When it comes to residential development, the transfer of public open space is one of the final hurdles before the site is fully finalised. From a legal perspective it cannot be stressed enough how vital it is to ensure that the plans accompanying these transfers correctly identify the extent of the land to be transferred. Failure to do so can have consequences for not only the developer but also for potentially the management company and the residents on the development.

What do we mean by a correct and accurate plan?

An accurate plan should:

• Clearly show the extent of the public open space/managed areas to be transferred. It should be checked that the plan does not include any land that does not form part of the public open space/managed area but it is equally as important that no areas of land have been missed.
• Only contain land which falls within the developer’s title. It is important, in order to avoid delays, that the boundaries of the public open space/managed areas detailed on the plan do not extend outside of the legal boundaries of the developer’s title as registered at Land Registry.
• Correspond with any agreement in place with a Management Company. Commonly at the start of a development an agreement will be entered into by the developer with a Management Company as to what public copen space/managed area is intended to be transferred at the end of the development. Whilst the management agreement may allow for some variation, it is essential that the transfer plan is in line with the agreement and reflects the land that was intended to be transferred.
• Detail by reference to colouring or hatching any rights, easements or covenants which affect the land to be transferred.
• Contain the formal requirements of the Land Registry such as noting the correct scale used and showing a Northpoint.

Even minor inconsistencies can delay the transaction or result in inaccuracies which need to be later rectified incurring unnecessary extra cost.

Why it matters

• Land Registry

Land Registry will raise enquiries or reject an application for registration of the transfer if the plan does not meet their requirements or it is noted that the public open space/managed area detailed on the plan falls outside of the developer’s title.

• Disputes

If the plan is unclear or inaccurate disputes can arise with Management Companies or Local Authorities who are looking to take transfer of the land.

• Risk

Inaccurate plans can leave parcels of public open space/managed area in the ownership of the developer who would continue to be responsible for the land without necessarily knowing in practice that the land remains in their ownership. This responsibility includes the  continued risk for the land and there may be a continued need for insurance to be in place.

Best practices

• Engage early: involve a residential development legal specialist early in the process to ensure consistency across all plans.
• Use Land Registry compliant plans: these must be to scale and clearly identify the land with red edging.
• Check any agreements: make sure that you check any management agreement or section 106 agreement to make sure that the land being transferred complies with these agreements.
• Review the title plan: refer to the title plan for the title to the land to ensure that the extent shown on the plan wholly falls within the correct registered title.

For developers the transfer of public open space may feel like a procedural formality, but its one where detail really matters. Getting the plan right avoids delays, keeps costs down and ensures the transaction can progress smoothly and efficiently.