Abbott & Costello: Who’s on Title?
by Harry Kapp
“Who’s on 1st, What’s on 2nd and I Don’t Know is on 3rd” comes from one of Abbott & Costello’s most famous comedy routines and, unfortunately, it is often the hurdle that is faced when trying to establish who signed your agreement for an upgrade or site acquisition. For example, your original lease may be with ABC Corporation but your amendment has been signed by DEF Corporation or ABC, LLP. Chain of title refers to having supporting documents for each change in ownership. In other words, you should have support for each link between owners and entities in order to have a complete chain of title. Simply stating that the new owner is “formerly known as” or “successor in interest to” the original owner is just not enough. You need proof. Ideally, this can be accomplished by ordering a title report. However, this can be costly and time consuming. As a result, you often see carrier programs calling for a more streamlined property ownership analysis where the site acquisition specialist is asked to piece together the chain of transfers tying the original landlord in the lease to the current landlord with whom the site acquisition specialist is negotiating.
The change in ownership can be documented in many ways. For example, there may be a deed, assignment, merger, name change, judicial order or, perhaps, the Grim Reaper may have effected a change in ownership. The problem arises when documents are not available. Too often, the current owner, which may even be your own client, has no clue as to where the documents may be and is probably wondering why you are even asking. After all, you are working on the 4th amendment and you are asking for proof of how ownership changed from the 2nd to the 3rd amendment. Often the explanation is that their own legal department requires that the chain of title be shown. But simply stated, without the proper paper trail between successive parties, you may have a break in the chain of title and no way to prove that the owner is indeed the current owner. So the hunt is on to track down the missing pieces of the puzzle to perfect your chain of title.
Initially, your best source is the tower owner or current lessee. If that is not successful, you can also check the websites of Secretary of State Offices for the state in which a company is incorporated. When examining the chain of title, think of corporations as people. Any variation in name indicates that you are dealing with a new person/ entity. State websites often have links to the state’s corporation division. It is here that you may find a merger document, evidence of the creation or dissolution of a corporation, or evidence of the change from a corporation to an LLP ( i.e., from a corporation to a partnership). Internet searches can sometimes help as well.
Hopefully, your search is successful. If not, there may still be a way out of your dilemma. If you are really stuck and have made a diligent but unsuccessful effort to find the answers, you may be able to convince the current owner to warrant and represent in your new amendment that they are indeed the current owner, and indemnify you for any breach.
In this current environment where carriers are focused on the costs and delays in project deployments, now more than ever, site acquisition specialists are being called upon to come up with creative solutions to avoid Abbott & Costello quality leases and lease packages.