New contractual control agreement rules could include retrospective disclosure

Contractual control agreements, or CCAs, are agreements such as options that are used to give a party some element of control over land that they do not own. 

As part of a drive to increase transparency around land ownership and controls on land, proposed new legislation will require details of CCAs to be made available in a public register. 

These changes are expected to come into force in April 2026, although it is likely that the disclosure requirements will be backdated and will apply to CCAs entered into from April 2021. 

The new rules would be brought about by regulations created under the Levelling Up and Regeneration Act 2023, also known as LURA, a wide-reaching act that introduces a raft of changes impacting on planning, environmental, property and public sector law.

Draft regulations have already been consulted on, with significant opposition to some aspects, particularly their retrospective effect. However, it seems likely that the draft regulations will be implemented as proposed and will therefore impact upon all CCAs entered into since April 2021. 

Which agreements would be disclosable?

Most agreements between developers and landowners that facilitate development would be classed as CCAs under the new regulations and subject to the disclosure requirements; this includes option agreements, pre-emption agreements, conditional contracts and promotion agreements.  

The proposed rules would apply to agreements in writing that last for, or include a right to extend their contractual term to, at least 12 months. 

Overage agreements, agreements that terminate within 12 months, clawback agreements and restrictive covenants would not be classed as CCAs.

It is proposed that the regime will be retrospective, catching CCAs entered into from April 2021. Furthermore, the variation of a CCA that alters the required information or assignment of a CCA entered into prior to April 2021 would trigger the requirement to disclose.

Currently, unregistered land is excluded from the scope of the proposals.

What information would parties have to disclose? 

The regulations would require the parties to a CCA to provide details of:

• The agreement type.
• The names of contracting parties.
• The date the agreement was entered into, the end date and any rights to extend.
• The geographical extent of the land affected.
• The SRA number of the solicitor (or equivalent professional) involved in preparing the agreement.

There are no plans to make the agreement itself publicly available.

Currently, there is no legal requirement to disclose the above detailed information. However, in most cases the beneficiary under a CCA will seek to protect its interest at the Land Registry, and this involves disclosing the date of the agreement, the parties to it and the land affected.

It is worth noting that the proposals would amount to a requirement to disclose ‘by law’ and a contractual confidentiality provision in a CCA is unlikely to override this.

When would the parties have to disclose the prescribed information?

The proposed notification period is within 60 days of the CCA being entered into, and any variations to a CCA must also be notified within 60 days. The onus would be on the beneficiary under the CCA to notify the Land Registry. It is anticipated that the Land Registry will insist that the information be submitted by a conveyancer. 

Currently, a 12 month transition period has been proposed, meaning that those with existing CCAs would have 12 months from implementation of the regulations to provide the required information. 

What happens if the prescribed information is not disclosed? 

Under the new proposals, it would not be possible to protect the benefit of a CCA on the title register at the Land Registry by way of a restriction or notice without the conveyancer disclosing the prescribed details of the CCA. 

The new regulations would also impose criminal sanctions for non-compliance, including imprisonment and hefty fines.

Ashfords has extensive experience dealing with contractual control agreements and we would be happy to discuss any questions or concerns you may have. We can help you navigate the likely implications of the proposed new legislation and the impact it may have on your past and future transactions. For more information, please contact our real estate team.