It has been estimated that at least 250,000-300,000 new homes a year need to be built in order to meet the UK housing shortage, and all major political parties are agreed that housebuilding is a priority. One of the reasons demand has outstripped supply is the apparent lack of suitable land in desirable areas on which to build.
Farmland is valuable, but farmland with residential planning permission is even more so. It is no wonder then, that many landowners are tempted to sell for development. Here we look at some of the main points to consider.
- First, find experienced professional advisers. Arranging the deal yourself to avoid fees is almost certainly a false economy. An experienced agent, a solicitor and importantly, an accountant, are all essential before any sale negotiations are begun. Developers will have strict criteria for the land they wish to purchase in order to maximise their own profits, so obtaining the correct advice at the start will help ensure you can offer land for sale in the most appealing way to the developer and lucrative way for yourself.
- Get Proper Tax Advice. This is an absolute, and again must be done early on in the procedure. Professional advice is needed to structure the transaction in the most tax efficient way, making the most of any reliefs and exemptions that may be available. Income Tax, Capital Gains Tax, Inheritance Tax, Value Added Tax and Stamp Duty Land Tax are all taxes which may need to be considered and planned. Many developers will want to certain that the seller has obtained professional tax advice before exchanging contracts.
- Promotion Agreements. Agreements of this type are arguably now more popular amongst developers than traditional option agreements. They allow the promoter, often a developer or specialist planning consultant, to apply for and obtain planning permission at their own cost. Once planning consent is obtained, the landowner must sell and the promoter receives their fee out of the proceeds. BHW has produced a detailed article on this type of agreement. Landowners will need to negotiate to protect their interests under these agreements and specialist advice is essential. One of the points to consider is how long you are prepared to be tied into such an agreement.
- Overage. Put simply this is a right to receive future payments in respect of land which has been sold. It is sometimes known as a clawback. The right is triggered by the happening of a certain event, in this scenario often the grant of planning consent for development. There are many issues to consider here, beyond the scope of this note, but landowners need to think about what will constitute the trigger event, how long the overage agreement should last for, what the obligations of each of the parties should be, how the payment should be calculated and how this payment should be secured.
- Get your title sorted. This may seem obvious, but title issues will deter developers and delay sales. Unregistered land, missing documents, restrictive covenants, boundary problems, lack of easements, or rights of access or rights of way- these can all be resolved but it is better to address the issue early and ensure the title is good and marketable. Does your land have direct access to the adopted highway? This is one of the key things developers look for.
- Mortgagee’s consent. If your land is subject to a legal charge you will require the lender’s consent to the sale. If you are selling off part of a larger parcel of charged land you will need to obtain a release. This might mean the renegotiation of your financial arrangements, which again, is sensibly addressed early in the transaction. Speak to your relationship manager and your solicitor.
- Environmental issues. Contaminated land is what springs to mind when environmental issues are mentioned, but in this scenario, what is most likely are potential flooding or drainage problems. A history of flooding or waterlogging is clearly not going to be welcome news for a developer, but equally if the land has been used for potentially contaminative uses in the past or is near to sources of contamination, remember that remedying any actual contamination is costly and will significantly affect the value of the land. Any past surveys or reports that have been carried out should be to hand if required.
- Planning Consent. This will be needed before development is begun, but who obtains it is a question for landowners. Embarking on the planning process at your own risk can pay off, but it is a gamble and we recommend that you speak to either a surveyor, a planning consultant or a planning officer at your local authority to get an idea as to whether or not an application for consent for development would be successful. Many such applications will go to appeal. Is the planning consent you obtain going to be the one developers need? This is why many landowners enter into promotion agreements or conditional contracts which oblige others to apply for planning, as they often have a greater chance of success on the right terms. Be aware though, that extensive price negotiations can take place once planning consent is obtained, and the actual net development area can be calculated. This will take into account any ‘extra’ costs such as wildlife surveys or ground investigations that are required as a result of the planning conditions.
- Informal rights of way. You will probably be aware if a footpath crosses part of your land. But is anyone else using your land on a casual basis, particularly without your permission? Through long use, these can establish prescriptive rights and if successfully proven will have an adverse effect on the value of land and the ability to develop.
- Tenants. Informal arrangements with tenants can also pose a problem when it comes to selling. If you let any buildings to business tenants they should be on proper leases which are contracted out of the security of tenure provisions of the Landlord and Tenant Act 1954. Any residential tenants should be on Assured Shorthold Tenancies. For agricultural tenants, make sure they are on licences if appropriate or Farm Business Tenancies under the Agricultural Tenancies Act 1995. Bear in mind the long notice periods and that compensation may also be due for these tenants. Agricultural tenancies that were granted before 1 September 1995 are likely to have lifetime security of tenure and if they predate 12 July 1984, successors can also be named by the tenant so that up to three generations can farm the same land. Compensation will also be payable on termination for any tenant improvements to the land. Again, it will help to have all the paperwork accessible and to hand.
If you have any questions about selling land for development, then please feel free to contact us via the form below or by calling 0116 289 7000, and a member of our Commercial Property Department will be happy to help.
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