DEVELOPMENT ISSUES
Whether you develop large mixed use schemes or residential extensions if you want your project to go smoothly there are legal issues that shouldn’t be overlooked.
Dewar Hogan supports commercial and residential developers faced with difficult legal issues and claims encountered during the development cycle. Identifying problems in advance by an appraisal is always desirable but for many developers it’s not always a priority. In any event not all problems are obvious until they present themselves. It is therefore important to be able to react to events speedily and effectively. It’s an important part of Dewar Hogan’s service to deal with contentious issues in the most appropriate way: whether it’s by making representations, negotiation, or litigation. There is no standard approach – there is no formula. The facts, priorities and agendas are often different.
In relation to some issues lawyers work alone but development work is different. In many cases other professionals are involved. Surveyors most frequently: relevant types include specialists in buildings, rights to light and party walls. There are also architects, town and country planners, letting agents, and licensing lawyers. Dewar Hogan has worked with many experts from these disciplines and can often make recommendations.
What sort of legal issues arise during a development? The following are common examples.
At the very outset it may be necessary to terminate tenancies, including those protected by the Landlord and Tenant Act 1954, and if possible to obtain agreements to surrender, and vacant possession. Timing and speed are usually important. Therefore lawyers need to be familiar with the court system (High Court and County Court) so clients can be advised on what they can realistically achieve and the implications of litigation.
The infringement of an adjoining owner’s right to light – or even just an allegation of infringement – may delay a development and result in a redesign. In particular the threat to make an application for an injunction either early or later can create a serious problem. Dewar Hogan can advise on the strategies available to neutralise the risk. If a right to light is likely to be infringed an adjoining owner may be prepared to release any right he has in return for compensation. Dewar Hogan is used to negotiating and agreeing deeds of release.
A development often causes a nuisance (in the ordinary sense of the word) to adjoining or nearby occupiers, which can give rise to the threat of an injunction and ambitious claims for damages. Again there are strategies for dealing with these situations which may eliminate or reduce the risk and/or provide a developer with costs and other protection in the event of litigation.
Other legal issues that come to mind in a development context include those relating to access, party walls, boundaries, and restrictive covenants.
Dewar Hogan is the only firm which specialises exclusively in advice and representation in relation to real estate issues and disputes. In many cases the firm works closely with its clients’ transactional lawyers in other firms. In full service law firms the transactional lawyers only have one choice when it comes to referring development and other contentious issues – their clients are referred to their real estate litigation colleagues irrespective of experience and cost. Dewar Hogan’s clients include successful private equity real estate investment and development businesses, developers, and private land owners. They have chosen to do it differently!
If you’re developing or planning to do so and you’re interested in discussing any of the issues that have been mentioned don’t hesitate to contact Ron Hogan, Jim Cotter, or John Cox.