Site control and the management of public lands and improvements in a community is a normal part of local government operations. Having site control means that an organization or individual has a legally recognized right to use real property. Site control ensures that the owner of improvements will be able to control actions on the land that might have an effect on the improvements. As an example, think about building your home on property that belongs to another person. It is unlikely that a homeowner would be willing to make that kind of investment without having a secure interest in the real property being built on and the same holds true for the construction of community projects. It is unlikely that anyone would want to invest in a structure unless they had a document from the landowner conveying an interest in the land.

There have been cases where community development projects funded with public money have been built on private property without permission from the landowner. This of course creates problems for both the landowner and the entity that owns the improvements. Delays or serious legal problems can be avoided by addressing site control early in the project planning process.

To find out more about how a typical municipality manages its lands you may want to view the DCRA sample land management ordinance. The ordinance sets out the policies and procedures for the acquisition and management of municipal land. For information about management of municipal trust land in unincorporated Alaska Native Claims Act (ANCSA) villages see the Alaska Administrative Code (3 AAC 190. 010 - 990) and/or contact the DCRA Municipal Lands Trust Officer.

What is Site Control?

Simply put, site control is the legal right to use a particular piece of land - also known as real property. Real property law requires that long term permission to use land is in writing - verbal agreement is not enough. A written agreement to use real property makes it clear what the details are and what each party intended. A written agreement prevents situations arising that affect the right to use the land, such as a person changing his or her mind, the land changing hands, or the person not even having the authority to give permission.

The most common forms of written authorization to use land are a deed, lease, or easement. Each type of authorization conveys a different right and interest in the land. Which type of document to use depends on the level of site control needed. Most funding agencies require that a land use right equal the useful life of the improvements. As an example, if a building is determined to have a useful life of 20 years, then at a minimum site control should establish an exclusive right to use the land for the intended purpose for at least 20 years.

Why is site control important?

Site control is important because it establishes a right to control the real property that improvements will be placed on. Without site control, money spent on improvements may be wasted. It is particularly important to establish site control to ensure the safety of the public's long term investment in a public facility or land improvement.

Also, failure to obtain site control could result in a lawsuit filed by the landowner for property damage if the property is disturbed or altered in any way.

At what point in a capital improvement project is site control needed?

Site control options should be one of the items considered in the planning phase of a capital improvement project (CIP). The difficulty involved to obtain site control may influence site selection and design. Most funding agencies and grant programs ask grant applicants how they will obtain site control. Some grant programs even consider site control in the scoring and award of grants. Actual site control in the form of signed documents is usually required before grant money is released for the purchase of materials or construction.

How can I obtain a map of the community that identifies land boundaries and land use?

DCRA has aerial photo based community profile maps of many Alaskan communities. The maps are a "snap shot" in time regarding land use and boundaries. The maps do not reflect a recorder's office title search and may not depict current legal boundaries and land ownership; however, they are a very useful starting place for site control research.

How do you decide what level of site control is needed?

The level of site control needed for a project depends on the nature of the project. For example, if a permanent building is planned, you should either receive title to the land by deed or a right to use the land for the life of the structure. If site control for a permanent building or facility is obtained through a lease, the lease should be for a term of equal to the anticipated useful life of the building, which in most cases would not be less than 20 years.

If the project is for the construction of linear facilities, such as utility lines, an easement may be adequate for site control. For short term uses, a permit or license could be considered adequate.

How do I go about obtaining site control?

The following steps are a broad overview of what is involved in a typical site control process:

1. Determine how much land is needed for the project.
2. Decide the location (site) of the project.
3. Determine who owns the land.
4. Make sure there are no conflicts of record. (No one else claims to own the land.)
5. Decide what type of interest you need (fee title, lease, easement).
6. Determine how to obtain the land (or interest in it)-- purchase, lease, 14(c)(3) reconveyance, eminent domain or donation.
7. Negotiate with the owner of the land.
8. Receive the transfer document from the owner.
9. Make sure the transfer documents are properly executed (signed and sealed) and legally binding (It is a good idea to have an attorney review the conveyance process and documents).
10. Record the transfer document in the proper recording office.

How do I determine who owns the land?

Actual ownership needs to be established early through a process known as a "title search." This process will identify any land transfers that may have occurred or restrictions (encumbrances) that may exist that may limit the use of the land. The term "subject to" is sometimes used to refer to these limits. The only way to know for sure who owns the land and what the land may be "subject to" is to find out the history of the parcel from original conveyance to present. This process is called a title search. Land title researchers will collect and examine the documents in the "chain of title" to determine who owns the property and if there is "clear title."

Since all land in Alaska was once owned by the federal government, the chain of title on all property begins with the federal government. The Bureau of Land Management (BLM) has records of land conveyances from the federal government to entities such as Native allottees, Native corporations, the State of Alaska, the federal townsite trustee, and homesteaders. The BLM records will only show those activities that involve the federal government. Any action on the land after transfer by the federal government will be tracked through the state recorder's office and will not appear on the BLM's records. The State of Alaska's recorder's office system allows landowners to record conveyances of land, which provides "constructive notice" of land transfers.

How is title researched in the recorder's office?

Title researchers will examine each land transfer document in the records to determine if restrictions, exclusions, or defects exist on the title or if any previous title transfer was not properly carried out.

Are there other places containing information that should also be researched?

Yes, researching the chain of title for a parcel of land at the recorder's office may not reveal all of the actions affecting ownership. A good deal of land in some communities has changed ownership as a result of ANCSA and other laws. A conveyance by a village corporation that has not completed its land conveyance obligations under section 14(c) of ANCSA may be subject to a claim under ANCSA for a primary place of residence, a primary place of business and subsistence, land occupied by a non-profit, land for existing and future community use, and land for airports that existed at the time the act passed. The proper completion of the 14(c) conveyance process extinguishes potential claims and removes any "cloud" on the title conveyed by a village corporation.

DCRA's Community Database Online includes information on the status of a village's ANCSA 14(c) process. For an official determination of the completion of the 14(c) process contact the BLM division of cadastral survey. For additional information about what constitutes an ANCSA 14(c) land claim see the publication "Getting Started on 14(c)(3)" and the Additional Resources section below.

Are there any web sites that are useful for a title search?

An on-line index of recorded documents now exists for Alaska recording districts. While the system does not usually allow for the viewing of the documents themselves on-line, it does let you know that the document exists and gives you some important information about it. The index can be viewed at the Alaska Department of Natural Resources Recorder's Office web site. The web site also has an index that matches each community by name with its appropriate recording district.

What other factors should be considered when obtaining site control?

The land may contain unrecorded conveyances or difficult to research encumbrances (valid existing rights) or restrictions. It is a good idea to ask around about the site and history of its use. Locals may know of conveyances that have occurred but have not been recorded. Also, if the land is in an area where there has been mining, there is the potential for conflict with mining claims of record. Revised Statute 2477 from the Mining Act of 1866 allowed for the creation of trails and roads without application to the federal government, which are considered valid existing rights. Check the appropriate federal and state land records for mining claims, RS 2477s, or other encumbrances to make sure there are no conflicts.

Should I be concerned about the subsurface estate of the property?

Yes. Always determine whether the person or entity that is conveying the property owns the subsurface under the property. In Alaska the resources under the ground and the right to dig them up are often owned by the State of Alaska or are still reserved by the federal government. If the site is on land that has been conveyed to a village corporation pursuant to ANCSA, the regional corporation (in most cases) owns the subsurface estate. This includes ANCSA 14(c) land transfers. Any use or removal of subsurface resources, including gravel, requires permission from the subsurface owner. The 1994, 9 ^th Circuit Court of Appeals ruling Koniag v. Koncor Forest Resource sheds some light on the extent of several of the rights and benefits associated with the ANCSA-created surface and subsurface estates.

How do I obtain title from the current landowner?

Once it is established who the legal owner is, begin negotiations. There are several things to consider in these negotiations, such as how long the interest needs to be held; what type of interest needs to be obtained (deed, lease, permit); whether the land will be obtained through purchase or land grant.

Generally, for permanent structures, it is necessary to either obtain fee title (deed) to the land or a lease for a long enough period to cover the estimated life of the structure.

It is important to remember that the signed transfer documents must be legally binding. Title 34 of the Alaska Statutes (AS 34.15.010 - .250 ) contains information about the legal requirements for conveyances. For example:

• the deed (or other document) must contain a proper legal description and must name the parties;
• the transfer document must be in the correct legal format with a statement of consideration (payment);
• it must contain words of conveyance;
• it must have the necessary signatures with proper acknowledgments (notarized by a public notary or other authorized witness such as the postmaster);
• especially when dealing with corporations, it must be determined that the signers have the authority to sign and to commit the organization to the agreement; and
• the final step is to have the document recorded.

Note: You should talk with an attorney to make sure all of the documents are in the proper form and legally binding.

What are the methods available to a municipality to establish site control?

• Purchase -The most obvious method of obtaining title is to simply buy the property from the owner.
• Lease - If the owner does not want to sell the property, he or she may be willing to enter into a long-term lease.
• 14(c)(3) Reconveyance - If the proposed site for a community project is on land conveyed to a village corporation pursuant to ANCSA, the site may be subject to reconveyance under the terms of Section 14(c)(3) of ANCSA. Most ANCSA village corporations have a responsibility to reconvey certain land for community use and expansion under this law. However, title conveyed pursuant to Section 14(c)(3) may be defective if the village corporation has not completed its obligations under sections 214(c)(1) and (c)(2).
• Eminent Domain - This power is limited to incorporated municipalities and must be done through the courts. Eminent domain is the power to take private property for public use in a municipality and is the least desirable method of obtaining title. Fair compensation must be paid to the owner of the property taken. Second class cities can only exercise eminent domain against a parcel of property after approval is given by a majority of the voters in the community (AS 29.35.030.)
• Donation - A donation is a transfer of title to property by the owner without any payment. This is sometimes referred to as a "land grant."

After I have obtained site control is there anything else that needs to be done?

Yes. The document (deed, lease, easement, etc.) must be recorded in the appropriate district recorder's office. The recording requirements are set out in Title 34 (AS 34.15) of the Alaska Statutes. A document must meet certain standards before it will be accepted for recording. For example, the document must be properly acknowledged and witnessed. The document must contain the mailing address of the buyer (or grantee). The document must also have a 2 inch margin on the top of the 1 ^st page and 1 inch margins on the top, bottom and sides of the subsequent pages.

Alaska, along with several other states, has what is called a race/notice recording statute. Purchasers are expected to record their documents shortly after taking title. An unrecorded transfer or "wild deed" may become invalid if a "bona fide purchaser" takes title to the property. The rule of "first in time first in line" is applicable in Alaska provided the purchaser has 1) paid reasonable consideration for a property and 2) did not have notice of a prior conveyance. It is important that the deed or other document be recorded as soon as possible. The act of recording provides notice.