Our expert team of property and land development lawyers work together with landowners and developers on all aspects of commercial and large residential developments. We can navigate you through every stage of the transaction, from acquisition to development and finally completion of the last plot sale.

Property development projects can be complicated and broad requiring an in-depth knowledge of the steps involved. With many years of experience, our development team understands that every project is different and we are adaptable to ensure we understand each client’s needs and the issues they may face.

At Birkett Long we work closely with the Corporate & Commercial Team. They assist with the setting up of management companies and we then deal with the transfer of amenity land.

Whatever the scope of your project, our team can assist. We provide specialist expertise with the following:

• Conditional contracts 
• Sale/Purchase of land for development – acting for large landowners and developers on the sale or purchase of land for development
•  Overage and clawback agreements 
• Option and pre-emption agreements 
• Promotion agreements 
• Planning documentation including Section 106 Agreements and Unilateral Undertakings 
• Plot sales – the setting up of selling/letting schemes

Our property and land development lawyers also work closely with our specialist construction lawyers.

Option and pre-emption agreements

Prospective buyers and sellers of land often wish to ‘lock in ’ the other party to the deal. This will normally involve the prospective buyer either giving the prospective purchaser an option to purchase the land or by granting them a right of pre-emption.
 
There are considerable differences between option and pre-emption agreements. An option agreement is an arrangement between a landowner and a “potential purchaser”, which gives the potential purchaser a legally binding option to buy the land. This option can be subject to the occurrence of a certain event, for example after a developer has obtained the necessary planning permission. The option will be available for a set period of time, known as the “option period”. If the option is exercised within the option period, the landowner must transfer the land under the terms of the agreement. If the deal is not completed within the option period, the option comes to an end.
 
Pre-emption agreements give a prospective buyer the right to be first in line if a landowner decides to sell the land within the pre-emption period. There is no obligation on the owner of the land to sell, and no obligation on the third party to buy the land.

We can assist you with the legalities of both option agreements and pre-emption agreements to ensure that the terms are documented correctly.

We have significant experience in this area of law, and can offer the following services:

• Drafting option agreements and pre-emption agreements
• Reviewing option agreements and pre-emption agreements
• Advising on the exercise/variation or cancellation of option agreements and pre-emption agreements

In addition we can also advise land owners and developers at an early stage in respect of agreeing draft heads of terms for option agreements and conditional contracts.

What are promotion agreements?

A land promoter effectively acts as the land owner’s agent and wishes to have exclusive use of the land owner’s property for a specific period of time for promotion, planning and marketing purposes.  The promoter will make applications for planning consent to increase market value and deal with disposal. The promoter has no right to buy the land, but would be entitled to a percentage of the sale proceeds as and when the land is sold.

Promotion agreements can be desirable to those wishing to develop a site in conjunction with others, spreading both the risk and financial cost of the venture between the parties involved.

Promotion agreements need to be comprehensive to enable both parties to adopt a clear strategy, so it is important for those involved to seek specialist advice when embarking on such an arrangement.  We recognise that our client’s needs and objectives will vary. Our team of land development lawyers have in-depth experience to draft the promotion agreement to reflect your specific requirements and  desired result. 

What does overage and clawback mean?

Overage allows a seller of land to benefit from any later increase in the value of land being sold, even after they no longer legally own it. This is often where land being sold is later developed, which results in the land increasing in value and a further sum of money being due to the seller.

Commonly, overage provisions are included in the legal transfer deed made between the seller and the buyer or,  a separate Overage Deed is used setting out the circumstances and payment obligations.

Whilst overage may be a good way of securing a deal, these clauses can be complicated, so careful drafting is essential to ensure that the overage works as intended by both parties. Whether you are a landowner or a developer, Birkett Long’s Commercial Property team will work with you to ensure the agreement represents exactly what you require.

It is extremely important that the overage payment is secured and enforceable.  We can advise in respect of the various mechanisms that can be used to secure the overage payment such as land registry restrictions, deeds of covenant mechanisms as well as legal charges.

Planning

Planning matters can be complex with legislation and guidance changing on a regular basis. Our solicitors have experience acting for developers, local planning authorities and landowners, so we can advise both businesses and individuals to help them achieve their desired result swiftly and efficiently.

When a significant planning permission is to be granted the relevant local authority will need to be able to regulate that planning permission and enforce the planning obligations against the owner of the land which is subject to that new planning consent.  The local authority will use either a Section 106  Planning Agreement or Unilateral Undertaking to achieve this and to bind the land which is to be subject to that new planning permission. 

We adopt a commercial and practical approach, and can provide expert assistance with:

• Section 106 agreements and variations
• Unilateral undertakings

What is a Section 106 Agreement or Unilateral Undertaking

The Section 106 Agreement or Unilateral Undertaking will cover the obligations of the developer/land owner which will usually include payments and contributions for instance towards education, healthcare and community facilities.  

The planning agreement will also regulate the open space areas that are to be comprised in the new development, how that is to be dealt with and whether there is to be a management company.  In addition the agreement will also regulate the number of residential units to be utilised for affordable housing and shared ownership purposes.  

The planning obligations are usually triggered by commencement of development  in accordance with the relevant planning permission, so it is important to understand when these payments are triggered especially if you are a landowner selling with the benefit of a planning permission which is subject to a section 106 agreement.   

It is extremely important for a developer or a land owner to understand the legal and practical implications of entering into such planning agreements and when the relevant planning obligations will be triggered. We can advise you in detail in this respect.

Small developers 

Our team are aimed at undertaking work for local housebuilders,  from site acquisition and site set up through to individual plot sale disposals, we carry these out at an affordable and competitive price.

Since 2019 we have been involved in sites with a combined value of £79 million. Additionally, we actively assist other sector specialisms, in particular Healthcare and Education. 

These areas are considered strengths of the team, as evidenced by some of our longstanding clients (Healthcare Homes, Colchester Institute, University of Essex, and Writtle University College).

For more information visit out Small developers page here 

Construction

Our team's broad range of construction legal advice and services includes drafting contracts, project support, dispute avoidance, adjudication, litigation and more. 
For more information visit our construction page here