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How to Remove or Negotiate a Development Clawback/Overage: Your Guide to Negotiation

Posted by RELD on September 24, 2023

How to Remove or Negotiate a Development Clawback/Overage: Your Guide to Negotiation

If you’re currently in the process of moving to a new home and have your sights set on a property with a development clawback or overage clause, you might be wondering if there’s a way to navigate around this potential hurdle. The good news is that negotiation can play a pivotal role in modifying or even removing such clauses. In this blog post, we’ll delve into effective strategies on how you can approach negotiating the removal of a development clawback/overage clause, including discussing potential trigger events, and secure a property deal that aligns with your vision.

Understanding Development Clawback/Overage

Before diving into negotiation tactics, let’s quickly revisit the concept. A development clawback/overage clause is embedded in property contracts to ensure that sellers are entitled to a share of any increased value resulting from developments initiated by the buyer after the initial sale.

Negotiation Strategies for Removal

When negotiating the removal of a development clawback/overage clause, it’s crucial to be strategic and well-prepared. Here’s a step-by-step guide:

**1. Assess the Existing Terms:

Thoroughly review the existing terms of the clause, paying close attention to the specified trigger events. Understanding these trigger events will enable you to formulate a stronger negotiation strategy.

**2. Engage in Open Communication:

Initiate open and transparent conversations with the seller. Clearly articulate why you believe the removal of the clause would be mutually beneficial, streamlining the transaction process.

**3. Propose Alternative Trigger Events:

If you find that the current trigger events in the clause are restrictive, propose alternative scenarios that could serve as triggers for the clause. This demonstrates your commitment to working within the framework while also accommodating your vision for the property.

**4. Present the Bigger Picture:

Paint a vivid picture of the potential benefits that would arise from removing the clause. Emphasize how your proposed developments could not only enhance the property’s value but also contribute positively to the local community.

**5. Joint Ventures:

Discuss the possibility of a joint venture with the seller. This collaborative approach involves shared risk and rewards, which could be an attractive option for modifying the clause.

**6. Professional Mediation:

If discussions stall, consider enlisting the expertise of professional mediators or legal experts. Their impartial guidance can help bridge the gap between you and the seller.

**7. Explore Sunset Clauses:

Negotiate for the inclusion of “sunset clauses.” These clauses stipulate that the development clawback/overage clause becomes void after a specific period or once certain conditions are met.

**8. Flexible Time Frames for Trigger Events:

If the time frames associated with trigger events are inflexible, propose more adaptable time frames that still ensure fair compensation for the seller while aligning with your plans.

Final Thoughts

Negotiating the removal or modification of a development clawback/overage clause requires strategic thinking, effective communication, and a willingness to explore options that benefit all parties involved. Understanding trigger events, proposing alternatives, and remaining open to compromise can lead to a mutually agreeable outcome.

Remember that negotiation is a collaborative effort, and finding common ground can lead to a property deal that fulfills your aspirations while also respecting the seller’s interests. By approaching negotiations with clarity, empathy, and a well-prepared strategy, you can increase the likelihood of securing a property deal that aligns with your vision and goals.


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