Buying land - why use solicitor?

Buying land - why use solicitor? 1. Though buying land is relatively simple, it involves a process that must be evidenced in writing. Over time, traditions and practices have become established which means that for many, buying land requires a 'legal' eye to understand all the deeds and other documents. Most legal documents relating to land would fail the 'clear-English' test. They are written in obscure, archaic language with clauses and covenants that can baffle a legal brain. Some may be harmless or no longer apply to the land but others could potentially have a huge impact on the future use of the land and its price.

2. Solicitors are legally bound to provide impartial and independent advice, so they will protect your interests. This can be as simple as checking for covenants or planning requirements to assessing the possibility of building on the land.

Deeds and Titles

Every land sale transaction these days is registered with HM Land Registry. It was not until 1899 that this first became a required practice in certain parts of London and not until December 1990 that this practice applied to the entire UK. Through this and its very nature, vacant land is often unregistered. Quite often the deeds have been lost and though there is little doubt who owns the land they may be no written proof of it.

This is not as serious as it sound because there are systems in place to establish ownership and lawful possession. The usual route is to obtain statement declarations from the Vendor, neighbours and other associated parties. With these you can get a Defective Title Indemnity Policy that effectively confirms ownership and costs a few hundred pounds.

Land Contamination

You may think would be an unlikely problem. True, if you are purchasing pastureland or someone's back garden, contaminated land should not be an issue. Old brownfield land (land that has seen previous development and use) may be contaminated through previous use as a petrol station or mining.

'Contamination' refers to where there is a possibility that previous use could affect humans, livestock, underground water supply or local environment. As the landowner, you are required under the Contaminated Land Regime of the Environment Protection Act (1990) to notify the authorities of any potential contamination.

It is, of course, possible to sort out contaminated land, at a price. If in any doubt, it worth getting a full soil analysis and the cost of any remedial work before purchasing. This will enable you to effectively negotiate on the price you pay for the land.

Boundary Disputes

Boundary disputes comes under the same consideration as possession. Your solicitor will give you the exact dimensions of your land and it is your responsibility to check that they are correctly maintained and marked out. If you feel that there has been any encroachment by a neighbour, then you should literally stake your claim and mark out your boundaries with stakes and wire. Then notify your neighbour that you have fenced your boundaries. It will then be their responsibility to establish a claim. If however, they have already done this through Adverse Possession, you need to negotiate with your Vendor on the price and contract.

Planning Permission

If you are buying land for building, it is down to the Solicitor to check the extent and nature of the planning. Whether you require planning permission, is obviously down to what you want the land for. If it is your imminent wish to build the house of your dreams then planning permission is essential. If you are buying for the longer term on the hope that planning permission is granted sometime in the future, then planning permission is not required.

It goes without saying that any form of planning permission will affect the price. Land with planning permission costs at least 10 times more than land without.

• Land without planning permission.

Most land does not have planning permission, which makes it the cheapest and most affordable to the private investor.

Over the past few year, there has been a significant growth in the number of people investing in well located agricultural and Greenfield land. The land obviously does not have planning permission but with the current housing shortage, particularly in the southeast in areas of high housing need, next to existing residential development, demand is high as a potential site for future housing development.

A recent survey by the Royal Institute of Chartered Surveyors showed that a new breed of investor had pushed rural land prices up by 30% in 2004 and 130% since the early 1990s. When investing in this kind of land, it is essential to assess its future potential for development. Land in the middle of nowhere is very unlikely to ever get planning permission. Look out for companies selling a chunk of a field in a rural location, promising that they will get planning permission with 5 years.

Planning permission cannot be guaranteed on any greenfield land in the UK. Although, in some cases if the site is next to existing development with good amenities, there is a definite chance that planning permission may be granted on the land.

• Non-existent planning permission

Planning permission is granted for a period of 5 years and work needs to have been started for the planning to apply. Be sure to check carefully the dates for all consents, alongside your final completion date.

For outline planning, you must ensure that the Approved Reserved Matters have been made within 3 years of its granting, otherwise the planning permission may be out of time and consequently invalid.

The simple answer is if planning permission is crucial, then you must make sure that all the valid consents are in place and in time.

• Planning Conditions

In some cases, it is not sufficient that all the consents are in place because conditions and stipulations have also been attached to the planning. For example, a council may have stipulated certain materials are used and these will have to be approved by the planners.

In such events you can apply for retrospective planning but beware, some councils, particularly those in areas of outstanding natural beauty, may not be so lenient and planning permission could be refused, leaving you with a property you literally have to pull down.

In rural areas or countryside where building would not be readily permissible, planning is usually granted with 'agricultural consent'. An 'ag-tag' means that conditions are attached to the type of individual who can live in the property. The actual terms can vary considerably, but they generally apply to someone who earns their living solely from agriculture.

An 'ag-tag' affects the price of the property and also the lenders who are prepared to give you a mortgage. They are enforced through a Section 106 agreement and are a binding contract between the local authority and property owner.

You can have an agricultural tie removed by proving that there is no longer a requirement for this kind of property. This is an expensive and time consuming process as you usually have to advertise the property for several years. If no complying buyers materialise who can afford to buy the property then you may get the restriction lifted.

Alternatively, if a 'non-complying' owner has lived in a property for more than 10 years unchallenged, they can usually obtain a 'certificate of lawful' occupation. This is no consolation if you are looking to build your dream home and discover late in the day that it has agricultural ties.

The final route to lift an 'ag-tag' are agencies who for a 'no win, no fee' service will challenge the working of agricultural ties. They can sometimes succeed if they can prove that the wording is unworkable or unacceptable. Their service, if they win, will cost around a thousand pounds.

Rights of Access

When you buy land you should always check that it has vehicular access. Again, it is the job of the solicitor to check the access is clearly defined on the deeds, There are some instances where the access can be missing, when a group of houses share an access but no formal legal right has been established. The solution is a the Single Premium Indemnity.

Ransom strips are the main reason why rights of access should be clearly established from the onset. Ransom strips are small strips or pieces of land that are retained by a previous owner, often to prevent vehicular access. Properties without vehicular access are unsaleable but buying a ransom strip, no matter how small, could cost as much as a third of the price of the land. Please check the deeds carefully because ransom strips can go undetected even by the most vigilant of solicitors.

Compulsory Purchase

This is a common problem that can affect plots of land near to a main highway or footpath. Compulsory purchase allows the authorities to purchase the land for road widening schemes etc. This is usually noted on the deeds and registered with HM Land Registry. Some compulsory purchases can go back decades and as such, are not a real threat to your land. However, take careful measurements before purchase to make sure what are the implications of the compulsory purchase.

And do not think that by keeping quiet you can establish Adverse Possession. Adverse Possession cannot apply to highways land.

Covenants and Easements

Covenants and easements are earlier clauses in the contract for sale that are binding to future owners. They normally refer to something that may not happen to the land or restrict development. Many covenants, for example, were designed to protect the view from an adjoining house and are no longer applicable, so the solution is a establish a Single Premium Indemnity Policy.

Easements are similar to covenants but usually cover rights of access over land. Utilizes companies take out easements to give them access to overhead cables, drains and water pipes. In many instances, easements have exclusion zones where no development can take place. It may be possible to have the services diverted but this can be very costly, easily running to thousands of pounds.

Footpaths

Footpaths and other rights of way in principle can be moved but in practice, this is more difficult because the diversion must be beneficial to the footpath and not just to your property. Footpaths are not only protected by law, they are avidly scrutinized and protected by the local community. Attacking a footpath can make you extremely unpopular with your neighbours and should only be tackled if you have extensive resources - otherwise keep well clear!

Wildlife

The existence of certain flora and fauna can impose severe restrictions on the use of your land. It is, for example, illegal to dig up badger set and species such as newts are protected and any disturbance of their habitat is strictly controlled.

Woodlands are also an area where planning permission is highly unlikely to be granted, although a caravan is permissible for up to 28 days per year as are not permanent structures such as sheds and tree houses.

Sites of Archaeological Interest

Sometimes planning permission is granted on a site of archaeological interest. Though this may appear harmless, it can end up expensive because the building may only be allowed once an archaeological survey is completed, seriously delaying any development. Alternatively, you may be required to set up the foundations so that the archaeological site can be accessed in the future.

If you are looking at investment land, again check for Neolithic sites. These are not usually visible but will place restrictions on the potential for any future development.

- James M

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