Structure Reasons for the developer to form a JV There are a number of reasons why the developer may wish to enter into a JV in relation to a development project such as: • sharing risk with another party and placing specialist risk with the relevant JV party • combining specialist knowledge and expertise to leverage resources on a larger scale and for greater returns • gaining access to particular market knowledge from a party with specialist market experience outside of the developer's normal course of business From a developer's perspective, it should be mindful not to over-complicate the JV structure where this may fetter its management of the development process beginning with the acquisition of land at the outset, continuing through the construction phase, and finally when making disposals following completion. For example, a more traditional contractual relationship (such as a development agreement) may be more appropriate where the objective of sharing in profits can be achieved through overage arrangements. In those circumstances, this may allow the developer more freedom and flexibility

Structure This Practice Note assumes that the funder is only providing funding to the JV (ie a loan of cash where the loan will be repaid with interest). However, if the funder is seeking to be a party to the JV, see Practice Note: Property development joint ventures—acting for an investor in which a funder's position as an investor is considered. Similarly, if the funder is to forward fund the development (known as a ‘forward funding’ or ‘forward sale’), the funder will normally acquire the property in its own right and grant the developer a licence to carry out the development works. This is, ultimately, an investment by the funder, with its return coming from lettings or other disposals of the completed development. This, in its strictest sense, is also not a joint venture and can be structured contractually through a forward funding agreement or forward sale contract. For further information, see Precedents: Forward funding agreement and Forward funding agreement between the fund and the developer, part pre-let, design and build procurement, with existing

Structure Reasons for the landowner to form a JV There are a number of reasons why a landowner may wish to enter into a JV in relation to a development project, such as: • sharing risk with another party and to place specialist risk with the relevant JV party and in particular placing such risk with a developer • the landowner wanting a greater return for the land disposal over and above a simple land receipt with overage structure — the landowner may not have the knowledge and resources to develop the land itself, but can share in the upside to a greater degree in a JV relationship because while the risks may be greater, the profits could be higher in light of the risks taken From a landowner's perspective, it should be mindful not to over complicate the JV structure and so expose itself to greater risk and liability — particularly if it does not have the skill set and/or resources to manage a developer and/or investors in a JV. For example,

Structure Reasons for the investor to form a JV There are a number of reasons why an investor may wish to enter into a JV in relation to a development project. These include: • allowing several investors to participate together – for example, the development involved may be too large and expensive for an investor to invest in it alone (this may necessitate establishing a structure which sets out an agreed strategy and allows investors to have rights of control and influence depending on the relative sizes of their investments) • sharing risk with another party (including other investors) and also to place specialist risk with the relevant JV party (including a developer) • combining specialist knowledge and expertise to leverage resources on a larger scale and for greater returns • gaining access to particular market knowledge and experience which is outside the investor's normal course of business but is possessed by one of the other JV parties For the purposes of this Practice Note it is assumed that the investor is

This Practice Note identifies the property elements of the disclosure exercise that is carried out by a seller in connection with the sale of shares in a company (the 'target') or the assets of a business. It contains details of the disclosure letter and disclosure bundle, together with practical implications for the property solicitor to consider when acting for a buyer or seller. The seller’s property disclosure exercise aims to qualify the property warranties in the asset or share purchase agreement, therefore ensuring that the seller avoids liability for breach of warranty. Where the matter has been properly disclosed, the buyer is unable to sue. From the buyer’s perspective, the disclosure exercise enables the buyer to elicit information relating to the properties owned, used or occupied by the target or business. The buyer must then take a view on the significance of the disclosures and may consider a price renegotiation, further protection in the form of property indemnities or even to withdraw from the acquisition completely. The disclosure letter The seller discloses information against the

This Practice Note considers property disputes in Scotland arising: • in delict • under the Occupiers’ Liability (Scotland) Act 1960 (OL(S)A 1960) • under consumer rights legislation • in relation to defective premises and the time limitations for claims under the Prescription and Limitation (Scotland) Act 1973 (PL(S)A 1973). Statutory repair obligations in respect of agricultural and residential tenancies are not covered. Obligations in relation to property may arise broadly: • by force of law (statutory—see further: Obligations arising by force of law: Stair Memorial Encyclopaedia [2]) • from a wrongful act (delictual—see further: Obligations arising from a wrongful act: Stair Memorial Encyclopaedia [3]), and • voluntarily (eg unilateral and contractual undertakings—see further: Voluntary obligations: Stair Memorial Encyclopaedia [4]) Delictual obligations arising from a wrongful act Delict is the area of law which deals with legal wrongs. It is the equivalent of 'Tort law' in England, see further: Differences between Scots and English law: Stair Memorial Encyclopaedia [166] and Practice Note: What is a tort? Unlike contractual liabilities,

The most common types of delict to arise in property disputes are negligence, nuisance and trespass, see Practice Notes: Property disputes in Scotland (delictual and statutory) and Property disputes in Scotland—negligence and trespass. Nuisance is the term used to cover any use of land which disrupts a neighbour's enjoyment of their property. Examples of uses where the remedy of nuisance may be relevant include uses: • causing unpleasant smells and odours • producing noise • causing flooding of a neighbour’s property In Scotland, nuisance is divided into common law and statutory nuisance. Common law nuisance—invasion of interest in the use and enjoyment of private land At common law, nuisance is broadly defined as ‘an invasion of an interest in land’ and liability is determined by reference to a test of ‘reasonable tolerability’ which will depend on the circumstances of the case and may vary depending on factors such as the locality, impact, frequency and utility of the conduct in question, see: The nature

This practice note considers property disputes involving negligence and trespass. For consideration of statutory liability relating to property and the law of nuisance, see Practice Notes: Property disputes in Scotland (delictual and statutory) and Property disputes in Scotland—common law and statutory nuisance. Negligence Claims of negligence in property matters typically relate to situations where poor property advice has been given by a professional such as an architect, surveyor or conveyancer or poor building work has been performed by a contractor such as builder, roofer or plumber. Negligence imposes liability for loss or injury caused by carelessness or a lack of reasonable competence by the professional or contractor involved. What is the test for negligence? Negligence comprises a three-fold test of whether: • a duty of care exists • the duty has been breached • the breach of duty has caused the loss or harm complained of See further: The rise of the concept of duty of care: Stair Memorial Encyclopaedia [257], The importance of Donoghue v Stevenson: Stair Memorial Encyclopaedia

This Practice Note provides a summary of the purpose, nature and scope of the property aspects of the due diligence process that is carried out by the buyer in an asset or share purchase transaction. At the outset of a transaction (whether share purchase or asset purchase) there are a number of different issues that the parties will need to consider before beginning the detailed drafting of the acquisition agreement. In larger transactions, it is common to have multidisciplinary legal and professional teams representing both seller and buyer on a range of issues. Invariably property lawyers will form part of this professional team and will need to be involved in undertaking due diligence in relation to property matters feeding into the wider legal due diligence as a whole. The buyer will carry out legal, financial and accounting due diligence into the seller and the target or business and the properties, in order to obtain information, inform its negotiations and plan for the integration of the target or business with its own, see Practice Note: Due

Real property 1   1.1 Please provide details of all properties owned, occupied or used [by any Group Company OR in connection with the Business] (the Properties), including whether freehold or leasehold. 1.2 In respect of the Properties, please provide the following information: 1.2.1 full address; 1.2.2 approximate size of site and total size

A. Executive summary 1 Scope of review For the purposes of this report we have reviewed the following properties [insert details of the properties], (the ‘Properties’). 2 Basis of the review 2.1 Information relating to the Properties for the purposes of conducting our due diligence exercise and preparing our report has been sourced from the following:

It is important to establish whether or not the land is or may be contaminated: • to have regard to the Law Society's practice note on contaminated land—see Practice Note: Land contamination—Law Society practice note on contaminated land • because it may pose a danger to human health, and • because the buyer may have a statutory obligation to clean up any contamination under the Environmental Protection Act 1990, Pt IIA (Pt IIA): even though Pt IIA is a regime of last resort (with clean-up obligations far more frequently being imposed via planning conditions when contaminated land is brought forward for (re)development), if liability under the Pt IIA regime is imposed the cost of any necessary clean-up operations can be very considerable The Law Society's practice note advises that when acting for a buyer, mortgagee or tenant, a solicitor should (unless the client instructs otherwise) undertake a CON 29 'Enquiries of local authority' and LLC1 'Requisition for local land charges search' to ascertain whether the land has been designated by the local authority as contaminated. A negative