By Anne Rodell; College of Law (England and Wales)
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Extra info for Commercial property. 2013
In drafting the contract, the seller’s solicitor should make it expressly clear which type of agreement is intended. If the former type of contract is used then, despite the fact that the parties have entered into a written agreement, effectively they will still be in the same position as if negotiations were continuing since, until the condition has been satisfied, no binding contract exists and either party is free to back out. The condition must be fulfilled before any part of the contract comes into effect.
If the property investment turns out to be a very bad one and the SPV becomes insolvent, the other interests of the shareholding companies are protected. Another reason for choosing an SPV is that on completion of the development, it is possible to transfer ownership of the property by selling the shares in the SPV company, rather than by transferring the property itself. The benefit of this comes from the way stamp duty is charged. Stamp duty land tax (SDLT) is paid at the rate of 4% of the purchase price for all property costing more than £500,000.
This type of clause may not be favoured by the buyer since it leaves scope for argument. If the buyer is not prepared to complete without the benefit of planning permission for the type of development he proposes to carry out on the property, the contract could be made conditional upon the receipt of an ‘acceptable’ planning permission by a stipulated date. Again, the buyer should be obliged by the contract to submit a valid planning application without delay, to serve the correct statutory notices, and to pay the fees for the application.