Uncover hidden fatal flaws sooner, saving considerable time and investment.
If you are an originator, developer, project manager, or legal counsel for an early-stage utility-scale developer of solar/wind/BESS projects, this is for you.
Time is money. Develop a relationship with your landowners to find the answers to all these critical questions that uncover hidden fatal flaws. All problems can technically be fixed or mediated; the question is, will it take too much time and expense to do so? Ask these questions as early as possible and investigate the answers. Then, your team can determine if it is better to move on to another property. See the Blog on What is “Title” in Real Estate
Create a checklist to ask property owners if they know of any of the following:
1. Boundaries & Easements – Ask if there are any known disputes related to boundaries with anyone or if they have any knowledge of any persons claiming to have easements or rights of use or access to any part of the subject property.
2. Environmental
- Features/Uses – Are there any known wells, depressions, pits, burn pits/areas, disposal areas, dumps, sinkholes, soil discoloration, car repair or car paint locations, underground storage tanks, previous gas stations, previous oil or
chemical storage facilities or containers, former mineral mining or production, storage, manufacturing sites of any material or product? - More features – Are there any conservation reserves, waterways (dry or wet), water collection locations, or easements of any kind that they might be aware of? Presence of endangered species, protected habitats, wetlands.
- Uses – past & present. Find all: Crops, livestock, any sort of commercial business, any type of mining, or subsurface activities. Some can negatively impact the land and become a fatal flaw, if too costly to mitigate or remedy.
3. Agreements
- Are there any agreements with anyone, written or verbal ?
- Such as reciprocal use agreements (like shared driveways) or agreements or permission to access part of the land for any purpose – driving, walking, hunting, fishing, business, pleasure, etc. “You can plant on my land so I can hunt on your land”, for example.
- Unwritten, verbal, handshake, or gentlemen’s agreements can be challenged in court.
4. Grazing & Farming
Easements, unwritten agreements, or anything unrecorded. In Illinois for example, there is statutory notice-timing requirements to send to farmers if there are grazing rights etc. that can impact your start dates significantly.
5. Water
- Rights – Sharing of water with neighbors or for livestock grazing or wells that are used and shared by written or unwritten agreements.
- Presence – Ask about areas of water runoff where water levels can expand into in periods of flood or rains whether pooling or flowing through.
6. Markers from prior surveys – Ask if boundaries are marked with iron pins, stakes or flags – this is unlikely in large rural properties, except surrounding a residence on that property. Ask if any previous surveys – this can prove helpful and save time completing the eventual ALTA survey.
7. Fire department access & egress to the property and proximity of the station is important for battery projects.
Summary –
Ask your landowners all the questions above. Then explore each answer to assess for fatal flaws. Investigate those you’re unsure of. Get to a go/no-go decision must faster.
Rest more easily, knowing you will now be more effective in reducing risk by asking these questions, and at the same time, you can avoid wasting considerable time and expense. You’re now a stronger professional and even more valuable to your employer. Thanks for reading. 