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Judicial partitions vs subdivision application
Client has undivided 1/3 interest in an 18 ac. property. He wants to separate his interest by a partition. Not sure of the reason. Problem is the zoning in this area is 10 acres minimum, so a regular subdivision application would be denied.
Vaguely recall partitions by judgement in divorce or inheritance cases in a past survey life.
Q : Ever come across a judicial partition overruling land division codes ?
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15 Replies
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The key words in you the judgment are ‘undivided interest’. I’m sure it varies from state to state but in the states I licensed in things like divorce or inheritance do not create new properties. Courts can adjust exiting lines but not create new tracts.
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Yes happens all the time. It’s one of the exceptions to the subdivision regulations:
(ii) A division which may be created by any court of this state pursuant to the law of eminent domain, by operation of law or by order of any court in this state,
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First off the parcel would have to be surveyed and all improvements evaluated. I would assume it does not have 3 equally valuable dwellings. It is possible that with a single valuable dwelling that 1/3 value could be found in a 9 or ten acre parcel, leaving the other 2/3 to own the remainder. Not meeting the 10 acre minimum size is diminimus in that case, and the other 1/3 interest parties may not want to further subdivide. The judge has the option of forcing a sale and dividing the proceeds equally. Do you have a Judge Solomon in your county?
The reason is probably why almost everybody ends up in court, they cannot get along.
Also the party wanting out could be forced to sell at court established value.
In any case a detailed survey and valuation is required, and it may be at the party wanting out’s cost.
Paul in PA
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The party wanting out usually bears the initial expense of the judgement side and will turn to civil court to regain their costs from the other parties and usually getting it all.
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In NC you can create any shape/size parcel you like as part of an estate division or court order. The catch is that the county or municipality may deny building permits if the lot does not conform to current ordinance.
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In Alaska at least, it can be the opposite. Statute prohibits a platted lot line from being changed without going through the subdivision process, but a court can create a new parcel to account for adverse possession, ect….Although this is sometimes misunderstood by surveyors and local governments with no apparent consequences.
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You may end up in court and not get what you want.
An attorney I deal with told me of a somewhat similar case that went to the Supreme Court twice and the plaintiff lost each time (divorce).
Be very careful of using the courts for this, I would expect they will not like being used to skirt subdivision laws to divide lands.
I just finished a family split and they looked into using probate to do the splits, but it was more expensive than doing a vacation and a BLA which the county allowed after the vacation.
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Our county code has no provision for court order to supercede the subd. code. But I do see small road parcels created for things line curve returns, road widening, where the parcels are smaller than zoning regs allow. Those being for public use may be the exception.
State statutes- gotta look closer there.
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The county code would probably not have authority over the court. If the state allows the court to do this, the county would not be able to control it.
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You won’t find anything like that in your county code, the State governs judicial powers.
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A Planning or Zoning Board is a Judicial Body, dealing only with Land and Land Use. All are subject to State laws, the Board is Judge and Jury combined. Appeal is to a higher court.
Paul in PA
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Look up your state statutes, probably in google type in your state, statute and subdivision regulation exceptions.
Going to court for this could blow-up in your clients face.
They may lose or even force a sale of the entire tract, then get a third of the sale at a sale price and have to pay court costs.
I would advise them to speak to an attorney, but stay out of pushing them to court.
It’s important that a surveyor understands that this happens, have knowledge of the statutes and rules, but you shouldn’t involve yourself in the process to the point you are playing lawyer.
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(ii) A division which may be created by any court of this state pursuant to the law of eminent domain, by operation of law or by order of any court in this state;
(iii) A division which is created by a lien, mortgage, deed of trust or any other security instrument, easements and rights-of-way;
(iv) Lands located within incorporated cities or towns;
(v) A division which is created by the sale or other disposition of land to the state of Wyoming or any political subdivision thereof;
(vi) A division which affects railroad rights-of-way;
(vii) A division which is a sale or other disposition of land for agricultural purposes or affects the alignment of property lines for agricultural purposes;
(viii) A division which is created by boundary line adjustments where the parcel subject of the sale or other disposition is adjacent to and merged with other land owned by the grantee;
(ix) A division which creates cemetery lots;
(x) A division which is created by the acquisition of an interest in land in the name of the husband and wife or other persons in joint tenancy or as tenants in common, and the interest shall be deemed for purposes of this subsection as only one (1) interest;
(xi) A division of land creating a parcel five (5) acres or less for the purpose of establishing unmanned communication facilities, compressor stations, metering stations, fiber optic booster stations or similar unmanned facilities;
(xii) A division which creates a cluster development pursuant to and in accordance with article 4 of this chapter;
(xiii) The sale or disposition of separate parcels of land that were separate when lawfully created or conveyed and which have not been combined by a recorded instrument of conveyance signed by all of the owners.
Look at #10, your state may have something similar, I would think it’s a 30 second research project once you are on Google.
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Judicial partitions are binding, but most courts will review local zoning ordinances and realize that a parcel split could result in two (or more) substandard unbuildable parcels. In that case they’ll force the sale of the entire parcel with distribution of the proceeds divided equitably amongst the parties. If not, the court is an ass.
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There should be more players in this scenario. First an attorney should be consulted to answer the question as if and how this can be done according to law. An appraiser will need to decide total value and how a division will affect it. And finally, the surveyor needs to calculate the shape and quantify the area to be segregated. Only then should the client address the court with her scheme. I would also add that it might be likely that if the court allows for the segregation it could reserve an easement for the other two participants over the segregated parcel rendering this whole operation moot.
Many times a “client” brings a case to the surveyor that needs to go elsewhere first because the surveyor gives free advice and is more eager to give them what they want even though we have no basis to do so. Don’t be afraid to say no.
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