With the current state of the market and lack of availability of sites, many housebuilders are looking for sites which are often not as maintained or secured as they ideally should be. They may be open to adjoining public open space, an unused farmers field with gaps in the fence, open residual development land or spaces occupied by travellers or regular fly tipping spots. Whatever the situation, unsecured sites opens the door for members of the public to gain access and either potentially claim prescriptive rights of way over the site if the alleged right has been exercised for over 20 years (which can cause havoc to layout schemes), or worst still facilitate a town or village green application. Site inspections are key to rooting out any signs of unauthorised public access.
If sites are showing signs of unauthorised public access, the safest solution is often to obtain a title indemnity insurance policy to cover off the risk of any third parties claiming prescriptive rights of way over the Property. In order to provide indemnity insurance quotes, underwriters will usually require:
- Details and photos of the route and nature of the unauthorised access;
- Whether or not the route obviously leads to and from definitive locations;
- How long the unauthorised access has been carried out;
- Whether or not there are any signs at the site stating the property is private;
- A proposed layout plan for the site;
- Whether or not planning has been obtained for the site; and
- Whether or not the site is secured.
Indemnity Insurers may also require the site to be completely fenced off and secured for a period of time (often up to 12 weeks) with a log kept of any objections to the site being secured before putting the policy on risk. Any fencing requirement could significantly delay commencing development, potentially indefinitely if any objections are received during the fencing period. Even if an indemnity insurance policy can be obtained, the premium for a typical policy with a limit of indemnity of say £50,000,000 could reach as much as £100,000.
Our top tip in relation to open sites; make sure they are secured as early in the process as possible, be aware of the potential risks of an open site, do your due diligence and if still concerned, consider making the contract conditional either on a site free from rights or on taking out a satisfactory indemnity insurance policy.
