Condition entered into site purchase contract after we have signed - advice please!

FiOT

Hi there,

I was advised by the moderator in construction/planning to post my query here too.

Just a quick question that I hope someone can shed some light on.

We have signed the contract for a site we wish to purchase having been granted planning permission on the site recently (purchase subject to planning).
The contract has gone back to the vendors solicitor who has now contacted ours to say the vendor wants to put in another condition to state that we may never object to any future developments on any of his remaining land.

I don't feel comfortable with this condition in the contract as we have already signed and he is now trying to enter it unilaterally and we feel pressured to sign because we have put so much work and money into the whole process so far.

My parents are saying don't accept it, solicitor is saying we may lose the site if we don't and were stuck in limbo not knowing what to do!

Advice welcome!!

whippet

it seems fairly straight forward .. either you accept or don't.

However, this does not mean that other people can't object to any further planning applications or that any further planning applications will be successful.

Looking at it from a vendor point of view, it could be a case that they have a couple of sites to sell off, you are one of a potential number of buyers and they are looking to ensure that you don't attempt to block future site sales.

DOCARCH

I've jumped over from C&P. I suggested the OP post here.

Just to clarify, the vendor issued the contract for sale, the OP signed the contract and now, after the signed contract has been returned to the vendor, the vendor wants to change the terms of contract/add a condition.

Seems odd to me? As far as I would be concerned, the vendor has missed the boat on that one? Maybe I am wrong?

Carawaystick

I'd check the wording of the no objections clause.

One usually just pays your fee to the planning authority and make "observations" on a planning proposal, rather than "objections"

And anyway anyone can make an objection on you behalf.

SmartinMartin

I would accept, and if the need ever arose my brother or sister would lodge an objection/observation on my behalf.

Victor

DOCARCH wrote: »

Seems odd to me? As far as I would be concerned, the vendor has missed the boat on that one?

A contract for the sale of land is (normally) only enforceable against a party after they have signed it. The vendor hasn't signed it.

There are other concepts like equity. That the OP has spent money on a planning permission (architect, planning fess, etc.) might work in the OP's favour, but the contract they have signed (which is enforceable against the OP) probably has conditions against this.

The worst that can happen is that some future owner of the adjacent land builds a housing estate, pig unit, nuclear power plant, etc. next door to the OP. Potentially, some horse trading needs to be done, possibly along the lines of clarifying the proposed amendment, such that it has a time limit of X years and that while the OP won't object to a certain amount of housing or land management, but that they can object to changes or land use, while the land is in the ownership of the vendor.

Of course, the OP could make an 'observation' instead of an 'objection' to any future planning application. Or an acquaintance of theirs could make an objection.

billy few mates

As previous posters have said you don't object to a planning application, you 'comment' on it and all comments must be considered as part of the planning process as indeed any appeals to an Bord Pleanala so regardless of what 'agreement' you come to with the vendor there's nothing in the planning process stopping you from commenting on any applications he makes. I don't know how he could enforce such a clause if you chose to ignore it in the future.

Peregrinus

Well, except if somebody who lives somewhere else comments that the development will injure the amenity of neighbouring properties, that comment doesn't carry anything like the same weight with the planning authority as it would coming from someone who actually lives in one of the neighbouring properties.

OP, ask yourself, if this condition had appeared in the contract when it was first sent to you for signature, would you have signed the contract or would you have negotiated for its removal or limitation? Or would you have simply walked away? Whatever you would have done then, do now.

davo10

Op, is it possible you benefitted from the same clause being agreed by the owners of the site on the other side of you? Perhaps they agreed to the same clause when buying their site which in turn allowed you to get planning without objections from them.

Peregrinus

davo10 wrote: »

Op, is it possible you benefitted from the same clause being agreed by the owners of the site on the other side of you? Perhaps they agreed to the same clause when buying their site which in turn allowed you to get planning without objections from them.

If the plot offered for sale to FiOT benefitted from such a condition, almost certainly the vendor would have pointed this out, since it would make the plot more attractive, and therefore more saleable.

FiOT, it's a complete pain that the vendor has waited until this point to demand that condition, but that doesn't really change the fundamentals of the question: would you be happy to buy the land subject to that condition? If not, negotiate for a condition that you will accept, and make it plain that you are willing to walk if you do not get an acceptable outcome. The vendor may be attempting to railroad you; do not allow this to happen.

davo10

Peregrinus wrote: »

If the plot offered for sale to FiOT benefitted from such a condition, almost certainly the vendor would have pointed this out, since it would make the plot more attractive, and therefore more saleable.

FiOT, it's a complete pain that the vendor has waited until this point to demand that condition, but that doesn't really change the fundamentals of the question: would you be happy to buy the land subject to that condition? If not, negotiate for a condition that you will accept, and make it plain that you are willing to walk if you do not get an acceptable outcome. The vendor may be attempting to railroad you; do not allow this to happen.

Does op have a choice if the vendor hasn't signed the contract? If op doesn't sign it, do both parties walk away? It would seem a win win for the vendor, the vendor puts the site on the market again with planning, the op has to start again, out of pocket the costs of the planning.

Peregrinus

Yes, has a choice. He can't enforce the unsigned contract against the vendor. But he can choose between (a) accepting the condition the vendor seeks, (b) bargaining for a more acceptable condition (along the lines Victor suggests) or a reduction in price or (c) walking.

In seeking planning permission for a site that he did not own and had no contract to buy, the OP was running the risk that he would end up enhancing the value of the site, but not actually acquiring it. That unhappy event has now occurred. But that doesn't mean that, to recover his investment in securing planning permission, he now has to buy the site on terms that he does not like. The diminution in value of the site which stems from the fact that it might end up with a piggery, tallow chandlery and knacker's yard next door may be greater that the money already spent securing planning permission. If so, the rational course is to write off his investment in securing planning permission, and chalk it up as the cost of a lesson learnt for the next time.

There's also the possibility of some kind of action (or threat of action) against the vendor based on unjust enrichment, quantum meruit, something of that kind. Frankly, on the bald facts stated I'm finding it hard to see that such an action has much chance of success, although really no opinion is worth anything on this point until there has been a forensically detailed examination of the facts from go to woe, the correspondence, etc, etc. But the mere threat of proceedings, however uncertain, which might hold up attempts to sell the land to others might help to bring the vendor to negotiate about a reasonable and realistic condition regarding future development of the adjacent land.

Carawaystick

The OP can still get some one to object on their behalf, and use the address of the OP's home. There is no address verification on observations to the planning dept.

Peregrinus

Carawaystick wrote: »

The OP can still get some one to object on their behalf, and use the address of the OP's home. There is no address verification on observations to the planning dept.

But I think the applicant would be in a position to know that the the commentator did not live at the claimed address, and would point this out, and that would seriously devalue the comment.

In brief: I wouldn't accept this condition in the expectation that by some smart-assery I could get around it. I think that's just a comforting delusion. Do not sign the condition without accepting that, yes, it really will impede your ability to object effectively to planning applications on the vendor's land.

nuac

Carawaystick wrote: »

The OP can still get some one to object on their behalf, and use the address of the OP's home. There is no address verification on observations to the planning dept.

that is not always true.

Either the planning authority or the developer may check out any observations made

godtabh

Peregrinus wrote: »

But I think the applicant would be in a position to know that the the commentator did not live at the claimed address, and would point this out, and that would seriously devalue the comment.

The only thing that devalues a comment is the comment itself. I've dealt with applications where 200 people sent in the same observation that was copied and pasted from a flyer that was sent out to local residents.

Each and every one of the observations had to be read as there was slight variations in some and extras added to others.

Carawaystick

Peregrinus wrote: »

But I think the applicant would be in a position to know that the the commentator did not live at the claimed address, and would point this out, and that would seriously devalue the comment.

Do applicants get a copy of observations before a LA makes a decision on planning?

coylemj

Say the OP agrees to the condition being included in the contract, buys the site and builds his house, then a year later the vendor lodges a planning application for a tannery next door and the OP lodges a comment/observation/objection in his own name, what can the vendor do about it? The planning authority can't be forced to ignore the application by virtue of that clause in the contract surely?

Unless someone can show how it would legally prevent the OP from lodging an objection, I'd be of the view that the condition is being included to put the OP off the deal and leave the vendor with an enhanced site (now with PP) to sell.

Doesn't a condition included in a contract have to have some sort of defined penalty/redress written in to make it enforceable?

Fred Swanson

This post has been deleted.

JimsAlterEgo

OP, sign the contract if you want the house? highly unlikely this clause would be enforceable, and nothing to stop you getting someone else to object on you behalf. That said, I would be a little concerned as to what they have in mind if they want to try and put something like this in.

What is your solicitor advising you to do?

Johnboy1951

Get your solicitor to clarify if the clause as written would mean anything 'in practice' when it comes to making an observation on any future planning application.

Mr. Incognito

What does your solicitor say?

Victor

Carawaystick wrote: »

Do applicants get a copy of observations before a LA makes a decision on planning?

All observations are on the public file. Many councils put them online (less certain personal information).

Observations must be made within 5 weeks of the planning application. The decision isn't made until week 8. the applicant may be able to submit additional information in the mean time

Peregrinus

godtabh wrote: »

The only thing that devalues a comment is the comment itself. I've dealt with applications where 200 people sent in the same observation that was copied and pasted from a flyer that was sent out to local residents.

Each and every one of the observations had to be read as there was slight variations in some and extras added to others.

They may all be read; it doesn't mean that they all all carry the same weight in the planning authority's decision.

If somebody who lives miles away objects that the proposed development will impair the amenity of the adjacent property, Blackacre, whereas the people who actually live at Blackacre make no adverse observations at all, I think that's telling. The decision-makers will notice that the people who live at Blackacre haven't objected, and don't appear to be concerned about any impact the development will have on their amenity.

Serjeant Buzfuz

Peregrinus wrote: »

Yes, has a choice. He can't enforce the unsigned contract against the vendor. But he can choose between (a) accepting the condition the vendor seeks, (b) bargaining for a more acceptable condition (along the lines Victor suggests) or a reduction in price or (c) walking.

In seeking planning permission for a site that he did not own and had no contract to buy, the OP was running the risk that he would end up enhancing the value of the site, but not actually acquiring it. That unhappy event has now occurred. But that doesn't mean that, to recover his investment in securing planning permission, he now has to buy the site on terms that he does not like. The diminution in value of the site which stems from the fact that it might end up with a piggery, tallow chandlery and knacker's yard next door may be greater that the money already spent securing planning permission. If so, the rational course is to write off his investment in securing planning permission, and chalk it up as the cost of a lesson learnt for the next time.

There's also the possibility of some kind of action (or threat of action) against the vendor based on unjust enrichment, quantum meruit, something of that kind. Frankly, on the bald facts stated I'm finding it hard to see that such an action has much chance of success, although really no opinion is worth anything on this point until there has been a forensically detailed examination of the facts from go to woe, the correspondence, etc, etc. But the mere threat of proceedings, however uncertain, which might hold up attempts to sell the land to others might help to bring the vendor to negotiate about a reasonable and realistic condition regarding future development of the adjacent land.

Seems fairly clear on the facts disclosed, offer & acceptance = concluded contract, no addons allowed without your consent

Peregrinus

Serjeant Buzfuz wrote: »

Seems fairly clear on the facts disclosed, offer & acceptance = concluded contract, no addons allowed without your consent

It's a contract for the sale of land; it has to be evidenced in writing, signed by the party against whom it is to be enforced.

The vendor sent out an unsigned contract containing certain terms. That's an invitation to treat. The purchaser signed the contract and returned it to the vendor; that's an offer to purchase on the terms of the contract. The vendor could accept that offer by signing the contract, unaltered, and returning one copy to the purchaser.

But that hasn't happened. The vendor has indicated that he won't sign unless an additional condition is inserted. That's not acceptance; that's a counter-offer, which the purchaser can now accept or reject.

FiOT

Hi All,

Many thanks for all of the advice over the past few days. We decided that it just wouldn't sit well with us to have the condition in our contract whether it was enforceable or not so we got our solicitor to send a letter saying that we would not allow any further changes to the contract.

Today we heard..... HE'S SIGNED IT!! We're so happy, over the moon to finally own our little piece of land and can now move on with our build. One little victory for now

Thanks again to everyone, your advice gave us the confidence to stand up for ourselves!