As a property practitioner, understanding the particular challenges of overage and clawback is an important skill given the volume of litigation in recent years. This is an advanced course providing a robust overview of overage and clawback provisions, and how to manage your clients’ needs and expectations.
Whether you are a solicitor or other practitioner dealing with commercial or residential property, you need to know how overage and clawback work in practice, and how they affect your clients.
Dealing with overage successfully can be demanding but rewarding work. However, when required to deal with overage in practice, you need to exercise particular skills including commercial acumen, creativity and attention to detail. You also need to exercise robust drafting skills, while at the same time being able to anticipate alternative interpretations of the provisions, possible future events, and consideration of potential avoidance mechanisms.
Unfortunately, in practice solicitors are often blamed for bad drafting, or not thinking about future issues, leading to the risk of a dispute. Our well known and experienced property expert, Hannah Mackinlay, will take you through the key principles of overage and clawback and guide you through the specific challenges.
Key learning outcomes
- Understand the challenges of overage and clawback
- Robustly and effectively draft overage provisions
- How to correctly calculate overage payments and stamp duty tax liability
What does this course cover?
This course provides practical guidance to help you manage client expectations, and highlights the pitfalls, and issues you need to consider when drafting, including:
- Managing client expectations
- Types of overage situation, including surplus company land, agricultural sale off, and public body sales
- Methods of securing payment
- Charges, restrictions, ransoms, restrictive covenants, leases; and the pros and cons of each method
- Trigger events and avoidance techniques such as planning, construction, sale, and use
- Drafting clauses effectively
- Duration, discharge or assignment
- How many bites of the cherry
- 'No disposal' situations
- Changes in control
- Disposals of part
- Getting the formula right on overage calculations
- Double counting of deductibles: Community Infrastructure Levy (CIL), infrastructure, etc
- Thinking the unthinkable; and avoiding avoidance
- Good faith provisions
- Buyer's obligations
- Pre-emption rights
- Lender issues: postponement of liens and priorities
- Intercreditor deeds
- Stamp Duty Land Tax (SDLT) liability of overage payments
- Learning from others' mistakes: latest case law