Investigate what is being acquired, what rights and restrictions affect it and which conditions must be satisfied before the developer becomes unconditionally committed.
In this workstream
01Who this may suit
- a developer negotiating a plot, building or redevelopment opportunity
- an investor acquiring a project company rather than the property directly
- a landowner contributing land to a joint venture
- a buyer whose acquisition depends on planning, finance or vacant possession
- a buyer dealing with several land articles, owners, heirs or occupiers
- or a lender requiring acquisition and title conditions before funding.
02When legal input usually matters most
Legal review is most useful before the buyer signs or pays under:
- heads of terms
- exclusivity arrangements
- a reservation agreement
- a promissory purchase and sale agreement
- a share purchase agreement
- a development or option agreement
- or any other document that restricts the buyer’s ability to withdraw.
A document described as non-binding may still contain binding provisions concerning exclusivity, confidentiality, costs, deposits, governing law or dispute resolution.
03Potential scope of support
Depending on the agreed engagement, support may include:
Ownership and authority
- registered ownership and acquisition history
- seller identity, capacity and representation
- corporate approvals and signing authority
- marital, inheritance or co-ownership issues
- powers of attorney
- and the seller’s authority to transfer the complete intended site or project.
Registry, tax and physical identification
- land-registry descriptions
- tax-register articles and patrimonial information
- comparison with survey, cadastral and planning information
- registered and measured areas
- autonomous buildings, units or parcels
- pending registrations
- and rectification, unification, subdivision or boundary work required before completion.
Legal documents do not replace a topographical or boundary survey. Material discrepancies should be coordinated with the relevant technical professionals and registration authorities.
Rights, charges and occupation
- mortgages, attachments and other registered charges
- easements and rights of way
- leases, licences and occupational rights
- rights of first refusal or pre-emption
- surface rights, usufruct or other real rights
- infrastructure and utility rights
- condominium or development-title restrictions
- and litigation or enforcement affecting the asset.
Public-law constraints
- planning history and urban titles
- permitted use and existing lawful construction
- subdivision or allotment conditions
- municipal plan classifications
- public easements and restrictions
- heritage, environmental, agricultural, ecological, coastal, water, road or infrastructure constraints
- municipal or other public pre-emption procedures
- and outstanding municipal obligations or infrastructure commitments.
The legal review should use the architect’s, planner’s, surveyor’s and environmental adviser’s findings where those disciplines are required.
Acquisition structure
- direct asset acquisition
- acquisition of shares or quotas in a project company
- acquisition of contractual project rights
- option, phased purchase or conditional purchase
- land contribution to a joint venture
- seller financing
- and coordination with tax and finance advisers.
An asset purchase and a share purchase transfer different legal risks. The appropriate due-diligence scope, warranties, tax treatment, lender requirements and completion mechanics may therefore differ substantially.
Transaction documents
- confidentiality and exclusivity
- heads of terms
- reservation documentation
- promissory purchase and sale agreement
- share purchase agreement
- deposits and payment arrangements
- planning, title, finance and investor conditions precedent
- access for surveys and investigations
- seller cooperation during planning
- long-stop dates
- default, termination and refund provisions
- warranties, indemnities and liability limitations
- completion deliverables
- and post-completion obligations.
Completion and registration
- satisfaction or waiver of conditions
- corporate and financing approvals
- tax payment evidence
- discharge or release of existing security
- public pre-emption formalities
- execution of the final transfer document
- funds-flow coordination
- property and corporate registrations
- beneficial-ownership updates
- and post-completion document control.
04Potential deliverables
The agreed work product may include:
- legal due-diligence report or red-flag report
- title and encumbrance schedule
- list of missing documents and required rectifications
- issues matrix coordinated with technical and planning advisers
- acquisition-term risk schedule
- drafted or negotiated acquisition documents
- conditions-precedent tracker
- completion checklist and funds flow
- and post-completion registration plan.
No engagement automatically includes every deliverable.
05What depends on the project
The scope and timing may change according to:
- whether the transaction is an asset or share purchase
- the number of properties, articles, sellers or occupiers
- the age and quality of registry and municipal records
- whether the boundaries are disputed or incomplete
- the existence of protected land or public restrictions
- whether the development rights already exist
- whether the purchase is conditional on a PIP or other planning outcome
- whether lender finance is required
- and whether the project is already under construction, pre-sold or operated.
06What acquisition due diligence does not do
- It does not guarantee that every factual or physical problem has been discovered.
- It does not replace surveys, structural investigation, environmental assessment, valuation or planning design.
- It does not turn an informal municipal indication into a binding planning right.
- It does not guarantee that a condition precedent will be satisfied.
- It does not guarantee finance approval or completion.
The review is based on the documents, searches, information and scope available at the relevant time.
07Frequently asked questions
Common questions developers ask at this stage.
Should the acquisition depend on planning approval?
Potentially. Where the viability of the transaction depends on a particular use, area, unit count, height or other planning parameter, the acquisition documents may make completion conditional on an agreed planning outcome. The required outcome, evidence, control of the application, appeal rights, long-stop date, costs and consequences of failure should be defined rather than left to a general reference to “planning approval”.
Is the land-registry area definitive?
Not necessarily. The land registry, tax register, survey, title documents and physical boundaries may not contain identical information. Material differences should be investigated before the project relies on a specific site area.
Can a deposit be paid before due diligence is complete?
It can be, but the contractual treatment of the deposit should be understood before payment. The document should address whether the amount is refundable, when it becomes non-refundable, what security exists, which conditions apply and what happens if the seller or buyer does not complete.
Does a favourable PIP prove title?
No. A planning decision and property title address different matters. A favourable planning outcome does not prove ownership, boundaries, access, absence of charges or the seller’s ability to transfer the asset.
Is acquiring the project company simpler than acquiring the land?
Not automatically. A share or quota purchase may preserve contracts and project rights but also exposes the buyer to the company’s historic liabilities. Corporate, tax, finance, employment, contractual and litigation due diligence may be required in addition to property review.
Can completion occur remotely?
Potentially, through appropriately documented representation and execution arrangements. The form, powers, certification, legalisation, translation and lender requirements should be confirmed for the particular transaction.
Legal support through VVA
Before you commit to a site or project
Once a site or project is identified, the focus shifts from general guidance to that specific transaction: title, planning position, licensing, charges, contracts and the holding structure.
Legal services are provided by Valente Veiga & Associados.