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.
Site control agreements
Title, landowners vs. signers, deceased landowners, signing authority, doc prep, signature formats, notarization language, recording, and more.
#1 Big Mistake – Landowner identification & Anchor parcels
Not going to the source of ownership to ID landowners & not searching title on at least your anchor parcel(s). 
- Tax records are not reliable for confirming rightful landowners – which will be the signers of your site control agreement. Tax records are inaccurate enough for you to beware! They may only get you started in the right direction but cannot be relied upon for signing.
- Official ownership verification can only be done with a title search. A search of the recorder’s office documents on the property – deed chain. Don’t tax records show names on deeds? They are supposed to. The recorder’s office sends deed data to the tax office periodically – some send it annually, others quarterly, and others monthly. This means tax records will always lag behind the actual deed recordings by as much as a year, so tax records are not the primary, actual source of ownership determination.
- Tax records often incur & reflect human error. Up to 12 months; additional delays have been seen. Tax offices also make edits for their own clarification efforts, which can lead you in a completely wrong direction.
- Fraud – Intentional or unintentional – Parties living on the property may believe they do in fact have rightful ownership when they do not. I have seen properties where “owners” have left the official paper trail completely unattended for generations, meaning the occupants may not be the rightful owners at all – only to be proven by a title search showing them the bad news. It does not matter what people think, it matters what is documented. This may mean a costly & protracted legal battle within their family and a fatal flaw for your project.
- Anchor parcels – Your primary concern should be with these, so at least order title searches on the anchor parcel(s). If title defects are found, and they are too costly or time-consuming to fix, you can rapidly cease investing more time and expense on this property.
- Length of Title Searches to order on your Anchor Parcels – Typically, developers order shorter 50-100 year searches (mid-length). For higher-value projects, some developers go ahead and order the longest search (patent) upfront. Searches can range from $500 – $5,000 per parcel, depending on many factors. See this blog about types, lengths, costs, and how to get title searches. – but since you will only order these searches on the anchor parcels upfront, your financial outlay is limited.
[Quick facts about a title search – A title search accomplishes three critical goals:
- Identifies all parties with an interest in the property – ownership, conditional use, unconditional use, lien holders, easements, etc.
- Identifies the legal description of the property – This describes the boundaries and is not an address. The title searcher reviews prior deeds and ensures all prior sell-offs from a parent parcel have left a clearly definable boundary description of the remaining parcel (your subject property).
- Ensure an unbroken deed chain – Ensures all prior parties that had an interest in the property at one time, have sold (conveyed) their interests to the next owners, and so on to present property owners. That means verifying spouses have signed off as sellers even if not on purchase-deed (in many states), locating death certificates, trust agreements, wills, powers of attorney, and more.]
#2 Big Mistake – The source for ordering your title searches
Order your title searches from an approved search vendor (approved by title insurance companies) instead of ordering them from title insurance companies themselves. Why? Two reasons:
- Save weeks to months – Title insurance companies do not perform title searches. Instead, they order them from approved search vendors. They do not earn revenue from title searches – they earn their revenue years later when your project sells and a title insurance premium is paid to them by the buyer. THIS MEANS searches for them are a lower priority, which can mean delays. Further, several title companies refuse to provide just a search. Instead, they may require their title commitment to be prepared & provided to you which can add weeks to months to their turn-around time. So, order searches from the source – approved search vendors – which are in Title Leader’s marketplace.
- Don’t pay twice – Order from approved search vendors so that when the time comes to order title insurance commitments on your project, from a title insurance company, the approved searches you’ve already ordered & paid for can be accepted/used by the title ins co, saving you, potentially, thousands of dollars. All title insurance companies are also in Title Leader’s marketplace.
#3 Big Mistake – Wrong & missing signers and wrong signature formats
can affect title insurability and kill/derail your project. Although the title search will identify landowners, the following
circumstances determine who can sign your documents and how they must sign. Getting this right can help avoid costly & protracted court battles in the future for you and your company:
3a – If the landowners are individuals
then the individuals (and their spouses if in a spousal rights state) must sign.
- Use the full legal names of landowners on all your documents, including suffixes. Ex: John Donald Doe, Sr. Avoid initials, nicknames, and shortened names like Matt for Matthew.
- Verify the names found in the title search match those of the parties you are dealing with.
- Get two forms of valid identification, preferably government-issued.
- Same-name affidavits are a good business practice to prepare, have signed, and record along with your site control documents. This lists all the alternate name variations that landowners have used in the past on legal documents to clarify who is who.
3b – If the landowner individuals are deceased – who signs?
There are many circumstances in this case, many are listed here:
- Who can sign depends upon how the deceased took title to the property in their purchase deed. Typical options include…
a.With Right of Survivorship – The deceased’s interest goes to the surviving spouse.
b.Tenants in Common – This avoids the spouse and goes to the deceased’s heirs.
c.Life Tenant/Interest – Typically, terminates upon death.
- If a will is found, and it leaves a specific property to a specific person(s) – The recorded will then typically serves as the deed to those specific persons (& spouses if in a spousal rights state). It is these persons who are your signers.
- If the will names an executor of an estate, then probate court typically must approve it.
- If no will, then the heirs typically must go to probate court to name an Administrator to sign.
- If the deceased’s estate is still open – then the executor of the estate signs.
- If the deceased’s estate is closed/settled – then the signers will be the parties that the executor sold the property to.
3c – How to determine heirs (signers) of deceased landowners
Typical paths include but are not limited to the following:
- When a will dictates that a specific property goes to a specific person, person “B”, but person “B” is deceased, then you have to discover person “B”s heirs. Those heirs are typically the signers of your site control agreement.
- Determining heirs in KY typically flows in this order:
a. Down – Kids. If the sole remaining landowner is now deceased, and they had kids, then all these kids and their spouses must sign deed/lease.
b. Across – If no kids, then find the deceased’s siblings & their spouses to sign.
c. Up – If no siblings, then find the deceased’s aunts/uncles & their spouses to sign. - Minors – If any of these heirs is a minor,
a.Then the court may appoint a conservator to review the transaction to see if it is in the best interests of the minor. May take a couple of months. Then…
b.The court may appoint a Guardian ad Litem to sign on behalf of that minor. May take another couple of months. - An Affidavit of Descent should likely be prepared, executed, and recorded with your site control agreement, as well as any/all appointments of conservators or guardians.
3d – If the landowner is an entity – who can sign for it?
Who can sign, and how must their signatures appear (signature formats) on your site control agreements? The best practice is to require specificity. Have parties sign exactly as their names/titles are typed on your document. Typical KY examples include:
- POA (Power of Attorney) – When Jane is signing for John, using a POA, then
- Doc prep – These words must be typed under her signature line “John D. Doe, by Jane P. Doe, his attorney in fact.” The original POA must be recorded with the site control agreement.
- Signature – Jane must write out these words in her hand-writing as her signature: John D. Doe, by Jane P. Doe, his attorney in fact
- Estate – If the property is owned by an estate and the estate is still open (not settled), then this is typically typed under the signature line: “The Estate of John P. Doe, By Jane P. Doe, Executrix.” Then Jane would sign: Jane P. Doe, Executrix
- Trust – If the property is owned by a trust, this is typically typed under the signature line: “The John D. Doe Trust, dated 1-1-1995, by Jane P. Doe, Trustee.” Then Jane signs: Jane P. Doe, Trustee.
- LLC, C-Corp, Partnership – Requires a board resolution from the entity, signed by the authorized party of that entity, as shown on the state’s secretary of state’s website. This resolution names the signing party & title, specifies the real estate involved and describes the documents that the party is being permitted to sign.
- If the board resolution names John P. Doe as the entity’s Authorized Agent, then this typically is typed under the signature line: “John P. Doe, Authorized Agent”, and John must sign exactly the same.
#4 Big Mistake – Wrong notary language
Getting this wrong could lead to the potential invalidation of your documents in court. A notary is a 3rd party witness of a document’s signing. The notarization paragraph is typed above the notary’s signature. This paragraph must reference the signers properly. KY examples include:
- LLC The notary paragraph should read: The foregoing Deed was subscribed, sworn to, and acknowledged before me by John D. Doe, Authorized Signer, for and on behalf of XYZ LLC, a Kentucky limited liability company, to be its free act and deed on this date.
- Corporation The foregoing Deed was subscribed, sworn to, and acknowledged before me by John D. Doe, Authorized Agent of ABC Inc, a Kentucky Corporation, on this date
- POA The foregoing Deed was subscribed, sworn to, and acknowledged before me by John D. Doe, by Jane P. Doe as his attorney in fact, a single person, to be his free act and deed on this date. (Marital status is included as KY is a spousal rights state.)
- Trust The foregoing Deed was subscribed, sworn to, and acknowledged before me by Jane P. Doe, Trustee of the John D. Doe Trust dated 1-1-95, to be its free act and deed on this date.
#5 Big Mistake – Not fully perfecting your documents after signing
Regarding your site control agreement, deed, lien, mortgage, lease, easement, option agreement, powers of attorney, etc.: 
- To perfect any document means to record it at the county recorder’s office in the county in which the subject property is located. Location is the key – is the subject property in more than one county? Not just the part of the land your project will be on, but any part of the land?
- If the subject property spans multiple counties, you should likely record all your documents in each of those counties.
- Get multiple copies of each document signed at your closing – one set for each county – including a couple of backup sets! This will be of immense help when any set is lost in overnight mail or by the recorders’ offices, which often happens! This simple upfront practice can prevent you from having to go back and get more/replacement docs signed after the fact by all parties when some parties may be unavailable, unwilling, or even deceased!
#6 Big Mistake – Delayed title search = delayed fatal flaw ID
The sooner you ID fatal flaws, the sooner you can stop burning cash on this project. If the title search reveals title defects, they must be fixed (cured). All title defects are technically curable. The problem is that some cures are more costly and time-consuming than others – making it a fatal flaw for your project. 
- Getting a corrective document signed properly, to fix an old, wrong one, means finding the proper parties, their heirs if deceased, and seeing if they’ll play ball – sign the corrective documents.
- They may want to be financially compensated to play ball.
- If no party or their heirs can be located, you may need to go to court.
#7 Big Mistake – Choice of title insurance company for your title insurance commitments
Don’t go up the wrong road only to have to back all the way out:
- The title insurance company must be large enough to insure the risk of the dollar value of your desired project. Smaller title insurance companies typically can only insure lower-valued projects, while the leading Fortune 500 title insurance companies can handle the largest & highest-valued projects.
- Use the department within that title insurance company that specializes in renewable energy projects.
- You can order & manage title commitments from all the leading Fortune 500 title insurance companies that specialize in renewable energy developments in Title Leader’s free platform.
Summary
- Reduce risk – Order a title search from approved search vendors upfront to ID landowners instead of using fallible tax data.
- Save time and expense – ID fatal flaws more quickly – At least order searches upfront on your anchor parcel(s). You can order & manage searches from all approved vendors in Title Leader’s free platform.
- Reduce risk – ID the rightful signers and the ways they must sign.
- Reduce risk – Ensure the documents’ signature & notary lines are prepared properly.
- Save tremendous time and effort – Make all the extra copies required, including backup sets, and have all of them signed.
- Reduce risk – Before leaving the closing table, review all signatures on all documents for accuracy. Be precise.
- Reduce risk – Record all documents in each of the counties your subject property may be in.
- Save weeks – Order title insurance commitments from the best title insurance companies – you can order & manage commitments from these companies in Title Leader’s free platform.
- Consult legal counsel on these issues for the state in which your project resides.
Rest more easily, knowing you will now be more effective in reducing risk in these steps, 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.