We recently published guidance on Local Authorities “Call for Sites” for development and the process that entails should a landowner want to have their land allocated for development and thus increase value and marketability.
When selling land, it’s important that you will have worked with a good planner or land agent. As a result part of your property, farmland or estate is now allocated for development.
You may even have been approached by an agent or site finder and there is a red-hot buyer who wants to develop your land.
The last thing one wants is a long-protracted sale when selling land. This will increase both your legal fees and stress levels, and create worry that the buyer will walk away.
Many delays in property sales arise not due to a problem with the buyer or their finance (although some do) but because there are problems with the property being sold that take time to resolve, or indeed delays by the seller in dealing with essential pre-contract enquiries and providing information.
Whilst it is impossible to be sure that every possible impediment to a swift sale is removed, there are some simple steps every property owner can take to minimise the risks and some of the main ones are:
- Title. When selling land you have to prove to the buyer you are the legal owner. Check that you are! This sounds obvious but it is not uncommon in farming families in particular, to find that the property is in fact partnership property and the legal title is in the names of family members, some of whom will not be in the partnership. It is also surprisingly common to find a deceased proprietor still on the registered title. Whilst these are not complex legal issues they can sometimes take time to unpick and rectify. Liaise early with your solicitors who can quickly check the ownership at the Land Registry if the land is registered, or go through the deeds if the land is unregistered. We can then work out what needs to be done and let you know so you can instruct us to sort it out all in good time.
- Tenants. Is the land in question occupied by a third party, with or without a written agreement? This might be by way of an FBT, AHA tenancy or because the land is used for other purposes such as storage or work units. If it is, make sure each occupant has the correct form of tenancy and that any licences are actually that and not in fact a tenancy that may have security of tenure or require a long notice period to terminate. Just because there is no paperwork does not mean that there is no legal right for an occupier to stay! You may need to have any documents that you do have checked by a solicitor who will ask about the nature of the occupation. In some cases a deal may have to be done with occupiers to get them onto tenancy agreements that can be terminated when a developer buyer completes the purchase, or offer a premium to obtain a surrender and regrant to exclude the potential sale property. For example it is impossible to obtain possession of an AHA tenancy were the planning to affect part only of the tenanted land. In such a case a commercial deal has to be reached with the tenant. It is also not uncommon for commercial tenants to have stayed in occupation paying rent after their original tenancy ended and they now have security of tenure.
- Tax. Take accountants advice early on. A sale of land that is not one’s principle private residence will attract CGT, with various reliefs available. Make sure you have taken accountancy advice and put in place their strategy to minimise any taxable gain. Once a sale contract is in place it might be too late to make the best savings, and equally some kinds of sale structures may be more advantageous than others. Solicitors can put in place most sale structures that a good accountant will formulate but we need advance notice. Ideally some time before we get to the point of exchange of contracts!
- Finally and no least important, when your solicitor asks you to complete standard enquiry forms, or asks questions that have been raised by the buyer, be quick to respond! If you are struggling with the enquiries let us know and we can find a way through and keep the deal moving along.
You can contact our agricultural and selling land expert Elinor Davis for any questions about the process.