Can a HOA convey property, by Statutory Warranty Deed, for a portion of a Tract, in a plat, described as a non-exclusive community drain-field & utilities easement, to a water district, without a survey or subdivision?
It's about 1/3rd of an acre out of 15.5 acres.
This is in Washington State; but I wouldn't mind hearing how other states might handle this.
Thanks in advance:
Dougie
That is a very specific question. It probably depends on a number of factors including title and state regs.
I did experience something similar that turned into a gnat-fugg. At a private lake, built in the thirties, there exists a voluntary HOA. Through the years and legal channels, this HOA became "custodial" to a number of lots that surround the lake. Some of these lots had been dedicated to the "property owners" at platting. Most of them became boat ramps and public areas. There were three tucked up against the dam that were actually unusable because of the grade.
The HOA attempted to sell these 3 lots to an adjoining owner and the fight was on. It all hinged on the fact the current voluntary HOA had nothing to do with the original HOA that dried up and blew away.
Through several hearings and suits it was determined that the current "voluntary" HOA (only about half of the folks that lived there were members) did not represent all of the "property owners", who had been determined to be the actual title holders of the stray lots.
Good luck with any interests you may have in that.
Lots going on in that one...
If the HOA held title and the Deed conformed to Title 64.04 I would say yes they can. In all likelihood they would be in hot water with the local planning authority.
Maybe I'm missing the point of the question. Are you asking do they have authority?
> That is a very specific question. It probably depends on a number of factors including title and state regs.
The HOA is listed as the tax payer. The property has a 2,000 gallon water tank and an out building, housing valves, regulators and other water appurtenance.
> The HOA attempted to sell these 3 lots to an adjoining owner and the fight was on. It all hinged on the fact the current voluntary HOA had nothing to do with the original HOA that dried up and blew away.
The HOA is deeding this property to a water district; I doubt it will ever be in private hands, but then I've seen stranger things happen....
> Good luck with any interests you may have in that.
No interest; I have been asked by an engineer to assist in preparing the documents.
> Maybe I'm missing the point of the question. Are you asking do they have authority?
My concern is: what am I getting myself into. Originally, the engineer asked me to review "his description". It was poorly written so, I fixed it and sent it back to him. Now he wants an exhibit map with my stamp and I have not made a site visit.
Thank you for the wake up call:
> RCW 64.04.030
Warranty deed — Form and effect.
Warranty deeds for the conveyance of land may be substantially in the following form, without express covenants:
The grantor (here insert the name or names and place or residence) for and in consideration of (here insert consideration) in hand paid, conveys and warrants to (here insert the grantee's name or names) the following described real estate (here insert description), situated in the county of . . . . . ., state of Washington. Dated this . . . . day of . . . . . ., 19. . .
Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple to the grantee, his or her heirs and assigns, with covenants on the part of the grantor: (1) That at the time of the making and delivery of such deed he or she was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all encumbrances; and (3) that he or she warrants to the grantee, his or her heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same, and such covenants shall be obligatory upon any grantor, his or her heirs and personal representatives, as fully and with like effect as if written at full length in such deed.
[2012 c 117 § 186; 1929 c 33 § 9; RRS § 10552. Prior: 1886 p 177 § 3.]
The county planning department may have a problem with this, if they ever apply for a permit; and what affect would this have on my personal suffrage....o.O
It's not clear what they want to do exactly because you mention conveyance of both fee and easement. Under California rules, if the HOA owns the property, of course they could grant an easement. Whether or not regulators would permit the uses allowed by the easement is another story. If they want to grant fee (subdivide off a piece), the grant is not considered a subdivision due to exemptions given for conveyances to public entities. They would still be subject to land use regulations.
Edit: What do your subdivision regulations say? What do land use regulations for the subject property and adjoining properties say? Re: warranty deeds, we don't do those and all I can say is I'm happy 'bout dat!
I believe it may be different in every state. Personally, I will never work for an HOA without a retainer in at least 100% of my expected fee.
Check your local subdivision regulations. In alaska that would be a subdivision and require platting authority approval.
I wouldn't involve myself in any fee transfer that I didn't survey. You are spot on wanting to remain in the good graces of the local planners...
Doug
Short answer is no a HOA cannot subdivide (create a new tract) without processing through RCW 58.17 There are exemptions listed in RCW 58.17.040 but your situation does not appear to fit.
A well crafted easement could likely serve the same purpose or one would have to go down the subdivision road. I never prepare a conveyance document, easement or deed or whatever. That is a function of law something that I am not licensed to do.
You could write the description and prepare a sketch (both of which must bear your seal) and provide it to your client with an acknowledgment that the use of which is at the clients peril.
I do not recommend preparing a description without a proper title insurance certificate. You may find that if you submit your description to a title company for said certificate that they may not issue a policy anyway.
Keep in mind that Tracts are sometimes linked with open space calculations and by subdividing one for other purposes, unless specifically allowed by the underlying Plat, you may violate the approval of the subdivision. Tricky business; but you already knew that.
Thanks Dan,
I called the county engineer and he pointed me to the county code:
18F.10.060 Exemptions and Exclusions
A. Exemptions. The following land division actions are exempt from the provisions of this Title:
.
.
.
7. Divisions of land for use solely for the installation of electric power, natural gas, telephone, water supply, sewer service, petroleum pipelines, or County utility facilities of a similar or related nature; provided, however, that any remaining lot that is nonconforming with regard to density and size shall be at least of adequate size to accommodate required zoning setbacks and able to meet minimum onsite sewage disposal requirements in the event that sewer lines are not available within 300 feet.
Tricky business; indeed....
