I have been asked to survey off 5.00 acres from an 11 acre tract for a Deed of Trust so my potential client can get a loan. This client owns the whole 11 acres but only needs to put up 5 for the loan. He says no "subdivision" of the land is required. So does this mean no corners set? He already has a home on the land which will be part of the 5 acres. I can't find anything in the State regs about this.
I'd look at local subdivision regulations. We have special provisions for this in my corner of the world and the "subdivision" only becomes reality if the owner defaults. Otherwise the owner still only has a single parcel of land. And, yes, we set corners.
Your experiences may vary in your corner of the world.
"Your mileage may vary"
Start asking around to others surveyors who have been doing this longer than you.
It is something we do here regularly. It might not be allowed in a few counties in the State, but the vast majority have no problem with simple splits, whether for mortgage purposes or not.
We set pins on every survey for a new description.
> I have been asked to survey off 5.00 acres from an 11 acre tract for a Deed of Trust so my potential client can get a loan. This client owns the whole 11 acres but only needs to put up 5 for the loan. He says no "subdivision" of the land is required. So does this mean no corners set? He already has a home on the land which will be part of the 5 acres. I can't find anything in the State regs about this.
Dave Ingram said:
>I'd look at local subdivision regulations. We have special provisions for this in my corner of the world and the "subdivision" only becomes reality if the owner defaults. Otherwise the owner still only has a single parcel of land. And, yes, we set corners.
>Your experiences may vary in your corner of the world.
Me:
In my area of Virginia (New River Valley) in every jurisdiction it would be treated as a minor subdivision of some sort and would need to go through full review and approvals. Thus making it a regular survey creating two parcels and subject to the monumentation standards of the Commonwealth. Most jurisdictions around here that 6 acres± might need to get perc'ed or get a letter stating that sewer is available if needed.
They don't do these things too slipshod around here anymore. I guess too many went the wrong way in the 1990's and they strapped things like this down.
Carl
A worst case scenario is the owner defaults on the loan and the mortgage company takes possession of the portion covered by the security deed. Both properties will need to meet the S/D Regulations at that time. If either party is damaged by not having a conforming lot, they may look to you for relief. I would suggest that you divide the property and set corners, so that it could be divided into two conforming lots in such an event. I would also add a note that the division is based on current S/D Regulation.
In my neck of the woods, if the owner divides by a mortgage and defaults on the loan, there is no support from the counties as they will not recognize the division and let it go to court for a judge to decide. I’ve been told that the judges could rule to allow a foreclosure on the entire parcel so the owner loses all and the lender gets more than what they loaned on.
The counties don’t have any control as to what a property owner has a right to do financially concerning the property, only the use and divisions of the land.
It’s a form of predatory lending as far as I’m concerned. I advise my clients of the above and if they insist on this type of survey, the map is clearly noted to be a collateral loan only and has not been approved by the jurisdiction of which it lies for a division of land. No monuments set other than the exterior of the entire parcel.
That’s my $0.02 and I've done a few for commercial concerns mainly.
SD
In my state it would be classified as a subdivision of property which falls under the category of a property boundary survey. The standards of practice apply requiring setting monuments at all corners. My plat would contain all of the local planning office requirements as though it would be presented for approval.
I can deliver the plat to the client and he/she can decide whether or not to move forward with any local planning approvals
Our duty is to the public welfare not to the clients welfare.
Set Corners For Your Benefit And Use
Should there be a default it is far easier to recover set corners than to attempt to set same against a now adverse client. If not required to set corners by law, set them and only reference "to a point" in your description. Any surveyor worth his salt will find them and should hold them, but let him earn his fee if the subsequent rework does not come your way.
Do not label the 5.00 acres anything but the "Mortgage Limit Area" If the mortgage holder wants to foreclose on the 5.00 acres I believe the onus of meeting all subdivision laws falls on the mortgage company. They can add it to the loan costs bur sill have no lean on the remaining 6 acres.
"Buyer Beware" and the mortgage company is the knowledgeable person and have taking the risk by not encumbering the whole parcel.
Paul in PA
Set Corners For Your Benefit And Use. WHO Wrote this?
lean???? Lien!!
That doesn't really seem like Paul in PA writing!
Per Merriam-Webster
sub·di·vi·sion noun ?s?b-d?-?vi-zh?n
: one of the parts into which something is divided
: the act or process of dividing something into smaller parts
I don't know your State's laws, and they have their own definition of "subdivision". It seems like it would be best to pin it which helps identify what property the deed is based on. I am sure you can write a legal description without monuments in the ground, but the reason to pin it is so as to help clarify any ambiguities that might arise. You are creating a new piece of real property whether it falls under your State's subdivision laws or not.
Deed of Trust survey and City Regs
I helped a gentleman satisfy a re-finance on his FMHA loan; 160 acre dairy farmer that wanted to refinance his residence only for remodel. This type of FMHA financing only accepted up to 5 acres, they didn't want the entire 160 acres. The farm IS within the City limits.
The City of Norman has a 10 acre minimum for subdivided rural lands in the water supply reservoir watershed. The county won't record a tract smaller than 10 acres without the City approval (I know, I've argued with "Bessie" at the Clerk's Office 'til I'm blue in the face).
I went ahead and created a 5 acre parcel (and pinned it). I put some kind of blurb on there like "for mortgage purposes only, not a conveyance". The County Clerk recorded the mortgage (after a discussion) and Mr. Holstein, FMHA, the County and myself were happy.
Mr. Holstein fell over, stone-cold-graveyard-dead, from a heart attack a year later. Mrs. Holstein was left as trustee of the farm...but the 5 acres with the house was not in the trust, due to the refinance mortgage. It was her and Mr. Holstein's held with a JTWD.
This all went to foreclosure and eventually probate. The court ordered the 5 acres sold to satisfy the mortgage. The court ordered the County to record the conveyance. The court also specifically barred the City from interfering with someone purchasing and occupying the home, even though it was on a tract smaller than their "10 acre" minimum.
Soooo... now when someone calls about a survey asking, "Is there any way we can get around the City's 10 acre minimum?"... I tell them yes, but you have to die first.
Lean, Lien, Mean, Mien
It is my argument that the knowledgeable buyer/lender takes the risk on subverting subdivision laws.
Paul in PA
Deed of Trust survey and City Regs
> Soooo... now when someone calls about a survey asking, "Is there any way we can get around the City's 10 acre minimum?"... I tell them yes, but you have to die first.
My understanding (and I've been know to be wrong before, you can ask my wife) is that around these parts planning and zoning regulations regarding the subdivision of land are not enforceable when the division takes place due to an operation of law.
It would be considered a subdivision around here . But I have seen it done , I will not do it and I have also fixed a couple . The local County's take on it is you can record anything in the court house , but it may not meet the subdivision regulations you will not get a building permit , water meter etc. Tell the owner you have to follow the subdivision ordinance. Sorry .
You probably want to check your county regs, not state. Here in Mobile County, any division under 5 acres, regardless of the number of lots, is considered a subdivision and has to meet the county subdivision regs. As long as it's over 5 acres, as in your case, it's not considered a subdivision. That's out in the county outside of any city jurisdictions. Inside the city's jurisdiction is a whole other set of regs you have to go by. At the same time, in some adjacent counties in Mississippi, a division of a piece of property into only 2 lots is not considered a subdivision at all and no regs to abide by. It all depends on your local regulations.
That's how is is for me. They can't prevent an owner from recording or even splitting parcels. But after that you won't get any building permits until you comply with the zoning and subdivision ordinances.