# land sold subject to planning permission. permission refused.



## in the mire (9 Sep 2011)

A friend of mine sold land to a developer a few years ago subject to full planning for an estate of houses, a deposit was paid maybe 25% of value, but developer is gone in to NAMA and he failed to get planning after trying several times on the land, so my question is what happens the land, the developer (if he does not go bust) can maybe draw out the planning application for a few years until the industry turns etc or can the land be sold under instruction by nama etc to some other person/developer even though full price was not paid for it to the original land owner. or can the original land owner just claim it back?


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## callybags (9 Sep 2011)

Who's name is on the title deeds to the land?

If title was transferred to the developer, then the original owner would have no claim on the land.

There may be a debt owed depending on the wording of the contract of sale.


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## Complainer (11 Sep 2011)

What does your friend's solicitor think?


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## onq (11 Sep 2011)

This may refer to a process whereby a potential purchaser pays a fraction of the cost of the land (in this case 25%) as a deposit.
The owner grants him an exclusive legal interest which will permit him to complete the purchase at a future date.
The nature and term of this interest will be defined in the contract document.

The deposit does not usually confer full title or unfettered ownership.
It usually conveys a legal interest in the site sufficient to obtain a statutory approval (for example planning permission)

Full ownership is usually transferred following the payment of the balance owed, which itself may be contingent on something else.
This could be 
- the expiry of a fixed term (say, five years from the payment of the deposit)
- the arrival of a fixed date in time (any date in the future agreed between the parties) or 
- the achievement of a statutory approval (for example, achieving planning permission) or
- any combination of the above, or other terms.

The purchaser has to pay the balance of the full amount on or shortly after those dates and usually the deposit is non-refundable.
The deposit is the consideration the owner receives for granting the potential purchaser rights over the property.
These rights mean no-one else can benefit from the property during the term of the legal interest.

Usually the rights/legal interest of the potential purchaser may be _assignable_ at least once.
This may be required to allow the completion of the purchase and the subsequent sell on to a third party.
This may need to be carried out in a particular way on a single day so as to avoid certain liabilities to the Revenue Commissioners.

The potential purchasers rights normally expire after a set time.
It would be a very unwise person who would leave an arrangement open-ended, i.e. have no time limit _as well as_ the achievement of an approval.
In the present case, if the legal interest was time limited, it might expire after a certain date and the ownership may revert entirely to the original owner.
However, if there was no time limit beyond the achievement of a statutory approval the right could persist forever.

To answer your specific question, anyone who inherits or purchasers the right from the potential purchaser - including NAMA - could retain development rights over the land subject to paying the balance of the consideration to the original owner or his successors in title.

You need to talk to a solicitor well-versed in such dealings because, as you can see, its not a simple conveyance.
Happy to stand corrected on any of the points I have outlined above.
I've been advised about such deals colloquially - I'm not a solicitor.


ONQ

All advice on AAM is remote from the situation and cannot be relied upon                       as a defence or support - in and of itself -  should       legal        action    be      taken.
Competent professionals should be asked to advise in                       Real Life with rights to inspect and issue reports   on     the         matters    at      hand.


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## hastalavista (11 Sep 2011)

in the mire said:


> A friend of mine sold land to a developer a few years ago *subject to full planning* for an estate of houses, a *deposit* was paid maybe 25% of value, but developer is gone in to NAMA and he failed to get planning after trying several times on the land, so my question is what happens the land, the developer (if he does not go bust) can maybe draw out the planning application for a few years until the industry turns etc or can the land be sold under instruction by nama etc to some other person/developer even though full price was not paid for it to the original land owner. or can the original land owner just claim it back?



In the same way as houses can be bought subject to finance, the subject 2 above will, on the face of it, give the developer an out.
Likewise, depending on the paperwork, the deposit may be refundable or non refundable.
Its all down to the paperwork


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## Bronte (12 Sep 2011)

Presumably the contract has a clause that the sale is subject to planning and as planning has been refused builder would be entitled to get out of the contract and get his deposit back.


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## Brendan Burgess (12 Sep 2011)

We are all speculating here. As Complainer pointed out, your friend needs to talk to the solicitor who drew up the contract for sale. 

If something is sold subject to planning permission, presumably the title is not transferred until planning permission is received. 

As ONQ pointed out, it would be usual to have a time limit on such a contract and it would be usual to forfeit the deposit. 

So your friend might get the land back and gets to keep the deposit. 

But he has to ask his solicitor.

This hasn't that much to do with NAMA - that is a side issue.


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## nuac (12 Sep 2011)

It depends on the terms of the contract for sale.


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