Ok, so I am running some research for a division of land. A property adjacent to my client's was subdivided in the 60's. This created 3 lots, one without frontage. The plan notes specifically state that the lot without frontage would be combined with another property. Easy enough. This merger was compliant with the zoning at the time but would not be in 2005 as the lot to be merged with is undersized by today's standards.
In 2005, an attorney saw the record of these two lots, ignored the notes on the plan and created a conveyance of the lot without frontage to another individual. Now there is a lot without frontage and there was never approval for this to be it's own lot and there is a lot that is undersized.
This looks to be a division without Planning Board approval or a violation of the 1965 approval.
The Planning Board cannot compel a transfer of property, or course...nor can an ANR plan (Approval Not Required for the non-MA surveyors) condition the endorsement.
The problem lies with the original owner in the 60's. Did they not convey the lot as indicated on the plan? Apparently NOT! The owners lawyer of the time should have completed their work and made the conveyance!
So, from your post, I assume the land locked parcel is still owned by the 60's developer, or heirs? And now 40 years later, some smart lawyer down your neck of the woods (I wonder who?) makes a conveyance of a land locked parcel presumably without access rights? I hope that someone files a complaint with the Bar!!!!!
OK, you have a lot outside of the division that is out of compliance, you have a lot within the division that is landlocked. The owners have the right to convey their property and do it in a way that is in compliance or they can convey it in a manner that is not in compliance. Both convey ownership, do not see a surveying related problem, the owners probably can't obtain any building permits and it would be a long shot to obtain any financing until the lots were brought into compliance. An owners problem, they probably need some advice as to what their options are. Anyone who would sign or prepare a plat with the statement that something will be done without enforcement may have some liability for damages, civil, not criminal.
jud
sorry, i was using the subtle terms
the 1965 subdivision was an approval required plan
the plan has notes specifically stating:
1. that the road is adequate for lots 1 and 2 only
2. that the landlocked lot (3) will be conveyed to a specific abutter. we would have a similar note today but would specify that the lot or parcel would be conveyed to an abutting lot for building purposes.
the records show that the previous owner did convey Lot 3 to the abutter. they never modified the access and still use the common driveway over lots 1 and 2.
two of the three buildings that existed when the 1965 subdivision (AR) plan was filed were constructed after 1954, so there is no 81-L division. in 65, this could have been completed with an ANR division with the specific conveyance to maintain the compliance of the 3rd lot, but it looks like they went through the AR process.
the conveyance of this landlocked parcel creates a bit of a problem
the fact that the access is still over lots 1 and 2 is another issue
as my client has to upgrade the road to divide their property (adequacy of way through an 81-P ANR division) it would be in my client's best interest to force the attorney to resolve the issue by upgrading the road and going to the Board of Appeals to acquire the permission to alleviate the need for frontage for this lot. not sure if he could get the variance, but he's the one who allowed the deal to go through.
don, i'm sure you know the guy. he's got an old cape name.
the notes on the plan are typical, they are usually based on negotiation with the planning board.
we create unbuildable parcels all the time for land swaps and other conveyances. those need to be combined with adjacent properties for building purposes. we are required to put notes on the plan explaining this.
the big problem is: who besides me will pick up on this? maybe don if he has to survey in this area.
LOL I hate it when I find a division by deed and not in compliance with the subdivision control law. An old Cape Cod name? hmmm, I dont' know any Eldredge lawyers, Nickerson's or Snow's either...hmmmm
nice catch Thadd...who ya gonna get to fix it? Will the client make a complaint?
my client has to bring the road up to a standard to make it adequate for the division of their land. lot 3 is two lots removed and on the other side of the road. it was all one owner.
you ever read about the sunday afternoon spectators in the history of harwich? there was a particular family that was fun to watch.
Landlocked parcels are always a problem. Anybody can sell anything they want if somebody will buy it. Everything is fine in terms of legal conveyances (the lawyered up part) all you need is a deed. We can even survey it and set corners.
Until they try and get a building permit. Then it becomes the new owners problem. Due diligence comes to mind. They didn't do their homework, especially on older parcels. Often times they cheapened out, didn't get a survey, listened to the realtor, GIS didn't show it, etc. Nowadays you can't really create landlocked parcels (except maybe lot line adjustments), but for years you could. Especially if it abutted public land.
How many times have we come into a survey that people have owned for 5 or 10 yrs and finally decide to build. Then the fertilizer hits the ventilator when we inform them that they are landlocked, or the physical access is 200' outside the easement, they in a flood zone, or the lot is nonconforming in some way (setbacks, area). We try and offer solutions and ways to fix their problems, but sometimes its a real challenge.
This stuff can be a bad attorney problem, but usually it's an uninformed and underfunded buyers problem.
This one is all bad attorney. The properties are not financed. When they go for a building permit without frontage, but access over some other lots, it may get kicked to the Board of Appeals, but if they only propose a little project (increase of less than 25% of the floor area), they will probably get a building permit. It'll just slip through the cracks unless a neighbor is peeved and hires a competent attorney to research the issue.
I know what you mean about those ones that you "...just want to go away...". We can pull rabbits from our hats but sometimes we can't fix stupid and wrong, especially if bordering on reckless. So you just CYA and cash the check.
Good luck
Wayne,
I have often been able to fix ignorant and a few other things. But I gave up on trying to fix stupid long ago. I have NEVER been able to fix stupid.:-(
The only fix I know of for stupid that actually works isn't legal in most jurisdictions.;-)
I frequently find minor subdivisions that I prepared that didn't get the proper approvals, but the lots were deeded off anyway. My opinion is that I am not the planning police. I tell my clients what to do and if they don't, it's not my problem.
> I frequently find minor subdivisions that I prepared that didn't get the proper approvals, but the lots were deeded off anyway. My opinion is that I am not the planning police. I tell my clients what to do and if they don't, it's not my problem.
So in other words, a guy with 40 acres wants to create four ten acre parcels in a minor subdivison that requires no county/city approval. You don't check the zoning to see if he needs for it to be rezoned so people can get building permits. Just go stake the parcels, write the legals, record your survey, and move on. They all sell. Everything is perfectly legal.
Owner of Parcel A wants to build 5 yrs later, but discovers the parcel is still zoned 40 acres and will need to be rezoned to 10 acres. The county fee is $800 for the re-zone, and takes 3 months. Parcel B wants to build a year later and discovered the same thing. etc etc
Granted these buyers were a bit lacking by not checking before they bought. But don't you think the original seller should bare the cost of the rezone, which likely would have been $800 for all of them. The survey cost would be the same regardless.
That exact scenario is quite common around here. These landowners go ballistic when they find out what happened, because these subsequent rezones now cost them quite a bit more for fees and a new survey.
That rezoning stuff sounds interesting, it isn't spot zoning? Perhaps just illegal here...
You can create a minor subdivision that results in unbuildable lots? Interesting.
We can create unbuildable lots but we have to put a note on the plan that:
Parcel A lacks insufficient area and or frontage to comply with zoning and shall be combined with an adjacent property for building purposes. (More or less, some towns have a stamp with the phrase that they tag your plan with if you submit without the note)
Would Not The Adjoining Lot Now Own The Parcel ?
A filed map is a form of conveyance. Once either of the 2 frontage lots was transferred the intent of the map was perfected. That attorney may have in fact sold something that the seller did not own.
Unless that us if the adjoiner failed to pay taxes on his additional land and the resulting lot without frontage went for tax sale.
In any case the lawyer may have to provide for access and other expenses with his own money.
Paul in PA
Would Not The Adjoining Lot Now Own The Parcel ?
nowadays a full subdivision plan is more of a commitment than it was back in 65. our subdivision rules are a bit funny and even now the division plans don't really come with a commitment. you can divide and divide and nothing really counts until the first conveyance. i would take the 65 subdivision in a similar light as there probably were not a statement of conditions or covenant as these documents should have been recorded.
the first conveyance out in 65 was the third lot to the abutter. the developer fulfilled the obligation as described on the plan. the zoning of the time allowed for multiple houses on single lots and the combination of the two lots constituted a conforming lot.
once this conveyance occurred, the subdivision was executed and I would guess that the lots in question were constructively merged. Unfortunately, they did not have to go back and create a new plan showing one lot, it's just how it was, shoddy record keeping. the first conveyance should have included something about the merger and this should have been carried through the deeds to today.
so, in 2005, the attorney missed the record and conveyed something that he could not convey. this looks to constitute a division by deed, which is not allowed in these parts unless you are the federal government.
We don't have zoning outside the city here, so what you bring up isn't a problem. I reserve the right to change my opinion if the scourge of zoning is instituted in the rural areas.
why rezone?
?
If there is no zoning then why do you need to pay $800 to rezone a 10 acre lot
?
GIS GOT IT RIGHT, for once
Just checked out the parcels in the GIS assessors' layer from 2000.
It showed the lots merged.
> > We can create unbuildable lots but we have to put a note on the plan that:
> Parcel A lacks insufficient area and or frontage to comply with zoning and shall be combined with an adjacent property for building purposes. (More or less, some towns have a stamp with the phrase that they tag your plan with if you submit without the note)
Those kinds of notes won't fly around here. It is essentially certifying to a future event, and likely include parties not even currently involved. They would require those parcels combined as part of the survey.
The whole rezone thing is kind of a PIA to people, mostly because they're uninformed. There are tons of 2.5 acre lots around here zoned 2 ac. They build on one side, live there awhile, then just sell half or want to give it to their kids. Perfectly legal by statute, but not in conformance with local zoning, thus the rezone.
Same thing with the 40 acre example. Sell them off by aliquot splits. They don't even need a survey. All perfectly legal. But if current zoning is 36 ac, nobody will get a permit until they jump through the hoops.
Those rezone hoops include the $6-800 county fee, another $800 or so for somebody to complete the application (hopefully me), and completion of a minor subdivision plat (another $2K or so) which goes through the review & approval process. Plus they just lost about 6 months. If the original seller would have done it properly, all that would be avoided. Instead, each of those 10 ac owners need to jump when they want a permit.
