from the date of the Auction or such earlier date as may be mutually agreed
between Seller and the Purchaser. The purchase price will be exclusive of Value Added
Tax (*VAT*). Should VAT Be chargeable on the Lot, the Seller reserves its right to charge
VAT in addition to the purchase price, in exchange for a valid VAT invoice. If the balance
of the purchase price has not been paid in full by 3pm on the date of Entry the Seller’s
Solicitors shall be entitled to refuse to settle the transaction on that day or, as a condition
of completing after 3pm on that day, to require that the next working day shall be
deemed to be the date of entry for the purpose of calculating interest on the balance of
the purchase price payable, and apportioning incomings and outgoings. Payment of the
balance of the purchases price in full by 3pm on the date of entry is of the essence of the
contract. In the event of the balance of the purchase price or any part thereof remaining
outstanding as at the date of entry, the notwithstanding consignation or the fact that
entry has not been taken by the Purchaser, the Purchaser shall be deemed to be in
material breach of contract and further, interest will accrue in favour of the Seller at the
rate of five per cent per annum above the Bank of Scotland plc base lending rate
governing from time to time until full payment of the balance of the purchase price
(including the interest accrued) is made or, in the event of the Seller exercising his
option to rescind the contract, until such time as the Seller shall have completed re-sale
of the Lot and received the re-sale price and further interest shall run on any shortfall
between the balance of the purchase price hereunder and the re-sale price until such
time as the shortfall shall have been paid to the Sellers. If the balance of the purchase
price, with interest as aforesaid, is not paid in full by the date seven days after the date
of entry the Seller will be entitled to treat the Purchaser as being in material breach of
contract and will be entitled to rescind the contract without liability upon giving prior
written notice to that effect to the Purchaser and, in such circumstances, the Purchaser’s
deposit will be held to be forfeit to the Seller, without prejudice to the Seller’s right to
claim damages for all loss, damage and expense suffered as a result of the breach of
contract by the Purchaser, so far as such loss exceeds the deposit forfeited by the
Purchaser, including interest on the balance of the purchase price calculated as set out in
this clause. The auctioneer’s agreed sales commission is still payable by the vendor in the
case that a purchaser is held in breach of contract. For the purpose of computation, the
interest element of any claim by the Seller shall be deemed to be a liquidate penalty
provision eligible notwithstanding the exercise by the Seller of his option to rescind the
contract for non-payment of the price or any repudiation of the contract by the
Purchaser. This clause and the commencement of accrual of interest as specified herein
shall not have effect in any period during with non-payment by the Purchaser is
attributable to fault on the part of the Seller or his agents. If for any reason the vendors
are unable to complete the sale of Lot then all deposit monies will be returned to the
purchaser. The purchaser agrees that the auctioneers & vendors will not be held liable
for any expenses or loss of possible income incurred by the purchaser in this instance.
Where a vendor decides to not or is unable to complete the sale of a property it will be
the vendors sole responsibility and liability to return the full deposit monies including any
commissions paid to the purchaser immediately.
6. Insurance
The risk of damage or destruction of the Lot will pass to the Purchaser on the date of
subscription of the Minute of Preference and Enactment by or on behalf of the Purchaser
and the Purchaser shall make his own arrangements for insurance of the subjects with
effect from that time. The Seller will be under no liability in respect of any damage to or
destruction of the Lot from whatever cause as from this time. The purchaser will be
bound to proceed with the purchase of the Lot notwithstanding damage to or destruction
of the Lot from whatever cause.
7. Apportionment of Rents, Rates, Taxes etc
The Purchaser will be entitled to any rents of the Lot purchased by him from and after
the date of payment of the purchase price in full. All apportionments as between the
Seller and the Purchaser of rent or other receipts or outgoings shall be made as at the
date of entry on a day/year basis on the assumption of a 365 day year.
8. Planning and Related Matters
The Purchaser shall be deemed to have made all necessary enquiries in connection with
the planning position, the status of roads, footpaths, and main drains and generally all
such other matters as are normally covered by Local Authority Searches and Property
Enquiry Certificates and the Seller will not be required to produce and such certificates or
Searches. All purchasers and prospective purchasers are deemed to have placed no
reliance whatsoever on any sales evidence or lettings evidence which appears in the
catalogue or websites, and all purchasers are advised to make their own enquiries with
regards to sales evidence and letting potential on all properties. All purchasers and
prospective purchasers are deemed to have placed no reliance whatsoever on any
comments made either verbally or in the catalogue or on websites, with respect to;
descriptions of any property or location, accommodation details or descriptions or
statements, any rental guarantees, any sales evidence whatsoever, any lettings evidence
whatsoever, any prospective development potential of any property which may be stated
whatsoever, or anything which appears on the LOT page of any property whatsoever,
auctioneers websites or may have been verbally said to all purchasers and prospective
purchasers. The Purchaser shall assume that the present use of the lot is a permitted use
under the Town and Country Planning (Scotland) Acts but no representation or warranty
is given by or on behalf of the Seller and nothing communicated by or on behalf of the
Auctioneers, whether verbally or in writing, will constitute such a representation or
warranty by the Seller that such use is, will become or will continue to become a
permitted use within these provisions. No warranty or representation is given by or on
behalf of the Seller either as to the state or condition of the Lot or any part of it or as to
whether the same subject to any schemes, resolutions, development orders,
improvement notices or other proposals under the Housing Acts or other legislation or
regulations. The Purchaser shall be deemed to purchase in all respects subject to such
matters and warrants that he has and shall be deemed to have made all necessary local
Searches and Enquiries prior to the Auction and to have full knowledge of all matters that
would be disclosed thereby. Without prejudice to the foregoing provisions the Purchaser
will accept full liability and responsibility for the cost of implementing any outstanding
Statutory Notice issued by the Local Authority or by any other Authority.
9. Title
The title will be taken as it stands and the Purchaser will be taken bound to have
satisfied himself as to the validity and sufficiency of the title and the Seller’s right to the
Lot and his ability to sell same. Without prejudice to the foregoing or to any other
General or Special Condition of Sale, the Purchaser will be bound to accept the title
subject to such burdens, conditions, rights of pre-emption, rights of redemption,
restrictions on use, encumbrances as set out in Section 9 of the Land Registration etc.
(Scotland) Act 2012 (the “2012 Act”) (whether specified or referred to in the title or not)
and Caveats as defined in Part 6 of the 2012 Act which may be imposed or contained in
the title or otherwise affect the Lot, and will be bound to comply therewith or obtain any
necessary Waiver thereof all at his own expense. The minerals will be conveyed only in
so far as the Seller has right thereto. The Seller has redeemed or will redeem all
allocated feuduties and ground annuals exigible from the Lot. If neither the Seller nor the
Purchaser can identify or trace the Superior, the feuduty will remain unredeemed. The
Seller will not be required to allocate then redeem any existing unallocated feuduty. The
Lot will be sold under burden of any servitudes and rights of wayleave for laying and
maintaining sewers, drains, pipes, cables, telegraph and telephone poles, wires and stays
that may be laid in, under, through or across the Lot. The Purchaser will free and relieve
the Seller of all obligations incumbent upon the Seller to construct, uphold or maintain
any items of common property and any fences, walls, drains, ditches, water supplies or
other works within or in connection with the Lot. If the title to a Lot is not registered at
The Land Register of Scotland (the “Land Register”) or in the Sasine Register, it will be
deduced in accordance with the Special Conditions of Sale. The Seller shall be under no
obligation to obtain any documents and evidence which the Keeper of the Land Register
(the “Keeper”) may require to enable the Keeper to update or create (as the case may
be) the Title Sheet of the Lot to disclose the Purchaser as the registered proprietor of the
Lot, including (a) a plan or bounding description sufficient to enable the Lot to be
identified on the cadastral map; and (b) evidence (such as a plans report) that (i) the
description of the Lot in the title is habile to include the whole of the occupied extent and
(ii) there is no conflict between the extent of the Lot and any registered cadastral units.
Such documents and evidence shall be obtained by and at the sole expense of the
Purchaser and shall not be warranted by the Seller. The Sellers’ Solicitors will be under
no obligation to exhibit or deliver any evidence including consents, affidavits or
renunciations required under or by virtue of the terms of the Matrimonial Homes (Family
Protection)(Scotland) Act 1981 as amended or the Civil Partnership Act 2004.
10. Searches
No Legal Reports, searches in the Register of Community Interests in Land or searches in
the Register of Charges and Company Files for the Seller or any predecessors in title will
be exhibited or delivered nor will any letters of non-crystallisation of any floating charge
be exhibited or delivered in respect of any floating charge granted by the Seller or any
predecessor in title. No Letter of Obligation will be delivered by the Seller’s Solicitors and
no Advance Notice as defined in Section 56 of the 2012 Act will be applied for by the
Seller in relation to the Disposition. The Seller will be responsible for the discharge of any
recorded Standard Securities affecting the Lot. Where any Lot is being sold by the Seller
as heritable creditor in possession no discharges of the Standard Security in favour of the
Seller or of any pari passu or postponed Standard Securities will be exhibited or
delivered. No discharges of any inhibitions registered against the granter of the said
Standard Security in favour of the Seller as heritable creditor and dated after the date of
registration of the said Standard Security shall be exhibited or delivered.
11. No Warranties
The Lot is exposed for sale as it exists, tantum et tale, and not according to any
advertisement thereof, nor this catalogue, nor any information of any nature whatsoever
that may be communicated to the Purchaser at or before the date of the Auction. No
warranty is given as to descriptions, extents, boundaries, advertisements,
accommodation, rentals, rateable, value, feuduties, ground annuals or other payment,
the allocation thereof, leases, burdens, servitudes, rights of way or wayleaves, whether
formally constituted or not, building warrants, building warrant plans, certificates of
completion, planning permissions, superior’s consents, planning or any orders,
regulations or notices made by or issued by an authority, or any particulars, plans,
documents or information given by the Seller or his agents. The Purchaser accepts that
he has enquired and satisfied himself on all matters or otherwise he takes all risks. No
warranty is given as to whether the Lot is affected by rights and interests of statutory
undertakers including rights and interests relating to electricity sub-stations, generators
and gas governors and that irrespective of whether such rights and interests are held
under lease, title, missives or otherwise nor as to the extent to which the Lot is subject
to or has the benefit of any leases and other rights of possession and occupancy or other
third party interests. The Purchaser shall accept that vacant possession is given of the
whole or any part of the Lot which is sold with vacant possession notwithstanding that
there may be furniture, fittings or effects remaining therein and shall not be entitled to
require the Seller to arrange for the removal of same, nor object to the taking of same,
since the Seller gives no warranty as to the ownership of any moveable items situated
within the Lot. The Purchaser is deemed to have satisfied themselves as to any lease
agreement in place and accept the terms of any such agreement for the Lot. The
Purchaser shall be bound to accept any exclusion or limitation of warranty on the
updated or newly created (as the case may be) Title Sheet of the Lot (disclosing the
Purchaser as the registered proprietor) in terms of Section 75 of the 2012 Act, and any
entry, deed or diligence disclosed thereon, including any charging order under the
Buildings (Recovery of Expenses) (Scotland) Act 2014 and any notice of potential liability
for costs registered under the Tenements (Scotland) Act 2004 or the Title Conditions
(Scotland) Act 2003). The Principal Articles of Roup, Special Conditions of Sale and the
title deeds relating to the Lot and all subsidiary documentation will be available prior to
the date of the Auction for inspection at the offices of the Auctioneers or within the
auction rooms as specified in the Auction Catalogue at any time during normal office
hours by prior appointment and the Purchaser whether inspecting the same or not shall
be deemed to purchase with full knowledge of the contents thereof and the Purchaser
shall raise no objection thereto or requisition thereon whatsoever. In relation to tenanted
properties purchasers are expected to satisfy themselves as to any lease agreements or
stated rental prices. Rent payable may be less or more than stated in catalogue.
Purchasers are deemed to accept the current terms of any tenancy whether or not stated
in the auction particulars.
12. Claims
The Purchaser shall relieve the Seller of all claims in any way competent to tenants or
others whether such claims arise be agreement or at Common Law or by Statute and all
payments or charges, in respect of repairs, whether payable in one sum or by
instalments and whether arising from statute, by Local Authority Notice at Common Law
or otherwise and no warranty is expressed in respect of the condition of the property
which shall be accepted by the Purchaser as found.
13. Disposition or Assignation
On the date of entry and in exchange for payment of the whole purchase price and
interest thereon (if any) the Seller shall deliver to the Purchaser (i) a duly executed
Disposition or Assignation of the Lot in favour of the Purchaser and under the
reservations, burdens, conditions and others referred to in the title deeds of the Lot or
otherwise affecting the same; and (ii) any occupancy, tenancy or lease documentation
relating to the Lot. Any current lets, servitudes, rights of possession and other rights
however constituted shall be excluded from the warrandice to be granted in said
Disposition. The Seller will not be required to convey, transfer or assign the whole or any
part of the Lot to any person or body other than the Purchaser for Guarantor if the
Purchaser defaults or its liquidator disclaims the contract nor shall the Seller be required
to execute a Disposition or Assignation other than of the whole Lot nor at a price
different from that stated in the Minute of Preference and Enactment.
14. Judge of the Roup
The Judge of the Roup shall be the Auctioneer named in any Minute of Preference and
Enactment and shall have power to determine whatever questions or differences may
occur at the Auction between Seller and a bidder or among the bidders themselves in
relation to the foresaid Auction, to prefer the highest bidder and also to adjourn the
Auction from time to time.
15. Completion.
Notwithstanding the delivery of the Disposition or any Assignation in favour of the
Purchaser, these General Conditions of Sale, any Special Conditions of Sale, the Articles
of Roup and the Minute of Preference and Enactment to follow thereon will form a
continuing and enforceable contract, except in so far as fully implemented thereby, but
the contract shall cease to be enforceable after a period of three months from the date
of entry. In any case which a memorandum of sale is signed in place of a Minute of
Preference and Enactment and Articles of Roup then the purchaser is responsible to
ensure that the sale proceeds under the principles of these terms and conditions and that
the deposit is paid as such and an offer is submitted immediately to the vendors solicitor
without condition utilising these terms & conditions. Should any contracts be incorrectly
executed and there be a discrepancy or disagreement on the terms, prices and parties of
the contract then referral will be made to the auctioneer’s auction notes and any
applicable evidence. Failure of a vendor to produce a home report or EPC when required
does not constitute breach of contract on behalf of the vendor. The vendor has a duty to
produce a home report as specified by law and interpreted by the vendor. The
auctioneers will make all attempts to ensure necessary documentation is requested when
required but may not be held liable for the vendor’s actions who are ultimately
responsible for the cost and production of the home report and EPC.
16. Misrepresentation
All statements made in the Particulars of Sale are made without responsibility on the part
of the Auctioneers or Seller and are statements of opinions and are not to be taken as or
implying a statement or representation of fact. Any Purchaser shall be deemed to have
satisfied himself by inspection or otherwise as to the correctness of each statement
contained in the Particulars. Neither the Seller nor Auctioneers make or give any
representation or warranty in relation to any aspect of the Lot nor have the Auctioneers
or any person in the employment of the Auctioneers any authority to do so on the Sellers
behalf. The Purchaser acknowledges that he does not place and has not placed any
reliance whatsoever on any statements or representations, in writing or otherwise, made,
or alleged to have been made by or on behalf of the Seller.
17. Applicable Law
The Law of Scotland shall apply to the interpretation of these General Conditions of Sale
and any Minute of Preference and Enactment following hereon, and the Articles of Roup
and the Seller and the Purchaser, by subscription of the relevant Minute of Preference
and Enactment, will thereby prorogate the jurisdiction of the Sheriff Court in Scotland
and bind themselves to submit to the jurisdiction of the said Sheriff Court in relation to
all actions arising out of these presents.
18. Arbitration
If any questions arise regarding the true meaning and intent of the Articles of Roup or
the Minute of Preference and Enactment or the rights and obligations of the parties
under the same or otherwise affecting the Lot, every such question shall be submitted on
the application of either party to the amicable decision of any arbiter having experience
in residential or commercial property as the case may be to be appointed by the
President of the Law Society of Scotland, whose decision shall be conclusive and binding
on all concerned. The terms of Section 3 of the Administration of Justice (Scotland) Act
1972 are expressly excluded.
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