I'm wondering if any of you have encountered a similar situation and might be able to comment.?ÿ
The situation is this.?ÿ We start with an irregularly shaped unplatted/non-subdivided (metes & bounds) parcel of land in a suburban setting.?ÿ When we were engaged by our Client who purchased the property with the intent of developing it into a townhome community there were several existing residential dwelling units on the east third that were setup as rentals. ?ÿFor our Client to fund his townhome development he decided to have a Condo Plat prepared for the rental units so he could collateralize them (Condo was done prior to our engagement).?ÿ For some reason the individual who prepared the Condo Plat broke out the units appropriately but also used it to create a parcel separate from the overall 6 acre parcel via metes and bounds description on the Condo Plat that accounted for approximately 2 acres the condo units sit on.?ÿ My opinion is this was the equivalent of an illegal subdivision because in Colorado there is a law that states in order to transact a parcel under a certain size it has to be subdivided first and that a Condo Plat only has the authority to divide air space and define common and limited common areas.?ÿ This would be no different than if they had used the parcel legal description in a deed and sold it off that way.?ÿ While ??illegal? in the eyes of State Statute it happens all the time and usually isn??t a problem until someone tries to do something with the property like pull a building permit or submit a development plan.?ÿ That is when the controlling jurisdiction will force the owner/developer to correct the problem and create an official Subdivision Plat per their standards.
So, now my team steps in, does the development permitting plans and required Subdivision Plat to create the townhome lots and fix the illegal subdivision created by the Condo Plat.?ÿ Unknown to us during the span of our design and review process with the City our Client sold all the individual condo??s.?ÿ We get our approvals of the design plans and the Subdivision Plat and the Plat gets signed by everyone we know about and recorded with the County and we all have a shot to celebrate because this project took more than a year to get approval.?ÿ
Fast forward to a couple weeks ago and our Client forwards us a deficiency letter from the Assessor??s Office who is apparently months behind in entering new Subdivision Plats into their system.?ÿ They have 2 problems: 1. The legal of the Condo Plat created parcel doesn??t match the Lot the Subdivision Plat created for that area and 2. Not all interested parties (Condo Owners & Condo Association) signed off on the Subdivision Plat.?ÿ ?ÿ?ÿ
#1 This is true.?ÿ We had to shift the parcel lines from what was defined on the Condo Plat to accommodate the townhome development.?ÿ These shifts were less than a foot in all instances but necessary to make the whole thing work.?ÿ I don??t see this as a problem because the Subdivision Plat supersedes the Condo Plat especially given that the Condo Plat didn??t have the authority to divide the land in the first place so in a practical sense the Subdivision Plat is resubdividing the condo parcel and creating an official lot for it.
#2 This is true as well.?ÿ Because we didn??t know the owner had sold the condo units, we didn??t know to include those owners and the association in the ownership signature blocks.?ÿ My proposed fix for this is to do an affidavit of correction to the plat to capture those additional owners and add them to the approval.?ÿ Simple enough to do as our Client is the manager of the Condo Association and can easily get the necessary signatures.?ÿ
I propose the affidavit of correction idea to our Client and the City who approved the Subdivision to begin with and they are all on board.?ÿ I then propose it to the gal in the Assessor??s Office and she does not like it.?ÿ She??s telling me common areas and condo units defined by a Condo Plat cannot be farther subdivided without first terminating the Condo Association then recording the plat then redoing the Condo Plat and Condo Association.?ÿ Condo Plats and Common Interest Ownership are something I don??t deal with much and try to avoid like the plague so I don??t know about the validity of this stance but it seems like to me if I can get all the condo owners and the Condo Association signatures of approval, which I??m confident I can, then every possible interested party in the land affected by the Subdivision Plat has agreed to what it??s doing with the land division and we??re good.?ÿ In the Assessor Lady??s opinion, the only way to fix the problem from her perspective is to do an affidavit of correction to the Subdivision Plat that excludes the parcel defined by the Condo Plat.?ÿ That??s fine and dandy for her but doesn??t fix the illegal subdivision situation or address how we needed to slightly shift the parcel lines to maintain necessary setback distances per the City's development code and zoning regulations.?ÿ Her biggest problem is the legal descriptions for the condo units and how those would appear now that the Subdivision Plat has been recorded after the Condo Plat as typically that??s done in the reverse order, Subdivision then Condo.?ÿ I still don??t see a problem here as it would just be Unit A, XXXX Condominium being a part of Lot X, XXXX Subdivision.?ÿ She just doesn??t want to see the ??being a part of Lot X, XXXX Subdivision? at the end.?ÿ
Now I find out my Client has the townhome project under contract with someone who wants to buy it and our plans to build it out and this mess is hanging up his deal.?ÿ It??s a more than a little frustrating because he did things out of sequence in the first place then sold the units without telling us but that??s water under the bridge at this point.?ÿ He doesn??t care how it??s fixed, just wants it fixed as fast and cheap as possible.?ÿ I want to get it fixed as well but I want to do it the correct way, so it doesn??t cause any more problems in the future.?ÿ What say you??ÿ ?ÿ?ÿ?ÿ
Wow.
Is this Park County? That would make sense.
The things that struck me were that your client is acting out their own destiny while including you in the liability chain of their arbitrary actions.
Doing it it right is the best way to protect your interests long term( and im not trying to be snarky) and maybe keep your client at arms length like a public defender does with a guilty murder suspect. Do it by the book with the assessors because they would be the over arching partivipants you'll be working with long after this client flies the coop.
Money is not worth doing anything wrong esp of it garners the E&O funding of Dewey, Cheatem, and Howe, LLP of ruin.
Good luck isnt required. Client come to Jesus meeting may be forthcoming.
As well as many other meetings via zoom.
Keep us posted.
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Tell you what I'll come out there and work in your office and help you figure it out. Ha Ha I wish...
I would cut out the smaller condo lots. Cancel the whole association and start from scratch, an entirely new condo/subdivision plat; isolate that nightmare. Then talk with the developer and get him to put the brakes on and get the mess sorted out. If he doesn't listen look for ways to put a lien on the operation to stop the transactions so you don't caught up in his mess. Thats a healthy dose of WTF, but hey it's Friday.
Exactly why I don't like land development, lots of little parts. Good luck! I know you will get it sorted out in a jiffy.
I propose the affidavit of correction idea to our Client and the City who approved the Subdivision to begin with and they are all on board.?ÿ I then propose it to the gal in the Assessor??s Office and she does not like it.
Who is included in the "City who approved the Subdivision", Mayor? Head of Planning? They would have the power to override "gal in the Assessor??s Office". If not it looks like back to square one.?ÿ
Wish I was more familiar with condo plats but it looks to me like your client is yanking everyone around.
@flga-2
Community Development Director, City Engineer and City Attorney.?ÿ It's a bit of a conundrum for sure.?ÿ The way it works here is the local jurisdictions control the Subdivision Platting review and approval and the County just records them if they land in an incorporated municipality.?ÿ The County doesn't review them at all unless they land in an unincorporated area.?ÿ The opposite is true for Condo Plats.?ÿ The municipalities don't look at them at all and honestly neither does the County.?ÿ There really is no review process for most Condo Plats.?ÿ They just get drafted and recorded.?ÿ Unfortunately there is no "back to square one".?ÿ The Sub Plat has been recorded into the public record already and the Condo's have been sold already.?ÿ No putting the Genie back in that bottle or bottles as it were.?ÿ There is no way that I'm aware of to completely unwind a recorded Subdivision Plat and a Replat that doesn't include the condo parcel wouldn't undo the original platting of the condo parcel and an affidavit of correction that excluded the condo parcel would create setback problems and be kicking the can down the street regarding the illegal subdivision.?ÿ Time for a beer!
I don't know a thing about your problem, Cameron.?ÿ However, I am concerned that a county elected official that is not supposedly part of the approval process has decided they have the power to nix what has been done. You may request the county attorney's opinion regarding the county assessor's assertion of veto power??ÿ
The only thing I can offer as professional input is to suggest that you demand payment for all work you've done to date and then require a retainer for any future work, whatever that may be.
In the meantime, I'll stick with my area of expertise and how to deal with thoughty notions such as theoretical exclusions in mineral lands patents.
Thanks Gene, I appreciate the support.?ÿ I've already done exactly as you've suggested and asked the Assessor staff member making the comment to loop in the County Attorney to get their input.?ÿ For the record, I've been paid in full for the work to produce the plat that was recorded and based on Colorado Law I'm well outside of my window to file a Mechanic's Lien against the property.?ÿ Any new work that has to be done to correct the issue will be billed accordingly because I don't feel this situation was caused by any actions of my own.?ÿ In fact I was directed to treat the Condo area the way I did by the City review staff.?ÿ It's just frustrating when you wrap up a project that was complicated as hell and feel good about your work then the skeletons start creeping out to bite you 10 months later.?ÿ ?ÿ
[tongue-in-cheek]I wasn't meaning to imply that there is an internecine (I don't think I've ever used that term in a survey post) conflict between the municipal and county officials. However, I've never pondered the concept of whether a county assessor has the power of "advise and consent" regarding what the "proper" division of land parcels is. I'm also not saying that they should be docile and blindly accept the opinions of others, but their real job is to appraise the value of land and assess the tax to be paid.[/tongue-in-cheek]
This is not entirely uncommon in Colorado because the subdivision laws are granted to the counties.
I don't think the SAOC would apply. But I do think a recorded CORRECTION PLAT that is identical, signed by all PLUS the omitted signatures will satisfy county AND title company. We've done a few in my county and it seems to work.
For your role, I recommend board rule 6.5.3.2 which reads in part " surveyors shall follow LOCAL STANDARDS OF PRACTICE....." and that means your county planning Commission which in turn to Assessor. Good luck!
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This is not entirely uncommon in Colorado because the subdivision laws are granted to the counties.
I don't think the SAOC would apply. But I do think a recorded CORRECTION PLAT that is identical, signed by all PLUS the omitted signatures will satisfy county AND title company. We've done a few in my county and it seems to work.
For your role, I recommend board rule 6.5.3.2 which reads in part " surveyors shall follow LOCAL STANDARDS OF PRACTICE....." and that means your county planning Commission which in turn to Assessor. Good luck!
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A county in Colorado only controls the subdivision of lands within the unincorporated areas of the county. I live in Lakewood Colorado and the Lakewood Zoning Ordinance governs land use and development throughout the city, not Jefferson County.
DORA changed the numbering of Board Rules effective October 1, 2019.?ÿ Old section 6.5.3.2 is now section 1.6.E.3.b Surveys Shall Reference Corners. I believe Warren is paraphrasing the third sentence of the section which states, "Residential subdivision layouts shall conform to local subdivision ordinances (standards and regulations)" where "local" refers to either an incorporated municipality or county.
Caveat that 1) all state laws are different, and 2) all my condominium experience is in Maryland and the District of Columbia, but...
In these parts the condo plat is only a portion of the process (legally a third, practically much less); a lot of the legalities about changes/amendments to the condominium regime are site rather than state specific and are contain in the Condominium Declaration and Condominium Bylaws. Each tend to run to 150+ pages of legalese.?ÿ
If the condo plat wasn't recorded how could there be sales for the lots? Were the buyers buying a portion of the larger parcel?
The review process I'm familiar with requires a certificate of title at the time of submittal and it can't be very old.?ÿ
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Now I find out my Client has the townhome project under contract with someone who wants to buy it and our plans to build it out and this mess is hanging up his deal.?ÿ It??s a more than a little frustrating because he did things out of sequence in the first place then sold the units without telling us but that??s water under the bridge at this point.?ÿ He doesn??t care how it??s fixed, just wants it fixed as fast and cheap as possible.?ÿ I want to get it fixed as well but I want to do it the correct way, so it doesn??t cause any more problems in the future.?ÿ What say you??ÿ ?ÿ?ÿ?ÿ
It sounds like you have done everything you were contracted to do. One option is to tell your client to figure out how they are going to fix this and then come back to you with more money when they have it figured out. Usually I wouldn't reccomend this course of action, because we should make ourselves as valuable as possible to our clients, but this sounds like a bad client, not one that I would hope to do work for again.
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The "lady in the accessor's" office doesn't have the power to nix what was done, but she, like every other employee, has the power to point out to all involved that she thinks something isn't right. I have no idea if she is right, but keeping the taxes straight is important to all involved, so either she is right, and should be listened to, or someone needs to explain to her why she is wrong.?ÿ
The Condo Plat was recorded and it did its job of defining air space purchasers would own but then it went on to define a parcel area that had not previously existed (the rub).?ÿ Typically the description of the units goes to the inside face of drywall or stud of the outer walls of the unit or some other well defined structural component depending on the Association Declaration wording and the Association owns everything else in fee then each of the condo owners has a common interest ownership in the Association.?ÿ
So, if the Assessor lady is correct in that the Condo owners & Association don't have the right or privilege to subdivide the Condo parcel the project was flawed from jump and I missed it and the City missed it and I don't know how to correct that.?ÿ Take my role and the Sub Plat out of the equation for arguments sake.?ÿ Say the Condo Association wanted to redo the parking lot or were having drainage issues and needed to install new storm water infrastructure or anything they would need to go into the City with a permit request for.?ÿ The City would likely have said hold on a quick second, we need to fix this illegal subdivision situation first then we'll talk permits.?ÿ How would the Association have gone about correcting that if not by Subdividing the property through the City's process??ÿ If the City's process would allow for them to Subdivide only their 2 acre portion of the original unplatted 6 acre parcel, the individual condo owners and the association would sign the plat and it would be done.?ÿ If the City's process would not allow for a subdivision of only their 2 acre portion the resulting Sub Plat would look nearly identical to what I produced save the creation of the new Townhome Lots.
I believe the condo owners and the association that represents their interests still have property rights and the authority to do with their land what they wish within the bounds of the City's land use and zoning code.?ÿ In my mind not knowing that these owners existed and not including them in the approval of the Sub Plat is the base problem and using whatever vehicle, either corrective plat or affidavit of correction, to bring them into that approval solves it.?ÿ ?ÿ ?ÿ ?ÿ?ÿ
Great story! ?ÿVery will written, I am amazed that I was able to follow it all.... ?ÿ
I believe that you are experiencing a title problem exacerbated by the changes in ownership.
You??re probably on the right track with the idea of starting by getting all of the owners on record.
This solution might be a nightmare in dealing with the individual lenders but maybe what has to happen:
Record deeds to have all illegitimate parcels conveyed to the title company. ?ÿFile the correction plat with the one owner listed. ?ÿReconvey the parcels with the new legal descriptions.
It is possible that you won??t need another plat if your original goal in mapping the legal lots was successful. ?ÿI believe that the assessor is simply wanting the correct LD on all of the deeds, am I right?
Not sure how the conveyance ?ÿaffects tax assessments in CO but since you have the assessors ear, maybe they could offer an exemption from reassessment for this special case.?ÿ
I believe that the assessor is simply wanting the correct LD on all of the deeds, am I right?
This is my understanding as well.
In Cameron's posts, the Assessor's office staff member not only flagged supposed problems, but suggested a specific curative action. In addition, they dismissed Cameron's proposed solution to the problem, which is why I used the term "nix" to describe the Assessor's office opposition.
I suggested to Cameron that he contact the county attorney regarding the matter. Knowing Cameron, I was not surprised that he had already done that. I do not know the municipality and county where this development is located, but it is not unheard of to observe internecine conflicts between municipal and county staff. In this case, the local government entity that has jurisdiction over the approval of subdivisions is the municipality and Cameron has followed their suggestions and guidance.
The best way to move forward may be to have the city attorney, county attorney and the developer have a chat to see if there is a mutually agreeable way to cure any possible defect(s). Then, the developer can decide whether to implement the suggested cure or stick with what he believes is a strict interpretation of the applicable subdivision regulations. He may decide that it is not worth a fight and that maintaining a good working relationship with both the municipality and county is more important.
A final note and not meant to excoriate either Cameron or aliquot. In future posts, can we refrain from using terms like, "gal in the Assessor??s Office," "Assessor Lady," and the "lady in the assessor's" office? I know our profession is overwhelmingly male, but there are more professional ways of addressing a person in a county department.
