Here's a technical/legal question for all you California surveyors.
The situation:
A Final Map submitted by a developer for a residential subdivision is approved by a City. At the same time the City approves an Agreement, between developer and City, to construct public streets and utilities within the subdivision. On the Final Map fee dedications are made by the developer for the public streets within the subdivision. Also on the Final Map the City Clerk accepts the fee dedications "subject to satisfactory completion of improvements". The Final Map is recorded at the County immediately after signatures are in place and construction commences on the public streets and utilities. After a year of construction, the City accepts the public improvements per the Agreement.
The question:
At what exact point in time did the City receive fee title to the public streets? Was it at the time of Final Map recording? Upon City acceptance of public improvements?
Thanks in advance for responding. If you can include a citation it would help!
In California a public agency has to accept a grant of fee or easement. They did accept the fee dedication when the Final Map was files (Final Map is Californian for Subdivision with 5 lots or more). Then a year later they accepted the improvements.
I think it was at the time of Map filing but the lawyers may disagree with me.
Thanks Dave! We're on the same page, but you're right about the disagreement in certain legal quarters. Seems odd there would be a difference of opinion on this?ÿ matter. There are implications, depending how you look at it. Any other insights out there?
In California a public agency has to accept a grant of fee or easement.
That is true everywhere. The public can't be forced to accept something that may be a liability.?ÿ
As for the original question, the answer may be never. A dedication is usually an easement. The fee remains with the adjacent owner.?ÿ In circumstances when the fee does expressly pass, in a conditional agreement, it passes when the conditions are satisfied.?ÿ
Interesting! I agree the words "subject to satisfactory completion..." represent a condition. On the other hand the agreement between City and developer, with security, is in place to assure the City of the developer satisfying that condition.
It seems if the intent of the City is to NOT accept fee title until after improvements are completed the City Clerk would simply deny acceptance of the dedications on the Final Map and then circle back later, after improvements are done and security released, to accept the dedications.
The Map Act allows either statement by the City Clerk (to accept or deny dedications) and I'm trying to understand the difference between the two.
I recall being told by a city's senior civil engineer that the streets in a project that was under development at the time belonged to the developer until the improvements were accepted.?ÿ But that was a long time ago, and I don't remember if the dedication was in fee or otherwise.
Thanks Jim! Yeah the devil's in the details but I've heard that position from City folks. Just looking for a basis for that opinion. Any relation to Mike and Annie (old surveyor pals from Fairbanks)?
I suspect the period between subdivision recordation and agency acceptance is a gray area upon which lawyers feed. A couple examples for my experience years ago as an engineer involved in SoCal tract map approval....
There was a well known issue, to those of us in the agency, regarding streets that were recorded in the early 1930s in a coastal California community. Tract maps were recorded with streets dedicated, then the developer went bankrupt. Over the years building occurred on the lots created, and subsequent developers improved some of the streets. But not all. What remained we called "paper streets", which existed in record only. My agency insisted that since it never officially accepted the dedication offer, it wasn't responsible for them. But the adjacent property owners couldn't build on or use them, nor did they pay taxes on the dedicated property. Since the lots were created at the same time the streets were, it wasn't like an unused easement that could revert back to the original property owners. In more recent years, I believe some property owners did succeed in getting the agency to abandon the unused right of way, but I recall it costing them some money.
A second example concerns more recent development, which was conditioned much as described in the first post. Once the developer improved the streets to the agency's satisfaction, they would be accepted by the agency for maintenance. But it was drilled into us at the time that until the improvements received their final acceptance, all liability for them remained with the developer.... so then who owns them between recordation and acceptance? Based on this, one would think the developer. But during this in-between period the agency would require utilities to obtain excavation and encroachment permits for work as part of the development, thus acting as if the street belonged to the agency. I should add this was a large agency with competent counsel who generally knew what they were doing.
As I said, lawyer food....
?ÿ
.... the agreement between City and developer, with security, is in place to assure the City of the developer satisfying that condition.
There are a million and six things that could go wrong. If there was no chance that the conditions would not be met, there would be no need for a conditional agreement.
Thanks Otherhand! Yes, it's that in-between period that runs up the legal fees. The thing is, offers of dedication by an owner on a Final Map are irrevocable. So even if the City Clerk were to reject an offer on the Final Map, he/she could come back at any time (within 25 years or whatever, but at least until after improvements were done) and accept the offer. Guess I'm starting to think cities should just reject offers of fee dedication on a map in cases where the owner/developer has an obligation to build the streets. Just avoid the "subject to" language altogether.
Amen Mark and point taken. Can you think of a reason for a City not to reject offers of fee dedication in these instances?
To not reject? Ummm.
To reject? A)The parcel may be a biohazard area. B) The improvements may not meet code.
OK, sorry about the double negative. You obviously have a strong opinion about all this and I suspect you are correct. But if you are I'm not seeing the difference between accepting an offer subject to satisfactory completion and simply rejecting the offer until sometime later, after recording of the map and completion of improvements. These are two distinct choices given in the Map Act but perhaps in this case they amount to the same thing. Except that the latter is less confusing as to the holder of fee title in the in-between time.
Come to think of it, from the other side of the fence an owner/developer would probably argue against dedication rejection on the Map, considering it to be a threat to their investment.
Perhaps that is why the Map Act leaves this issue to the lawyers...
Anyway, thanks everybody for chiming in. Most helpful!
if you want to research the question, go to the Law Library and lookup the relevant SMA section in the annotated code book. It may have a case on point.
Any relation to Mike and Annie (old surveyor pals from Fairbanks)?
None that I'm aware of.?ÿ It's not a very common name, but I'm often surprised to find others to whom I have no known relation.?ÿ There's even a James H. Frame land surveyor licensee in Idaho (or was -- I haven't checked in some years).?ÿ I tried to contact him once just to say hi, but got no response.
