Preparing your land for sale or development Part 3: On the ground considerations

This article is one in a series looking at issues to consider when preparing your land for sale and/or development. In this article, we will look at the physical “on the ground” considerations. Further and more detailed information about other elements of strategic land can be found here.

In addition to taking advice from a development surveyor as to the suitability and viability of your land, what “on the ground” physical factors should you consider prior to marketing your land for sale for development?

Use of your land pending sale

It is advisable to continue to actively farm or maintain your land even if you’re considering selling it so that hedges are kept trimmed and grass cut at appropriate times of the year. This will maintain the status quo and prevent new wildlife habitats forming.

Regularising any occupations of your land 

If you are not farming the land in hand or have other occupiers or businesses using all or part of your land, you should review your arrangements in relation to the farming of the land, ensuring arrangements are suitably documented and that you can provide vacant possession at the appropriate time. Differing regimes apply depending on the nature of the occupier and the status of the agreement and it may be appropriate to take legal advice at an early stage to ensure you know the position as regards those occupations and what, if any, actions are advisable. This will help to prevent issues and delay at the point of sale.

Undocumented use of the land or rights exercised over the land

Think about whether there are any other people who use the land. For example, is the land used by dog walkers or others for recreational purposes? Are there gates onto your land in the fences of adjacent houses? If so, we would recommend taking legal advice as to the status of such use, potential for designation as common land or as a town and village green and whether any steps can be taken to mitigate the impact, for example, by depositing a statement and map under Section 15A Commons Act 2006 and Section 31(6) Highways Act 1980.

To prevent any new use of the land, actively managing it by ensuring fences are adequate and maintained, gates locked and appropriate signage stating the land is private property and prohibiting access will assist.

Boundaries

Do the physical boundaries of your land match your title? See our article for further consideration in this regard. Be clear as to who owns and is responsible for the boundaries.

Physical structures

Are there any physical structures on the land to be sold? It may be that they are capable of being moved and reused, and could be excluded from the sale for example, modern agricultural buildings. If you have farm buildings on the land its worth considering an asbestos survey. This will prevent a delay to sale down the line as a purchaser is likely to insist on a survey having been carried out prior to acquisition.

Access to the land

Does the land abut an adopted highway at the likely points of access and likely route of services? If not, you should consider whether there is a mapping issue which can be rectified or whether statutory declarations and indemnity insurance may be required to satisfy a purchaser.

Location of services

Do you know where the location of all existing services and drains that cross the land are? Are you receiving any wayleave payments from any utility companies and do you have copies of all relevant wayleaves which can be provided to the purchaser?

Rights required for retained land

It is worth giving some thought to what rights any retained land you may have following the sale will require over the land sold including:

• rights of access;
• rights to use and repair existing services;
• rights to use new services laid within the land sold.

There will need to be an express reservation of any such rights in the transfer of the land as, whilst such access and services may have benefited the retained land for many years, the transfer is likely to exclude any implied easements. You should consider what the current and future uses of the retained land might be to ensure sufficient rights are reserved. These should be addressed at heads of terms stage along with any covenants to be imposed on the purchaser including:

• obligations to erect and maintain boundaries;
• any restrictions on use;
• maintenance of shared access and services;
• construction, maintenance and adoption (if appropriate) of any access or services to serve the retained land.

Pre-contract enquiries

Pre-contract enquiries will need to answered as part of the due diligence process. These enquiries require you to provide replies and accompanying information relating to the land. You may be liable for misrepresentation if you provide inaccurate replies. The enquiries raised are somewhat extensive on development sites and, as such, the sooner you start gathering together relevant information relating to the land the easier and quicker this process will be when you have agreed terms with a purchaser. The information required may include:

• the issues identified above;
• planning history;
• utility supplies;
• tree preservation orders;
• statutory liabilities
• environmental issues and any known or potential contamination of the land; and
• any disputes or notices affecting the land.

Surveys and investigations

Your agent may recommend carrying out some initial investigations such as a Phase 1 environmental survey and ecological surveys to speed up the sale.

Appointing appropriate advisers

Lastly, it is important that you appoint an agent and a firm of solicitors with the right breadth of expertise to handle the sale and to advise you as to other issues that may arise including those highlighted above as well as tax and estate planning considerations as discussed in our article.

Further and more detailed information about other elements of strategic land can be found here.

This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.