MD Surveyor, post: 385722, member: 10081 wrote: The recorded plat was signed and sealed by a licensed surveyor. I think you can make a good argument that the owner recognized the subdivision when he conveyed the first three lots from the plat.
I think you are correct. I am just saying without a formal declaration, around here, I believe it would be difficult to call it a 'Subdivision' or 'Plat' (Same thing).
He certainly has acknowledged it. And he conveyed property using it to define real property (Lots 2, 3, and 5). And a surveyor surveyed and signed it.
Would a standalone subdivision of that era be recorded somewhere else, or is it recorded in the correct county office? If it is in the correct office, then I think a good land use attorney could wipe the floor with the County planner guy.
MD Surveyor, post: 385739, member: 10081 wrote: The County subdivision ordinance states "any lot that was not duly recorded in the official land records of the county prior to adoptionÛ has to be granted final approval." The County Planner recognizes this but, the part he is struggling with is that the plat was recorded as part of various deeds and not as a separate subdivision plat so he doesn't believe that satisfies the "duly recorded" statement. He is referring the question to the County attorney who I assume will recognize that the plat was in fact recorded.
Does your county have Subdivision Books in the land records that predate the adoption of the subdivision ordinance? In the counties I've worked in (mostly PG, Montgomery, Frederick & Washington) while the subdivision ordinances were first adopted in the 1960-1975 range, there have been subdivision plats recorded in subdivision books since the 1920's at least. I can maybe see an argument that recording them in the deed books when the accepted local practice was to record them in the subdivision books making a difference in their opinion. Maybe
Still for planning and permitting purposes I think most counties would just consider this the same as an exist lot of record predating the ordinance.
I would say that it depends but since all
Monuments were set by the original surveyor at the time of the creation of all lots then all the monuments and lots are legal under the law at that time.
You just can't pick and choose which lots and monuments are valid.
James Fleming, post: 385741, member: 136 wrote: Does your county have Subdivision Books in the land records that predate the adoption of the subdivision ordinance? In the counties I've worked in (mostly PG, Montgomery, Frederick & Washington) while the subdivision ordinances were first adopted in the 1960-1975 range, there have been subdivision plats recorded in subdivision books since the 1920's at least. I can maybe see an argument that recording them in the deed books when the accepted local practice was to record them in the subdivision books making a difference in their opinion. Maybe
Still for planning and permitting purposes I think most counties would just consider this the same as an exist lot of record predating the ordinance.
This is the argument that the Planner is basically making without realizing it. The Garrett County subdivision ordinance was not adopted until 1997 and I believe the plat records have existed since the late 1800's but there are plenty of sudvision plats that have been recorded only in the deed books that the County recognizes. The plat records have been used predominately for oversized plats (larger than legal size). I am curious if this is the argument that the County attorney tries to make.
MD Surveyor, post: 385739, member: 10081 wrote: The County subdivision ordinance states "any lot that was not duly recorded in the official land records of the county prior to adoptionÛ has to be granted final approval." The County Planner recognizes this but, the part he is struggling with is that the plat was recorded as part of various deeds and not as a separate subdivision plat so he doesn't believe that satisfies the "duly recorded" statement. He is referring the question to the County attorney who I assume will recognize that the plat was in fact recorded.
Yes, sorry to not elaborate before. To be recognized as individual lots they need to be taxed as individual lots. Because your client submitted the map with a transaction or three does not mean the municipality recognized any of the other lots shown as needing to be split off (in fact in this case they didn't). But you can't pay taxes on say 100 acres as a whole and expect the municipality to later recognize it as 100 separate parcels merely because you filed your plan with a couple of transactions. Your client could have directed them to split the assessments when they didn't do it after the first filing if that was the clients intent. The client can still do that but will now have to comply with existing regulations (which for a fee you can help them do). In addition the evidence suggests the client did not want them split up because they filed the map each time rather than once with subsequent references to it (as is usually done). The client was trying to save money on taxes which is understandable, but now must deal with the other consequences.
MD Surveyor, post: 385739, member: 10081 wrote: The County subdivision ordinance states "any lot that was not duly recorded in the official land records of the county prior to adoptionÛ has to be granted final approval." The County Planner recognizes this but, the part he is struggling with is that the plat was recorded as part of various deeds and not as a separate subdivision plat so he doesn't believe that satisfies the "duly recorded" statement. He is referring the question to the County attorney who I assume will recognize that the plat was in fact recorded.
Many times the Counties adopted these to echo State statutes. Unfortunately they often change the language just enough to mislead us when figuring things out. At the end of the day if State Code validates the Plat it's valid. I would answer that question before putting my fortunes in the hands of the County.
Yes, State Statutes generally direct local agencies to adopt ordinances to regulate development through subdivision pursuant to General Plan guidelines, and will direct specified minimum requirements. At least out West.
Duane Frymire, post: 385747, member: 110 wrote: Yes, sorry to not elaborate before. To be recognized as individual lots they need to be taxed as individual lots. Because your client submitted the map with a transaction or three does not mean the municipality recognized any of the other lots shown as needing to be split off (in fact in this case they didn't). But you can't pay taxes on say 100 acres as a whole and expect the municipality to later recognize it as 100 separate parcels merely because you filed your plan with a couple of transactions. Your client could have directed them to split the assessments when they didn't do it after the first filing if that was the clients intent. The client can still do that but will now have to comply with existing regulations (which for a fee you can help them do). In addition the evidence suggests the client did not want them split up because they filed the map each time rather than once with subsequent references to it (as is usually done). The client was trying to save money on taxes which is understandable, but now must deal with the other consequences.
Yes, maybe in the end this becomes a question of tax money and legal opinions of an county attorney.
The landowner loses.
Too bad, because it appears that they did everything required at the time.
But it is headed for an attorney's desk, so they will try to suck every penny they can out if the landowner.
My opinion of attorneys today hit a new all time nadir in an unrelated matter.
Why would the landowner have to declare his tax assessment for the property? Isn't that the purview of the tax assessor?
Robert Hill, post: 385763, member: 378 wrote: Yes, maybe in the end this becomes a question of tax money and legal opinions of an county attorney.
The landowner loses.
Too bad, because it appears that they did everything required at the time.
But it is headed for an attorney's desk, so they will try to suck every penny they can out if the landowner.
My opinion of attorneys today hit a new all time nadir in an unrelated matter.Why would the landowner have to declare his tax assessment for the property? Isn't that the purview of the tax assessor?
So, you would have the tax assessor force an unwanted 6 lot subdivision on the landowner back when one lot was sold? Forcing the landowner to pay substantially higher taxes for the past 30 years? That might have cost the landowner more than doing it the way he/she apparently wanted to and did do it (one lot at a time and go through subdivision approval now that it's necessary).
Duane Frymire, post: 385747, member: 110 wrote: Yes, sorry to not elaborate before. To be recognized as individual lots they need to be taxed as individual lots. Because your client submitted the map with a transaction or three does not mean the municipality recognized any of the other lots shown as needing to be split off (in fact in this case they didn't). But you can't pay taxes on say 100 acres as a whole and expect the municipality to later recognize it as 100 separate parcels merely because you filed your plan with a couple of transactions. Your client could have directed them to split the assessments when they didn't do it after the first filing if that was the clients intent. The client can still do that but will now have to comply with existing regulations (which for a fee you can help them do). In addition the evidence suggests the client did not want them split up because they filed the map each time rather than once with subsequent references to it (as is usually done). The client was trying to save money on taxes which is understandable, but now must deal with the other consequences.
This is an interesting opinion. A couple of points regarding it:
At the time this subdivision was created there was no approval authority, subdivision ordinance, or zoning ordinance in any form. The client was free to do what he wanted with his land. I don't believe he is legally required to inform the tax assessor of changes to his real property.
I truly don't believe the client was attempting to save on taxes. When I mentioned taxes to the client his response was that he had been paying taxes on that land, he was unaware that the taxes would have been more if they were individual lots. It's very likely that the client never looked at a tax map to see if his lots were shown. Even if he had I don't think the Assessment office maps are compelling evidence as they are notoriously wrong and routinely exclude parcels that exist, and show parcels that don't exist, or show parcels miles from their true location.
According to your opinion, a surveyors work has to be validated by the Tax Assesment office. Lets say that the Assesment office recognized lots 1, 2, 3, and 4 according to the subdivision plat but, because of some error, they recognized lots 5 and 6 together as one lot. According to your opinion would that merge the two lots and invalidate the surveyor's lines between them?
Also, if your opinion is correct then even though the lines were run on the ground and corners set for all of the lots at the same time, the three lots that were conveyed would have senior title to the three lots that have not been conveyed as they don't yet exist. Does this mean that senior title for lots 2, 3, and 5 would be determined in the order that they were conveyed as the other lots didn't exist until they were sold?
The difference in tax assessment is not part of the argument, really. That is a bunch of foolishness in the first place. A bare acre or two of ground is worth the same until it is sold, especially when connected to other ground and used in identical manner.
The argument is that the private land owner acted within the laws at the time and had a six lot subdivision created that required no other action by whatever authorities felt they had some reason to be involved. Some of the lots were not sold. They were lots then. They are lots now. The County was fully aware that they existed. They should have been grandfathered in once a subdivision regulation was initiated, identically the same way they would have been treated had they been created in compliance with some pre-existing subdivision policy at the time of creation.
Duane Frymire, post: 385804, member: 110 wrote: So, you would have the tax assessor force an unwanted 6 lot subdivision on the landowner back when one lot was sold? Forcing the landowner to pay substantially higher taxes for the past 30 years? That might have cost the landowner more than doing it the way he/she apparently wanted to and did do it (one lot at a time and go through subdivision approval now that it's necessary).
You answered my question with a question. So I'll do the same.
So what is the ethical approach to
settle the matter?
Does one believe that the attorney is going to decide on the ethical approach?
MD Surveyor, post: 385805, member: 10081 wrote: This is an interesting opinion. A couple of points regarding it:
At the time this subdivision was created there was no approval authority, subdivision ordinance, or zoning ordinance in any form. The client was free to do what he wanted with his land. I don't believe he is legally required to inform the tax assessor of changes to his real property.
I truly don't believe the client was attempting to save on taxes. When I mentioned taxes to the client his response was that he had been paying taxes on that land, he was unaware that the taxes would have been more if they were individual lots. It's very likely that the client never looked at a tax map to see if his lots were shown. Even if he had I don't think the Assessment office maps are compelling evidence as they are notoriously wrong and routinely exclude parcels that exist, and show parcels that don't exist, or show parcels miles from their true location.
According to your opinion, a surveyors work has to be validated by the Tax Assesment office. Lets say that the Assesment office recognized lots 1, 2, 3, and 4 according to the subdivision plat but, because of some error, they recognized lots 5 and 6 together as one lot. According to your opinion would that merge the two lots and invalidate the surveyor's lines between them?
Also, if your opinion is correct then even though the lines were run on the ground and corners set for all of the lots at the same time, the three lots that were conveyed would have senior title to the three lots that have not been conveyed as they don't yet exist. Does this mean that senior title for lots 2, 3, and 5 would be determined in the order that they were conveyed as the other lots didn't exist until they were sold?
You are confusing the transfer and/or description of real property with regulations governing the use and assessment of real property. Whatever the reasons, the client needed to make sure the governmental agency recognized the subdivision if that's what the client intended. Nothing difficult about it as evidenced by the many subdivision maps that were filed and recognized and referred to over the years before formal subdivision regulations existed.
Robert Hill, post: 385807, member: 378 wrote: You answered my question with a question. So I'll do the same.
So what is the ethical approach to
settle the matter?
Does one believe that the attorney is going to decide on the ethical approach?
Well, if you believe the assessor at the time was unethical in not splitting all the lots and taxing them individually (contrary to one poster above, taxing as individual lots would substantially raise the tax burden in most jurisdictions), then I guess some attorney should go after that public employee (although they are usually immune from liability) and/or the agency that employed them with some sort of lawsuit? The client could claim damages for costs of going through current regulatory proceedings minus taxes they were not required to pay on individual lots v. consolidated over the years. I doubt that's going to come out well for the client even if they win.
As far as the current situation goes; is it ethical to allow one person in the community to avoid current regulations while requiring all others to comply with them?
Grandfathering is only allowed due to equitable valuation concerns. In fact, because the client still retains the lots, if the remaining lots are not in compliance with current regulations, most jurisdictions would allow/require them to be merged into complying lots even if they had been recognized as subdivided at one time. I'm just the messenger; that policy, while disliked by many, has been tested thoroughly in the courts and found constitutional. Some have tried to skirt that by conveying a lot to wife, family, friend, but the courts saw through that and said if you still have "control or influence" the lots will be merged.
Duane Frymire, post: 385810, member: 110 wrote: You are confusing the transfer and/or description of real property with regulations governing the use and assessment of real property. Whatever the reasons, the client needed to make sure the governmental agency recognized the subdivision if that's what the client intended. Nothing difficult about it as evidenced by the many subdivision maps that were filed and recognized and referred to over the years before formal subdivision regulations existed.
I don't think I am confusing the two. In your opinion the description of the real property is dependent on being recognized by the assesment office. I don't think that's the case and think if it was, it would create all kinds of issues. The only government agency that even existed for the first 12 years after the subdivision was completed was the Assesment Office. I don't think it's the clients responsibility to make sure the Assesment Office keeps accurate records.
Duane Frymire, post: 385804, member: 110 wrote: So, you would have the tax assessor force an unwanted 6 lot subdivision on the landowner back when one lot was sold? Forcing the landowner to pay substantially higher taxes for the past 30 years? That might have cost the landowner more than doing it the way he/she apparently wanted to and did do it (one lot at a time and go through subdivision approval now that it's necessary).
If the owner had only wanted to subdivide one lot at a time I assume they would have had a plat prepared that only showed the one lot that was being conveyed at the time. That's not the case, the owner has always thought that all six lots have existed and has made improvements based on that assumption. Like I said above it is not the landowners responsibility to make the Assesment Office records are accurate.
MD Surveyor, post: 385815, member: 10081 wrote: I don't think I am confusing the two. In your opinion the description of the real property is dependent on being recognized by the assesment office. I don't think that's the case and think if it was, it would create all kinds of issues. The only government agency that even existed for the first 12 years after the subdivision was completed was the Assesment Office. I don't think it's the clients responsibility to make sure the Assesment Office keeps accurate records.
If the owner had only wanted to subdivide one lot at a time I assume they would have had a plat prepared that only showed the one lot that was being conveyed at the time. That's not the case, the owner has always thought that all six lots have existed and has made improvements based on that assumption. Like I said above it is not the landowners responsibility to make the Assesment Office records are accurate.
In my opinion, legally you're wrong on all counts, but I'm not an attorney. But if the improvements are substantial the municipality might waive some requirements out of the goodness of their hearts. Problem with that is someone else might sue them for unfair application of current regulations. Let us know how it turns out.
Duane Frymire, post: 385814, member: 110 wrote: Well, if you believe the assessor at the time was unethical in not splitting all the lots and taxing them individually (contrary to one poster above, taxing as individual lots would substantially raise the tax burden in most jurisdictions), then I guess some attorney should go after that public employee (although they are usually immune from liability) and/or the agency that employed them with some sort of lawsuit? The client could claim damages for costs of going through current regulatory proceedings minus taxes they were not required to pay on individual lots v. consolidated over the years. I doubt that's going to come out well for the client even if they win.
As far as the current situation goes; is it ethical to allow one person in the community to avoid current regulations while requiring all others to comply with them?
Grandfathering is only allowed due to equitable valuation concerns. In fact, because the client still retains the lots, if the remaining lots are not in compliance with current regulations, most jurisdictions would allow/require them to be merged into complying lots even if they had been recognized as subdivided at one time. I'm just the messenger; that policy, while disliked by many, has been tested thoroughly in the courts and found constitutional. Some have tried to skirt that by conveying a lot to wife, family, friend, but the courts saw through that and said if you still have "control or influence" the lots will be merged.
Thanks for the reply.
I was not stating that the assessor was unethical but most likely incompetent at the time along with the records clerk.
There are 3 choices: 1. Incompetent 2. Unethical 3.combination of both.
Most likely 3 : )
By your reply, the landowner is put into a squeeze and must seek legal remedy with associated costs. But they realize it is a "You can't fight city hall" scenario and must face rolling over on the issue.
We are probably unaware of some of the facts and it casts a fog. Such as fair market assessment at that time and place, lot size, zoning, or other land use ordinances etc. but the intent of the landowner is very clear.
But that adds to the dialogue here in a constructive and entertaining way.
I guess I'm done
Duane Frymire, post: 385818, member: 110 wrote: In my opinion, legally you're wrong on all counts, but I'm not an attorney. But if the improvements are substantial the municipality might waive some requirements out of the goodness of their hearts. Problem with that is someone else might sue them for unfair application of current regulations. Let us know how it turns out.
I keep coming back to your responses Duane because I want to fully understand your position. I'm not trying to be combative. I have asked a couple of questions that you haven't really answered.
Do you believe that even though the monuments for all six lots were set at the same time by a licensed surveyor during a period when there was no regulatory authority over the division/use of land that the lots don't actually exist until the Assesment office recognizes them? If you do believe this doesn't that create the possibility that inaccurate tax maps could invalidate a licensed surveyors work?
Second, If the lots don't exist until the Assessment office recognizes them does that mean that senior title in this subdivision is determined by the order in which the lots are conveyed even though all of the monuments were set at the same time?
MD Surveyor, post: 385830, member: 10081 wrote: I keep coming back to your responses Duane because I want to fully understand your position. I'm not trying to be combative. I have asked a couple of questions that you haven't really answered.
Do you believe that even though the monuments for all six lots were set at the same time by a licensed surveyor during a period when there was no regulatory authority over the division/use of land that the lots don't actually exist until the Assesment office recognizes them? If you do believe this doesn't that create the possibility that inaccurate tax maps could invalidate a licensed surveyors work?
Second, If the lots don't exist until the Assessment office recognizes them does that mean that senior title in this subdivision is determined by the order in which the lots are conveyed even though all of the monuments were set at the same time?
Yes, the lots don't exist until they are either recognized as existing by a municipal body or they are transferred (although a transfer now without proper approvals could be invalidated). The surveyors work is still good (if it was to begin with). But, staking lines and making maps alone does not change boundaries let alone title. Inaccurate tax maps can cause all kinds of problems though and lead to a loss of title or a move of boundaries, but lots of other things have to happen as well. On the same idea though, the landowner could change the subdivision map they are holding any number of times if it's not recognized by the jurisdiction and that could lead to fraud and mistake as well when they file the same titled map but lines have been changed or lot numbers changed on each sale.
Yes, I would definitely argue that senior rights would be the rule of last resort to use in this situation rather than proration. But if the monuments are in and called for, then rules of last resort become irrelevant after this length of time unless something was so grossly off as to make the line in a different location via estoppel.
I didn't take your posts as combative, just trying to help a client. I've gotten a lot of help here and try to chime in if I think I can help others. As always, I could be wrong.
There seem to be two distinct camps in this world.
One believes the land belongs to everyone and, therefore, everyone (and I do mean EVERYONE) has total control over everything to do with any specific parcel, no matter who holds the deed to such land.
The other believes that private ownership permits the private owner to make decisions for a specific parcel so long as that does not negatively impact adjoiners.
Those who argue there is another camp are not land owners. They simply have opinions based on things they have not experienced personally.
Edit: It makes more sense when you use the word adjoiners instead of adjourners. Neither word gets past spell check, however.
