Doctrine of Merger

That isn't the Doctrine of Merger. Merger has to do with the extinquishment of easements when both the dominant and servient estates come under common ownership. What you are describing is simply an administrative procedure that the county tax assessor (probably) is driving.

Well then, I'll have to tell that to the lawyers that explained it to me.

@norman-oklahoma: Extinguishment of easements is one aspect of the doctrine of merger, but it has more applications than that, such as termination of trusts and such as merging of lots for zoning purposes.

@not-my-real-name: What were the circumstances of those two mergers? In particular, were one or more of the lots non-conforming to zoning bylaws?

The intended public benefit of the doctrine is the reduction or elimination of non-conformity of lots.

The states are all over the place in regard to how their statutes and case law regard merger of adjoining lots. For a brief introduction and overview of the doctrine of merger for zoning purposes in Massachusetts (not-my-real-name's state), including a recent change in a relevant statute, see:

https://www.mbmllc.com/the-affordable-homes-act-massachusetts.html#:~:text=The%20merger%20doctrine%20is%20%E2%80%9Cautomatic,the%20entire%20lot%20is%20conforming.

Regarding your question about whether lots can be "un-merged," the above article claims that they typically cannot. E.g., if a lot with preexisting nonconforming status ("grandfathered") is merged with another lot under common ownership, and they are later conveyed into separate ownership, the preexisting nonconforming status is lost. However, if a town incorrectly applied the doctrine of merger (from googling, I gather that that's not particularly rare), then that's something that the property owner and her/his lawyer can challenge and possibly correct.

For some contrasts among states (CA and PA), see:

https://amerisurv.com/2010/05/22/when-two-become-one-a-look-at-the-law-of-merger-of-adjoining-parcels/

For some more contrast (NJ), see:

https://www.hillwallack.com/?t=40&an=15702

It appears that NJ uses a very narrow interpretation of common ownership while MA has a broader interpretation.

The doctrine does have some application in other areas of law, such as contracts. But in a boundary law application, it is about easements. Nowhere does it cause seperate tracts to be merged into one.

Consider this quote from the Oregon case of Manusos v. Skeels: 

"Under the doctrine of merger, when a deed is delivered pursuant to the terms of a previous agreement, the deed 'supersedes the contract as to all its provisions made pursuant to the terms of the latter[.]'" Archambault v. Ogier, 194 Or App 361, 369, 95 P3d 257 (2004) (quoting City of Bend v. Title & Trust Co., 134 Or 119, 127, 289 P 1044 (1930)). Upon merger of the sales agreement into the deed, any contractual rights and duties relating to title or possession are extinct unless memorialized in the deed. See id.; see also Johnston v. Lindsay, 206 Or 243, 248-49, 292 P2d 495 (1956) ("Covenants deemed to be collateral and dependent, it is said, are not destroyed by the execution of the deed, but a covenant is not so regarded if it looks to or is connected with the title, possession, quantity or emblements of the land which is the subject of the contract. In the case of a covenant regarding those matters the execution of the deed in pursuance of the contract will operate as an extinguishment of it."). Therefore, any benefit plaintiff may have claimed under the sales agreement was extinguished upon execution of the deed that did not mention an easement for her benefit.

In one case the two lots were created in 1839, currently non-conforming, but existing before the Zoning Act. All corner monuments of both lots were found. I advised my client to submit the map as existing boundaries, but the city disagreed and told me the lots had been "merged" requiring a subdivision to recreate them. That is when the lawyers gave me their lesson on the Doctrine of Merger

The second case invovles to large parcels in common ownership that were "merged" by the town. Neither of the parcels are non-conforming. The client found the parcels had been "merged" after questioning the town about why they used to send two property tax bills, and now only send one.  

Hi, @norman-oklahoma. Extinguishment of contract terms by a subsequent deed is indeed one area of application of the merger of doctrine. Terminations or extinguishments of leases, mortgages, and easements, and reduction or elimination of zoning nonconformities are others. Perhaps not every state applies the doctrine to all those areas, and clearly the states have differences in how they interpret the doctrine in some of those areas.

The cited Oregon case does address an easement, but "easement" is not the central issue; extinguishment of contract terms is. The usual application of the doctrine of merger to easements arises when a dominant estate and a servient estate come into common ownership. In that case, any easements are extinguished. The Oregon case is apparently about a single parcel, so common ownership is not an issue. It appears that the contract or sales agreement had a term for creating an easement, but there was no express survival clause for that term in the contract, nor was it memorialized in the subsequent deed. Therefore, the easement never came into existence. Whichever party would have benefited from the easement was out of luck after the deed was executed.

Also, the Oregon case says nothing about whether Massachusetts (the OP's state) applies the doctrine of merger to zoning nonconformities. Here are five court decisions from Massachusetts that all invoke the doctrine of merger. They all are about zoning issues. Except for the last one (Macdonald v Zoning Board of Appeals for the Town of Mashpee), none contain the word "easement." In that last one, the mention of "easement" is not consequential. It's in the sentence "The lots on the 1965 Plan are subject to a scheme of restrictions and easements," after which there's no more mention of easements; it's the restrictions that are at issue.

http://masscases.com/cases/app/83/83massappct336.html

http://masscases.com/cases/land/2015/2015-13-480693-DECISION.html

http://masscases.com/cases/app/93/93massappct548.html

http://masscases.com/cases/app/97/97massappct901.html

https://masslawyersweekly.com/wp-content/blogs.dir/1/files/2022/07/14-054-22.pdf

Hi, @not-my-real-name. The case of the two nonconforming lots from 1839 sounds like a usual application, in Massachusetts, of the doctrine of merger for zoning purposes.

The second case, of the two large, conforming parcels, does make me wonder. I'm guessing that neither parcel had a house (e.g.) on it, or only one of the parcels had a house. I'm wondering if the town is claiming merger in order to invoke prohibition of more than one dwelling on a lot, i.e. to prevent the owner from building a second house, or to at least require the owner to go through the subdivision process. I've not yet found a Massachusetts court decision regarding merger or alleged merger of only conforming lots.

I think that in some states the courts have looked at the physical reality or the common owner's actions as factors in determining whether the lots have merged. For hypothetical examples, one lot is at the top of a cliff and the other is at the bottom, so that one occupant can't feasibly make use of the two lots as a single one, or the common owner plants a substantial hedge on the boundary upon becoming the common owner of both lots.

@not-my-real-name: It's a long shot, but it would be fun if the answer is "yes": were the found monuments on the 1839 lots original from 1839?

You don't have to believe me about merger doctrine. Google it. But the long and the short of this is that if the agency with permit issuing authority thinks that the lots are merged and you need to do a subdivision, then you better do a subdivision.   

I am sure the monuments are original, but I am not about to fight, and make this a bigger mess. It's just a shame that the client has to pay to replace a line that already exists, except in the eyes of the city and their lawyers.

not-my real-name, when lots are merged under common ownership to bring them into conformance with zoning requirements, it begs the question, was one lot vacant or both improved with maybe two dwellings.  I am no outhouse lawyer, in fact, none of us practice law in our profession but from what I am reading, everything revolves around zoning laws to bring combined lots into conformance or grand father clauses where both lots were improved prior to the zoning ordinances.

None of the above is for us to decide, we just document the evidence and present it to the maximum extent possible based on filed and dated deeds and monumentation.

A really common thing in the Portland area in the early days was for 200 foot square city blocks to be subdivided into 25' x 100' lots. People would purchase 2, 3, or 4 lots and build, the composite lot being recorded as a single tax lot. Today, if you wish to redevelop, those interior plat lines exist from a survey perspective, but the city requires a new subdivision plat if you wish the split them apart. Just as in the OPs case.     

Posted by: @norman-oklahoma

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A really common thing in the Portland area in the early days was for 200 foot square city blocks to be subdivided into 25' x 100' lots. People would purchase 2, 3, or 4 lots and build, the composite lot being recorded as a single tax lot. Today, if you wish to redevelop, those interior plat lines exist from a survey perspective, but the city requires a new subdivision plat if you wish the split them apart. Just as in the OPs case.     

We have the same here in St. Louis. Just helped a couple split their property back out into the platted lots.