Whether acquiring 100 acres, or prime central London space, developers will want to develop quickly, sell to an investor and move on to embark on the next project. Completing appropriate due diligence is crucial to ensure the suitability, profitability and saleability of any development site. In the second article of our mini-series, we consider some of the most common legal impediments that developers need to be alert to.
As the name suggests, restrictive covenants are obligations, providing a mechanism to control the existing and future use and enjoyment of one parcel of land for the benefit of adjoining land. Given that land can be burdened by covenants for many years after the original grant, developers should not be tempted to ignore them simply because of their age. Some typical examples of restrictive covenants that crop up in practice may include a limit on the number of buildings that may be erected on any one plot or site; a restriction on the use of a building as a residential dwelling; a limit on the use of the land and a prohibition of trade or business.
Rights exercised over one piece of land for the benefit of another separate parcel of land are based on ancient law and statute and can take a variety of forms - a vehicular or pedestrian right of way; a right to run or use services or a right to receive light. Whilst the majority of easements are express, easements can also be implied (by necessity or long use for example) and so their existence may not be immediately obvious. Land subject to an easement (or the lack of one as the case may be) may have limited development potential, unless an agreement can be reached to discharge or vary the right. Where a development site may appear to benefit from all required rights, developers will need to satisfy themselves that those rights are all they are cracked up to be. Will a right of way extend to support future access to all of the completed development site? Will a right of services sufficiently support and provide essential connections for the new development? Will the developer need to negotiate additional rights with adjoining land owners to ensure that the development can proceed?