Fern Schofield and Michael Ranson, both barristers at Falcon Chambers, set out the legal, practical and commercial difficulties involved.
Schofield and Ranson suggest three ways in which overage obligations might be secured, including relevant case law and practical hints for each. The authors include a warning about the use of restrictive covenants, as well as potential solutions to the ‘esoteric’ problem of Quia Emptores, a statute dating back to 1290.
The write: ‘By their very nature, overage provisions deal with an uncertain future. Even the most carefully drafted contract may be found lacking in circumstances which were not foreseen when it was entered into, be it development financing falling through, refusal of a planning application, or the souring of a previously sweet commercial relationship.’
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