I have a sort of legal question that hopefully some of you could have some input on to help lead me in the right direction. I have a client with two properties, one being about 30 acres and a neighboring property being about 160 acres. He does not like the cost of the county BLA application. What he is proposing to do is to have me make a plat of a land transfer of about 16 acres from the 160 acre parcel to the 30 acre parcel. Not proceeding with the county process of having the BLA approved. (I should note that what he is proposing to do with the land does not violate any county zoning ordinances now or in the foreseeable future regarding the BLA.) Then keeping the plat and referencing it in his will as to what he wants done with the property. The new 36 acre tract going to an heir and the remainder going to a different heir.
My question is, at the time the will would be executed, would the BLA then need to take place by the county processes? Or, by having a plat or any sketch for that matter, be enough to have that granted? Would that be enough to get around a BLA application or is he just kicking the can down the road?
Andrew Hornbeck, post: 331992, member: 10361 wrote: I have a sort of legal question that hopefully some of you could have some input on to help lead me in the right direction. I have a client with two properties, one being about 30 acres and a neighboring property being about 160 acres. He does not like the cost of the county BLA application. What he is proposing to do is to have me make a plat of a land transfer of about 16 acres from the 160 acre parcel to the 30 acre parcel. Not proceeding with the county process of having the BLA approved. (I should note that what he is proposing to do with the land does not violate any county zoning ordinances now or in the foreseeable future regarding the BLA.) Then keeping the plat and referencing it in his will as to what he wants done with the property. The new 36 acre tract going to an heir and the remainder going to a different heir.
My question is, at the time the will would be executed, would the BLA then need to take place by the county processes? Or, by having a plat or any sketch for that matter, be enough to have that granted? Would that be enough to get around a BLA application or is he just kicking the can down the road?
Ask the local BLA authority.
Andrew Hornbeck, post: 331992, member: 10361 wrote: new 36 acre tract
46 ?
Right, 46 acres.
Andrew Hornbeck, post: 331992, member: 10361 wrote:
My question is, at the time the will would be executed, would the BLA then need to take place by the county processes? Or, by having a plat or any sketch for that matter, be enough to have that granted? Would that be enough to get around a BLA application or is he just kicking the can down the road?
is this a joke? are surveyors experts at predicting the future?
Check some case law... and alsoask your local agency.
I suppose if your client is on their deathbed you could assume that your controlling laws and relevant precedent setting court decisions will remain constant.
Check with the county to be sure what the owner is proposing is not in conflict with their code. Here it is a violation of state law for a licenced surveyor to prepare any documents to assist a land owner to violate any local regulations.
My local experience is: actions at law, such as the process wherein the estate of a decedent is administered (or say a court order settling a law suit) are exempt from the regulations regarding the review and approval process for the division of land.
So if there was a will that stated than an heir was to receive the 30 acres parcel and 16 acres out of the 160 acre parcel then a surveyor would prepare a plat dividing the larger parcel and the planning authority would sign off stating that the parcel was exempt from the subdivision process and could be recorded.
That's it...that satisfies the requirements of the will. There would be no mechanism to bypass the regulations for development (such as regulations and fees for combining the 30 and 16 acre parcel) nor would this process make the 16 acre parcel a buildable lot if there were further land use regulations that restricted the use of it (say is was in an area zoned for a 20 acre minimum building parcels)
The bold 'local' should also be in caps / italics. Many States exempt division by Court order from most regulation. You have some research to do...
Yeah, I think that in California such an action would be deemed an attempt to circumvent the Subdivision Map Act here and likely not be allowed. Or, if it was allowed, there would be a lot of additional "hoops" to jump through to get the title cleared and able to be improved.
skwyd I don't know.
I see no problem with mapping out stuff, making survey-able descriptions, and preparing a drawing. If you trigger one of the requirements for a Record of Survey in the process, that is another matter.
Many years ago I was on a field crew marking out the lines resulting from the probating of the will on a family ranch. That division would not have been permitted by current zoning, period. A Record of Survey was the final result. I am sure there was more to it, but the planners acquiesced to it, the land was later sold to others and developed.
I assume every state has their own lays that control partitions by will or other court judgments. SMA is not the top of the food chain.
Then keeping the plat and referencing it in his will
I thought you were in a recording state. If so, don't you HAVE to record that plat, even if the client doesn't want you to?
Andy
Be sure that every corner is monumented when the plat is done. It is best that the required descriptions be detailed within the will, or amended to it.
Make your survey a part of the Will. It becomes recorded when the will is probated.
A subdivision is a judicial action, the planning or zoning board acting in judicial capacity, following judicial procedures.
Probating a will is a judicial procedure.
It is best to make sure that the parcels are appropriate for the planned future uses, because if for some reason the use has to go before the bypassed board they often seek revenge.
Paul in PA
