Why Early Title Review Matters for Project Sales and Financings
In renewable energy project development, title issues often receive little attention when they are first identified. These issues can include superior mortgages, utility or pipeline easements, severed mineral interests, prior renewable energy leases, liens, signing authority issues, and legal description problems.
Early in development, these issues often appear manageable. The project may still be moving through interconnection, permitting, environmental review, land acquisition, and layout changes. There may be no immediate sale or financing deadline and no active buyer, financing party, or title company diligence process.
Title issues rarely improve with time unless someone takes steps to resolve them.
By the time a project reaches sale, financing, or construction, unresolved title matters can become closing conditions or affect title insurance coverage. Resolving them can take time, particularly where subordinations, nondisturbance agreements, crossing agreements, corrective instruments, releases, affidavits, or probate work are needed. In some cases, the parties may need to change the project layout or negotiate who will bear an unresolved risk.
Title curative work should begin early enough to resolve these issues before the project is scheduled for sale, financing, or construction.
What Title Review Needs to Establish
Renewable energy and infrastructure projects depend on real property rights that must remain reliable over the life of the project.
A solar, storage, wind, transmission, or data center project may include leasehold and easement rights, which need to be enforceable against the relevant property owners and, in many cases, protected against other parties with interests in the project property.
A well drafted project lease can still be vulnerable if superior interests are not addressed. Recorded encumbrances can impair the project’s land rights even where the developer has negotiated favorable commercial terms. Signed leases may also require curative work if the signing parties did not hold all required interests, if signing authority documentation has not been obtained, or if the legal description is incorrect.
Signed documents need to give the project rights it can use throughout development, construction, and operations. Those rights also need to satisfy buyer, financing party, and title insurance requirements.
Title review tests the project’s land rights against the real property record. Title curative addresses the problems that review identifies, including defects in ownership, competing rights, and restrictions that could interfere with the project.
Early Title Review Is Not Full Curative
Early in the land acquisition process, title review often focuses on whether the developer can rely on the site control documents being signed. At that stage, the project team is usually trying to confirm the basics: whether the correct owner is signing, whether the land is described correctly, and whether the signing party has authority to bind the relevant ownership interest.
These questions are fundamental. A lease, easement, or other site control document can create problems later if the ownership record does not support the signing parties, if the legal description does not match the property intended for the project, or if the person signing for an entity, trust, estate, or otherwise on behalf of another party lacks documented authority.
This early review can also identify issues that should be addressed before a site control document is signed. Those issues often involve ownership or authority questions that call into question whether the project is obtaining the real property rights it expects to obtain.
But early title review is not the same as full title curative.
Some title matters do not necessarily prevent a developer from entering into a site control document, but still need to be tracked and resolved before sale, financing, or start of construction. For example, a mortgage may require a subordination or nondisturbance agreement, a third party easement may require a crossing agreement, and oil and gas interests may require mineral review or curative documents. Other recorded encumbrances may need to be reviewed against the project survey.
A project team can make better decisions when it separates issues that affect the validity or reliability of the site control document from issues that are more appropriately handled through later title curative. Both categories matter, but they affect the project at different points in development.
Why Title Issues Often Surface Late
In many renewable energy transactions, title is reviewed more than once.
Early title review often begins before a formal title commitment is ordered. Developers may start with deed pulls and ownership review when they first evaluate a site. As the project advances, they may order a title commitment. A buyer may conduct its own title review in connection with an acquisition. Financing parties require title diligence before closing. The title company may also revisit the project when the survey, legal descriptions, insured parcels, and requested endorsements are being finalized.
Each review may reveal new issues or give an existing issue greater significance as the layout, financing terms, or buyer requirements become clearer.
An easement that seemed irrelevant during early diligence may become important once the final layout is prepared. A mortgage that was expected to be subordinated may become an issue when the mortgagee is slow to respond. An access gap may be manageable during development, but unacceptable to a buyer or financing party.
If title issues are identified early, they can often be addressed during the ordinary development process. The developer can coordinate with landowners, mortgagees, easement holders, mineral owners, and title companies before a closing deadline is set. If the same issues are discovered late or curative work is delayed, tight financing or construction deadlines may leave little time to obtain documents or negotiate a solution. The developer may then have to pay more, accept less favorable terms, or delay closing.
Common Title Curative Issues in Renewable Energy Projects
The title issues that arise in renewable energy project development vary by project type, jurisdiction, land history, and transaction structure. But certain categories appear regularly.
One common category involves ownership and authority. Renewable energy projects often involve rural properties that have been held by families for generations with different ownership structures. Title may reveal heirship issues, authority questions, or inconsistencies between the record owner and the party that signed the lease. These issues can be manageable, but they often require time, documentation, and careful coordination.
Another category involves legal descriptions and property configuration. A lease may describe the wrong land, describe more land than the project uses, or fail to include an enforceable description for the portion needed for the project. Gen-tie routes, access rights, substations, laydown areas, excluded property, and other project rights may also require separate descriptions. If these issues are not coordinated early, they can create delays when title policies, surveys, memoranda, and financing documents need to align.
Mortgages, deeds of trust, and liens are another recurring category. If a landowner’s mortgage is senior to the project lease or easement, the project will typically need a subordination or a nondisturbance agreement confirming that the project rights will not be disturbed if the mortgage is foreclosed. Other liens or foreclosure matters can also affect the project’s land rights. Without appropriate curative work, a buyer or financing party may be concerned that the project’s site control rights could be impaired by a superior interest.
Access issues also appear frequently. Renewable energy projects often rely on access rights across multiple parcels, public roads, private roads, or utility corridors. A lease may provide access across the leased premises, but not reach all property within the project. In other cases, existing access easements may be sufficient during development for certain uses, but may be too narrow, nonassignable, or otherwise unsuitable for construction or operations traffic. Additional turning radius, crane path, or laydown rights may become necessary after title and survey review.
Third party easements and rights-of-way are another frequent source of curative work. Utility, pipeline, road, and other recorded easements can affect project design. Some may be compatible with the project. Others may require crossing agreements, releases, relocations, or layout adjustments. A project team should identify third party easements, have them plotted on the survey where possible, evaluate restrictive language, determine whether crossing agreements or other consents are needed, and coordinate with easement holders.
Mineral rights also create recurring title curative issues. In many states, severed mineral interests, oil and gas leases, and related instruments can affect surface use and project operations. A solar project may require surface waivers, accommodation agreements, drill site set asides, affidavits of nonproduction, or title insurance solutions. A wind project may require analysis of facility locations and potential interference with mineral development. The appropriate approach depends on the title record, applicable law, project layout, title company requirements, and the risk tolerance of buyers and financing parties.
Other problematic encumbrances can include prior renewable energy leases, deed restrictions, options, surface use agreements, boundary disputes, or other recorded claims that could impair the project’s intended use. Some issues can be cleared by standard title company requirements. Others require legal analysis, negotiation, project specific risk allocation, or a development decision about whether the parcel remains worth pursuing.
Each title issue calls for a separate assessment of the rights affected, the documents or other steps needed, and the deadline for resolving it. Some issues must be addressed before the developer commits to a parcel. Others can be resolved as the project advances.
The Difference Between Title Exceptions and Project Risks
Not every title exception is a project problem.
Renewable energy projects frequently involve large properties with long title histories. A title commitment may list numerous exceptions. Some may have no practical effect on the project. Others may be acceptable with title insurance coverage, construction protocols, or a project layout adjustment. Others may require curative instruments before closing.
To evaluate a title exception, the reviewer needs to understand the project layout, the intended uses of the property, and the rights the project will need.
The same title exception may have different significance depending on whether it affects a buildable area for generating facilities, an access route, or other project areas. A utility easement crossing the edge of a large parcel may be manageable. The same easement crossing a planned solar array may be more problematic. A mortgage may be manageable if the lender is cooperative, but problematic if the lender is unresponsive or refuses to enter into a subordination or nondisturbance agreement.
Title review should continue as development plans change. The reviewer needs to determine which exceptions affect the project and how to address them, rather than seek removal of every exception from the title commitment.
Title Curative and Project Finance
Title curative becomes especially important when a project approaches financing.
Lenders need confidence that the borrower’s real property rights support the collateral package. A leasehold mortgage or deed of trust is only as strong as the underlying leasehold or easement rights. If those rights are subject to senior interests that can impair the project, the lender may require additional curative documents.
Title companies also play a central role. They must determine what can be insured, what exceptions must remain, what endorsements can be issued, and what requirements must be satisfied before closing.
Title and survey are closely connected. The surveyor relies on the title commitment to plot easements, encroachments, and other matters affecting the property. The title company relies on the survey to issue certain endorsements or to determine whether particular exceptions can be modified, insured over, or removed. If the legal descriptions in site control documents, survey, title commitment, and financing documents do not align, the project can encounter closing issues.
An unresolved issue may prevent the title company from issuing the required coverage. Even where the title company is willing to insure, the lender may require additional documents or other protection before funding.
Starting this work early gives the developer time to obtain documents and resolve disagreements before financing is scheduled to close.
A developer that identifies title issues early can prioritize the items most likely to affect financing. It can contact landowner mortgage lenders while there is still time to negotiate subordinations or nondisturbance agreements. It can pursue crossing agreements before construction begins. It can address mineral waivers or surface use agreements before an unresolved mineral issue prevents issuance of the required title coverage. It can correct legal descriptions before the title company prepares final policies and resolve authority and ownership questions before a buyer requires them to be addressed at closing.
A developer that waits until final diligence may still be able to solve the same issues, but with less time to negotiate and a greater risk of delaying closing.
Title Curative in Project Sales and Portfolio Transactions
Title issues are also important in project sales and portfolio transactions.
Buyers of renewable energy projects often conduct detailed diligence on site control documents, title commitments, surveys, recorded instruments, and outstanding curative work. They need to confirm that the leases and easements support their plans for financing, construction, operation, and a future sale of the project.
A project with unresolved title issues may still have value, but the issues can affect purchase agreement structure. A buyer may require curative work as a condition to closing. It may seek specific closing or post closing deliverables. It may exclude certain parcels or require layout changes. In some cases, title issues can delay closing or reduce buyer confidence in the project.
These concerns can be harder to manage in portfolio transactions. A few curative items on one project may be manageable. Dozens or hundreds of unresolved items across a portfolio require considerably more review and coordination. The buyer may need to determine which issues must be resolved before closing, which can be addressed afterward, and which affect the purchase price or require the seller to retain responsibility. The seller may need to identify who will resolve each item and when that work can be completed.
For developers planning to sell projects, organized title materials and a clear record of completed and outstanding curative work help buyers assess what remains to be done. They also reduce the time spent reconstructing prior review and following up on missing documents.
Building a Practical Title Curative Plan
A useful title curative plan begins with prioritization. Not every issue deserves the same level of attention. Some matters can be handled through standard title company requirements. Others affect sale, financing, construction, operations, or whether the project should continue to rely on a particular parcel.
A practical curative plan should identify the issue, the affected parcel or project right, the required curative action, the responsible party, the current status, and the timing sensitivity. Because project rights can change as layouts, documents, title commitments, and surveys are revised, the plan should be revisited before the project is marketed, financed, or moved into construction. It should also distinguish between items that must be resolved before sale, financing, construction, title policy issuance, or closing, and items that can be addressed later without materially affecting the project. That distinction helps the developer focus on the issues most likely to create closing delays.
A Note on Our Practice
Title curative work for renewable energy projects requires familiarity with project development, real estate law, title insurance, and project finance.
It requires understanding how title issues affect not only the real property record, but also project construction, operations, and buyer and financing party requirements. It also requires judgment about which issues are material, which require curative instruments, and which can be insured over.
In our practice, we regularly assist renewable energy project developers with title review, title curative, site control diligence, lease and easement review, and other real estate support for project sales and financings. That work includes curative strategy, document drafting, title company coordination, and, where appropriate, coordination with counsel for landowners, mortgagees, easement holders, and other third parties.
Conclusion
Title curative work can determine whether a renewable energy project has the land rights it needs for sale, financing, construction, and operations.
A project may have favorable commercial terms and signed site control documents, but still face problems if ownership defects, superior interests, or restrictions remain unresolved. Early title review gives developers time to understand those issues before a closing deadline is set. A curative plan helps the developer assign responsibility, obtain the necessary documents, and coordinate with third parties and title companies while there is still time to resolve delays.
If you are preparing a renewable energy project for sale, financing, construction, operations, or title insurance review, or if title curative issues have been identified on an existing project or portfolio, we would be happy to discuss the curative plan, required curative documents, title company coordination, and any third party coordination needed to advance the project.
Disclaimer
The information contained in this article is provided for general informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt or use of it does not establish, an attorney-client relationship. Nacelle, PLLC disclaims all liability for damages of any kind arising from the use of, reference to, or reliance upon any information contained herein. You should consult a qualified attorney regarding any matter affecting your legal rights.
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