We help with issues that can arise at any stage of the conveyancing or development process. Below are some examples.
Our client was acquiring a large area of land to make up their development site. Planning permission had been granted for their development. However, there was significant local opposition to the development proposals, with hundreds of objections raised during the planning process. The client and their funders were concerned about a number of issues identified during their title due diligence:
Whilst it was believed that the owner of a nearby quarry was or might be the beneficiary of the mineral rights, there was no real certainty on this. The client did not want to approach this third party regarding the mineral rights for a number of reasons; they may not have had the benefit, or all of the benefit, and upon being notified of the potential infringement of their rights, they may not have agreed to release them or may have sought to ransom the client.
It was unclear who had the benefit of the restrictive covenants and therefore the client had no one to approach to seek a variation or release of the covenants to enable the development to proceed. Whilst they may have had an opportunity to ask the Upper Tribunal (Lands Chamber) to consider modifying the restrictive covenants, this process is both time consuming and can be expensive.
The client faced a great deal of uncertainty given the inability to achieve a clean title. This made the proposed development financially precarious; even if the client had been prepared to take a view and get on with the development (which they weren’t), their funders were not prepared to proceed without the comfort of a policy. The provision of a restrictive covenant and mineral rights indemnity policy could not remove the restrictive covenants or the mineral rights from the title to the property, or prevent enforcement in the event that the beneficiaries of either decided that they wanted to take action.
However, the policy did provide the client and their funders, and future buyers of the completed development with the security of knowing that if enforcement action was taken or threatened they would be covered for their financial losses. In addition, they would have the support and experience of the insurers in defending their position in the event of a claim and reaching a satisfactory resolution.
We were approached by an investor who owned a large portfolio of properties in the north-west of England. They had an opportunity to buy more properties if they acted quickly; they needed to arrange finance, but for a variety of reasons were seeking to raise this against their existing portfolio.
To achieve the transaction timescales, there was no time to obtain and consider local and other searches to complete due diligence on the portfolio against which the finance was to be secured. The lender was not prepared to allow completion of the refinance agreement and drawdown of the required funds in the absence of receipt of clear searches.
We turned this enquiry around very quickly, requiring only limited information about the properties and the mortgage advance.
The provision of a search indemnity policy for the benefit of the investor’s lender was sufficient to persuade the lender to complete the agreement and allow the investor to drawdown; the investor also avoided the cost of obtaining a significant number of searches and the time that these would have taken to both be returned and then considered and reported on.
A client approached us about a city centre site comprising disused warehouses and a car park surrounded by other warehouses, some of which had been converted into flats, houses and shops. The client wanted to demolish the disused warehouses to create a block of flats that would be higher and have a greater massing than existing buildings on the property.
The recently approved planning had a number of objections on grounds of loss of light. The client had obtained advice from a Rights of Light Surveyor who identified apertures in neighbouring properties which would suffer loss of light as a result of the client’s development.
Having examined the Rights of Light report and the titles to neighbouring properties, with particular focus on which neighbouring apertures would suffer loss of light as a result of our development, it was clear that there were a number of actionable losses that could be enforced and could potentially result in an injunction preventing or curtailing the client’s proposed development.
We were able to work with the developer, their legal advisors and the rights of light surveyor to devise a strategy to provide financial protection by way of a rights of light indemnity policy, whilst allowing the developer and their advisors to approach a number of the neighbouring property owners to negotiate a release of their rights to allow the development to proceed. The burden of unexpectedly high settlements or losses resulting from injunctive relief being granted if the development proceeded without agreement was borne by our policy thus enabling the developer to proactively manage the situation by engaging in good conduct and approaching affected parties.