Overage

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Overage is a seller’s right to recover additional payment(s) from a buyer at some point in the future, usually after completion of a sale under which the buyer has already paid an initial purchase price. Often this right is triggered by the occurrence of an event which (after completion of the sale) increases the value of the land (eg the grant of planning or completion of a development). ‘Overage’ and ‘clawback’ are interchangeable expressions. Overage may also be referred to as ‘deferred consideration’, ‘uplift’ or ‘kicker’.

Overage provisions can act in both parties’ interests, because a seller can share in future receipts or uplift in value and a buyer can defer payment until occurrence of the trigger event.

Overage agreements can be very complex to draft (as evidenced by the litigation that has arisen in relation to specific examples over the years). To some extent at least, every overage agreement must be bespoke to the particular

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Insolvency, declarations of trust, loan agreements, artificial asset protection, sham transactions, transactions defrauding creditors, interspousal asset transfers, change of position defence and wife’s entitlement to share of husband’s assets (Sayers v Dixon)

Restructuring & Insolvency analysis: The court held that six declarations of trust (DoTs) executed by the transferor (Mr Dixon) in favour of his wife (Mrs Dixon) constituted transactions defrauding his creditors within the meaning of section 423 of the Insolvency Act 1986 (IA 1986) and that two of them, purporting to transfer all his future assets and income to Mrs Dixon, along with an accompanying loan agreement, were shams which were void and ineffective. It set aside the DoTs and ordered Mrs Dixon to restore the value of three transferred properties (which had been converted into £551,589 cash) to Mr Dixon’s trustees in bankruptcy (trustees) together with interest of £101,726. It also ordered an account to be taken of the funds that had been transferred to Mrs Dixon or on her behalf by Mr Dixon over the seven years between the date of the DoTs and his bankruptcy. The court dismissed Mrs Dixon’s defence of change of position to the trustees’ claim for restoration, finding that even if such a defence were generally available (which is unclear), she had not acted in good faith and could not rely on it. It also dismissed her defence that, having been married to Mr Dixon for many years, she was entitled to half his assets and/or an entitlement to a share of them by virtue of a right to be maintained. Written by Jonathan Lopian, barrister at New Square Chambers, who acted for the successful claimants.

Court of Appeal on right to manage, strict procedural compliance and equitable tenancies (Avon Freeholds Limited v Cresta Court E RTM Company Ltd)

Property Disputes analysis: The Court of Appeal held that a right to manage (RTM) company’s claim notice was invalid because the company failed to comply with section 78(1) of the Commonhold and Leasehold Reform Act 2002 (CLRA 2002) as it failed to serve an equitable long lessee with a notice inviting participation (participation notice) before serving the claim notice. The Court upheld the Upper Tribunal (UT) (Lands Chamber)’s decision that a tenant of an equitable long lease during the ‘registration gap’ is a ‘qualifying tenant’ within s 75 2002 Act, provided that there is no legal titleholder of that lease. However, the UT had erred in holding that the failure to serve that qualifying tenant with the participation notice did not render the claim notice invalid on the facts of the specific case. Instead, strict compliance is required upon a proper interpretation of the statute, in particular ss 78(1) and 79(2). Written by Sophie Gibson, barrister at Landmark Chambers, junior counsel for the Appellant.

HM Land Registry updates Practice Guide 8

HM Land Registry (HMLR) has updated Practice Guide 8—Execution of deeds. Section 7 has been updated to provide further clarity on when a local authority must provide the attesting witness’ name or role.

The Building Safety Levy (England) Regulations—a quick guide

Construction analysis: The government laid the draft Building Safety Levy (England) Regulations before parliament on 10 July 2025. The draft regulations, made using powers conferred by the Building Safety Act 2022, propose the introduction of a levy on certain new residential developments. The proceeds will contribute to the costs of remediating building safety defects in England. The regulations prescribe the circumstances in which liability to pay the levy arises, who is liable to pay it, and how it will be calculated. In this article, we set out the context for these regulations, and summarise their key features.

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