3.2   Obtain Title Report

Obtaining and reviewing a title report for the land and resources is part of performing proper due diligence. The title report will determine:

• Who owns or leases the site; and
• Whether there are existing easements, rights, or other encumbrances over the site.

Ownership documents are normally filed at courthouses or statehouses. Leases and easements may be similarly filed, or they may be filed at the authorizing agency's office. The ownership, leasing, and easement documents should be examined to make sure there are no liens against the property/resources or any defect in the title. The product of a title search may be a title report, an attorney's certificate of title, a title abstract, or an insurance company's title commitment (Title binder) that is used in the issuance of a title insurance policy.

Ocean and Coastal-specific Issues: Encumbrances on or defects in the title may affect negotiations in the deal. For intertidal and subtidal lands and resources, it is common to have restrictions related to tribal rights, the Public Trust Doctrine, other leases and utility easements, boundary disputes, shipping and boating, and potential contamination.

Commodity Interests: Besides liens, leases, and easements there are other partial interests in title that can affect the long term viability of a conservation project (or at least contribute to future conflicts). Not the least of these are mineral rights (e.g., oil & gas exploration) and shellfish harvesting rights (tribal or otherwise). The former can easily be included in a title report request. The latter will probably take additional research or collaboration with affected parties.

In most cases dealing with public lands, you will not be able to obtain mineral rights, even if you manage to acquire the property in fee title. However, this can be mitigated by ensuring that the terms of the conservation plan clearly preclude on-site exploration and extraction. In less than-fee title acquisition, agencies may issue long term (but not perpetual) withdrawals from mineral exploration and purposes.

Title Report Review: Unless you have substantial knowledge of title issues, surveying principles and the like, it may be advisable to get an expert review of the title report for completeness and accuracy. Special focus should be on any “exceptions” noted in the title report—the potential implications of these “exceptions” may not always be self-evident.