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Thread: Any property lawyers out there? An unusual problem.

  1. #1

    Any property lawyers out there? An unusual problem.

    As a contributor to the forum, I am the first to say "don't ask anonymous bulletin board contributors, take proper professional advice" but this is a case where legal advice has been taken and we've run up against a brick wall, so any suggestions would be welcome.

    A family member lives in a village within the Green Belt. There is a field of around 2 acres between her house and the next property. The owner of the field put in an outline planning application to develop a substantial number of houses and, although this was rejected, the 2 adjoining owners were worried by the potential impact on the village and their own properties in particular, if development were ever permitted in the future. The owner of the field then put the land up for auction, with the freehold being subject to an 'overage' agreement specifying that they would be entitled to a share of the increased value if the land was ever developed in the future. My family member and the owner of the property on the other side of the field got together and bought the land in their joint names. It has been divided down the middle and each party has annexed their half to their own property as 'amenity land'. So far so good. They now wish to divide the title so that each owns the part annexed to their existing property, rather than the whole being held in joint ownership. This will also be necessary if either party wants to sell their property as they do not currently own half each, but the whole in joint ownership.

    Now here's the problem. The original owners of the field, who had retained the 'overage' rights in the event of future development, have subsequently sold those rights to a third party. The division of the land and the registration of the ownership with Land Registry as two separate titles requires the agreement of the owner of the overage rights. Despite the fact that the current owners acknowledge the rights and understand that they would have to pay a proportion of the increased value if the land were ever developed, the owner of the 'overage' rights has refused to give his consent and is now not even responding to communications. The lawyers being used by my family member seem to have run out of ideas as to how to take this forward. Is there, as in leases, a concept that consent cannot be 'unreasonably withheld'? Any other ideas?

  2. #2
    I'm very definitely not an expert,
    but it seems to me that the overage rights will be worth less if the land is split because it makes development both less likely and less profitable. They may have been sold a pup. I'm not surprised that they aren't keen to agree.
    It's a complicated arrangement. I don't know if it would be possible for the joint owners to assign a long lease to each portion of the land. If it's agricultural land, there may be further issues to consider. If so, a solicitor specialising in this type of land deal would be the best option. Easier to find if it is in a truly rural area rather than suburban green belt.

  3. #3
    "If wishes were horses, beggars would ride" comes to mind. It sounds like your relative intended to do this but didn't check out the legality first in the hope of blagging their way to what they wanted. It didn't work. Stop trying to game the system.

  4. #4
    Presumably the present owners , who purchased the property subject to the overage clause , were advised by their solicitor of the implications.
    Fully understand the owner of the overage clause will not allow changes.
    The owners could try to buy-out the overage. The value will clearly depend on the chances of PP being acheived.

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