A sale of part is when you are planning to only sell part of your property or land. There are far more considerations to take into account for a sale of part than if you are selling the whole thing. Initially, for example, the basic requirement for a sale of part is for the area being sold to be clearly defined, which will need to be done with a Land Registry compliant plan. This is not usually necessary for a transfer of whole.
Why choose a sale of part?
There are many reasons why you may consider buying or selling only part of a piece of land, such as in new build estates where the developer owns the whole development and you are purchasing one house. That purchase will result in a sale of part only of the developer’s estate, and various possibilities will need to be considered to ensure you have the necessary rights to enjoy your new home. Likewise, the developer will want to ensure there are necessary restrictions in place to protect their interest in the remaining estate. Other possibilities where a sale of part may be required are when a parcel of garden land is sold to a neighbour, or if an owner of a large area of land sells part of that, often for development purposes.
How is a sale of part treated differently?
Whatever the reason a sale of part is required, and whether you are the seller or the buyer, you will want to ensure you are adequately protected. From a buyers’ perspective, you will want to be sure that you can use and enjoy the land you have just purchased. As a seller, you will want to know you can continue to use and enjoy the land you have retained.
If the property is registered, a sale of part will consist of separating that title number into two or more independent titles. Each title will need to ensure it has the necessary rights, easements, restrictions or other encumbrances to perform its intended function.
There are various factors to consider, and these will depend on your own personal requirements and the type of land that makes up the sale of part. These factors will be looked at in more detail below, but they can be categorised as follows:
- Absolute requirements – items that are absolutely necessary in order for you to use the land for its intended purpose;
- Ancillary requirements – items that wouldn’t be necessary on their own (indeed, these rights are often unlikely to make much sense on their own), but are required to support an absolute requirement; and
- Personal requirements – these are items that are specific to you and are not necessary for the use and enjoyment of the land but they may still be important to you.
If you are purchasing, the very first things you should consider are factors that are absolutely necessary for the use of the land being purchased. These are matters like access to the property, both for yourself and access for necessary utilities. If you are purchasing a piece of land that you can only reach by traversing someone else’s property, such as a landlocked section of land, you will need to consider how you will access your property once the purchase is complete. This may mean ensuring there is a right of way over the land being retained by the seller, which grants you a right of access over their land and onto your own. This can be a right reserved for you solely, or it can mean a shared accessway with the owner of the retained land. Either way, if this is not dealt with before buying, you could end up being prohibited from getting to and from your new property.
There are other requirements equally as important as access, such as drainage and utilities. Each of these, and more, will need to be considered for each transaction to make sure the property has everything it needs to function for its intended use. It is important here to consider everything you will want to use the property for, and then make sure the sale documents adequately provide for these to take place. This may even require you to consider any potential future uses you may have for the property.
With each necessary factor may come an additional requirement, which would have no relevance on its own but may need to support a right that is essential for the use of the property.
To use the above example of the shared accessway, once the right has been provided for, you will further need to consider who is responsible for maintaining and repairing the accessway, and how that party will go about the repairs. How will the costs of the repair be apportioned? How often will the repairs need to be carried out? These extra considerations are only necessary because of the shared accessway, but nevertheless, they will need to be dealt with to clarify the position before you complete the purchase.
Beyond the matters that are absolutely required for the use of the land, you as a buyer or seller may have your own preferences and requirements. These may not be necessary to use the land, but they will still be important enough for you to ensure they are provided for.
An example of this may be that you live somewhere containing a large portion of open land. You may choose to sell a part of this land but only if you can guarantee that nothing is built that will detract or ruin the view you have from your home. In this case, you may want to include a clause that prevents the buyer from building anything in a certain area on the piece of a land being sold. This is not essential for you to use your retained land, but it is something that would prevent you from selling the land if it was not provided for. It is therefore important to ensure all aspects and all requirements are considered to protect your interests and wants.
Some encumbrances may also be implied, meaning that if no provisions are made in the sale documents and a conflict arises later, the court will imply that certain rights are granted or reserved. These rights must be continuous and readily apparent, and they must also be necessary for the property to be used and enjoyed at the time of the sale. This is not something to be relied upon, however, and so it is still important to ensure that everything you need or want to be included in the sale documents is done so at the appropriate time. This will clarify the position and mean the parties should not need to rely on a court’s intervention should a conflict arise at a later stage.
Careful consideration, therefore, is always important when dealing with a sale of part, whether you are buying or selling that part. If you would like further information regarding a sale of part, please contact Commercial Property Solicitor, James Bryce on 0116 289 7000 or email firstname.lastname@example.org.