Over the next few weeks Daisy Scaife, a senior associate in B P Collins’ property team is going to consider issues which could constrain or prevent development of land which might be apparent on a site inspection. If you need specific advice on this matter, please get in touch with the property team by calling 01753889995.
The common law principle of caveat emptor will apply to any buyer of land – the onus is on the buyer to find out everything it wants or needs to know about the property before buying it or becoming committed to buy it. So, it is important for a developer to establish whether a site is viable for development early on in a transaction, to avoid incurring unnecessary costs and to save the parties time.
An early site inspection with a solicitor will allow a developer to check any existing rights which might be revealed from a title review or ascertain any new rights which will be required at heads of terms stage. If there are covenants in the title deeds which could impact development – a site inspection may help to understand the significance of these and any constraint on development.
The following issues will vary depending on the type of land being acquired. More issues may arise on a site with a “vacant” landowner, who is not aware of the day to day use of the land, or on bare land, which is not secured or obviously occupied.
The first thing to establish is what is the “Property” as defined in the Contract. What a developer thinks it is buying and what a landowner can sell may be very different. A title plan may be historic and not accurately reflect the situation on the ground. Usually, there will be a Contract plan, with the Property edged red. Wellies and a sense of adventure may be required, but for certainty, the boundaries should be walked to check that the plan is correct and to identify any discrepancies. These can then be raised with the landowner and rectifications considered.
This is also the time to consider the maintenance of the boundaries. How are they currently maintained, will they need to be secured from exchange if the risk shifts to the Buyer under the Contract, and are there any ongoing neighbourly issues which need to be considered when planning the development and site layout?
Right of way
Hopefully, any rights of way are expressly granted and set out on the Land Registry title, and these can be cross referenced on a site inspection, but it is also important to look out for well-trodden footpaths and vehicles’ tracks, as well as gaps in fencing or hedges which could indicate access over the land. If the user of such access can prove that they have exercised the right for 20 years, they are likely to have acquired a legal right by way of prescription, and this right may need to be factored into a site layout.
If the land is an existing development, such as an industrial park or commercial units, there might be vehicle barriers or markings on the ground, which occupiers have utilised over time and are either able to prove prescriptive rights or are just a headache for the landowner to remove.
Squatters and encroachment
Who is in occupation of the land? Again, there may be leases registered at the Land Registry, or the landowner may have disclosed licenses and tenancies, but is there any physical evidence of squatters? The unregistered rights of occupiers may amount to overriding interests, and bind a buyer whether or not the buyer is aware of them. The landowner may not know who is using the land and who has acquired an interest by adverse possession. An application can be made to the Land Registry for adverse possession if there has been ten years’ occupation.
If there are discrepancies in boundaries, neighbouring landowners may have acquired parts of the land by adverse possession. Perhaps neighbouring houses have “extended” their back gardens by moving their garden fences a few feet back without any objections. Can these encroachments be absorbed into the site layout, or will it result in a reduction in unit numbers? Some encroachments might not mean a legal right has been acquired, but a developer may consider not trying to rectify them, as this may lead to unhelpful objections during the planning process.
In the next part of our trilogy, we will consider utilities, structures on-site and rights to light.
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