The regeneration of our towns and cities presents exciting opportunities to transform often tired and redundant properties into desirable real estate. The size and scale of re-development schemes can vary from the re-purposing of high street shops and office buildings for a new purpose, to large-scale multi-use projects which transform the landscape.
Whilst there may be no such thing as a 'perfect' title, we often see regeneration sites throwing up more in the way of title issues and legal challenges than typically seen when examining title to a greenfield site. Regeneration sites are often made up of several pieces owned by different people. They also often have a varied use history and understanding this can be as vital as what is visible on the site today. It is important to identify obstacles and resolve any title and legal issues early in the diligence process to ensure the project is not derailed. Some key elements to consider:
Who owns the site? Is legal title held by a single owner or by multiple owners? Is site assembly needed, like a giant jigsaw puzzle with no missing parts? Are there gaps or overlaps which must be investigated? Physical features on the ground can often change over time – often neighbours can encroach and build on property they do not legally own. Checking title plans against ordnance survey maps (and indeed Google Maps) can help to ensure the legal title boundaries align with the current position on the ground.
Any third parties' interests in the site? If a third party enjoys specific rights to use or occupy any part of the site, this might prevent the proposed scheme going ahead unless that party can be persuaded to give up its rights or agree to a variation. Not all third party agreements will necessarily be obvious from an examination of the title deeds or even formally written down. Are there indicators of third party use on or around the site, such as the existence of paths or tracks, people parking cars or items stored on site?
How is the site accessed? There might be existing roads or access serving the site but it shouldn't be assumed that these will be sufficient for the future regeneration scheme. Plans of sites and surrounding land and accesses must be carefully checked to ensure there are no gaps or potential ransom strips.
How is the site serviced? Similar principles apply to services as to access roads - it is important to establish what (if any) utilities (i.e. gas, electric, water, drainage, telecoms) already service the site and what additional services infrastructure might be required to serve the new scheme. Above ground substations, gas governors and masts are readily identifiable, whereas sub-surface pipes, cables and wires may be hidden. Often existing utility connections will not suffice or may be in the wrong location to facilitate the new buildings and existing services infrastructure may need to be relocated. In addition to technical consents, the site may need additional rights over private land (known as servitudes or wayleaves) to lay services and facilitate connections.
Title conditions: the legal title documents may contain conditions which 'burden' the site. Often these are historic. Such conditions need to be assessed to establish whether or not they pose a problem today. There may be minerals reservations, where a third party has sought to retain ownership of the minerals below ground, or specific use restrictions preventing the property from being used for anything other than a specific purpose without consent. The question is whether or not these conditions truly remain valid and enforceable title conditions today and if there is any risk, how best to resolve them.
When dealing with any site assembly or acquisition, thorough title examination and good site diligence is critical to highlight potential issues early in the process and work to find a solution; an issue arising at the last minute can be costly and risks delaying the project. Issues may need to be resolved before the scheme can go ahead to ensure the site has a good valid and marketable title for the site developer and all end owners and users.
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Senior Associate
