I would familiarize myself with the ins and outs of zoning, discuss it with your client and consider the ramifications of: 1) stopping the survey, 2) showing it as two distinct parcels, or 3) adjusting the interior boundary to meet the client's and the zoning authority's criteria.
Academically, the statute of frauds is powerful and well established (the exception may be Louisiana). The judiciary leans towards limiting the ability of land to be transferred outside the confines of a written instrument, specifically a deed.
If Zoning gets a big head about their view that the lots have been merged. The direct question to the town attorney would be along the lines of, "Given that there's is no deed expressing an intent to merge the two parcels, when and how did the parcels merge?" Town attorney's aren't typically the crème de la crème of jurisprudence, but hopefully they wouldn't suggest that Zoning has the ability to supersede the statute of frauds.
Good luck, this sounds like a great opportunity to show the public the professionalism of land surveyors.
"Given that there’s is no deed expressing an intent to merge the two
parcels, when and how did the parcels merge?” ....hopefully they
wouldn’t suggest that Zoning has the ability to supersede the statute of
frauds.
I'll wager that the lots were merged at the request of the property owner at some time in the distant past - possibly to reduce the property tax rate or avoid some levy somewhere along the way. Because you are right - tax assessors can't do these things on a whim.
Should be simple enough to obtain a written record of the owners request to merger.
That would be ideal, but I doubt that there is much to be gained. If such a document can be produced, the property remains merged. If a document, possibly from as far back as 1874, cannot be produced - so what? Statute of Limitations. The property remains merged.
The OP's only hope is to show that this merger happened extra-legally in the relatively recent past.
That would be two separate buildable parcels here. The big problem will be is there room to meet zoning restriction for the new building. Anything built prior to existing building restrictions will be grandfathered and you would need a variance to build a new structure that violates present day zoning. Those are sometimes granted to allow the new building to "follow" existing neighborhood patterns.
Neither the assessor nor the GIS department have authority to merge parcels. Already subdivided lots stay that way until they get re-subdivided, unless buildings were built across the lines and then they are automatically merged. However, I'm working with a landowner today that destroyed 1/2 a block of buildings, now he could build on each lot if he wishes (he doesn't), so the parking structure that covers 1/4 of a block still won't merge those lots. We know this cause we have had many public meetings and discussions with the "powers that be" over all these issues.
Your area may be quite different, local rules will prevail.
I'm reminded of the local city council that gave the GIS map authority over zoning layout. That didn't turn out well for them, but the courts held to the vote of the council overriding the legal descriptions adopted by the council for zoning layout and held the GIS (quite different) layout.
In my area, at least, (Western Washington) there are two forms of merger. One eliminates a subdivision, the other does not, it merges tax parcels for convenience.
If the lot was platted, the assumption is that the subdivision still exists, unless there is evidence to the contrary. Such evidence includes structures (are the built across the property lines) and recorded documents.
Yes, the assessor has chosen to consolidate tax parcels, and whether it was at an owner's request or not is often lost after 100 years or so.
I often do surveys showing underlying lots as subdivisions within a larger single tax parcel, and even will do boundary line adjustments of the interior lines.
We used to do a lot of feasibility (presale) surveys where we resolved the boundary and located the major improvements to determine if a lot could be broken off of a tax parcel. (My understanding is that, in practice, Seattle considers a lot to be consolidated if there is a house built over the lot line. Not sure if that has been litigated.)
The statute of frauds is powerful; however a merger of two parcels is not a tranfer of title.
In Oregon we have this little ditty in our State Statutes' 92.017 Lawfully created units of land; judgments relocating property lines. (1) A lawfully created lot or parcel remains a discrete lot or parcel unless the lot or parcel lines are vacated or the lot or parcel is further divided as provided by law.
I also recall a Court decision relating to this topic in regards to the "taking" clause of the constitution. See: https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2017-2018/september-october-2017/us-supreme-court-rules-for-wisconsin-in-takings-challenge-to-zoning-rule/
But as Mark states above, who has the wherewithal to take on city hall? Wish more people would though. My 2 cents, Jp
Different worlds seem to exist all around us. One jurisdiction says this while another says nothing.
We run around wide open doing pretty much what we want to do and sneer at places where everyone else seems to have more control over your private property than you do.
Here, if you want to mortgage a fraction of your property rather than all of it, you can do it. That is not treated as being a proprety division. In the rare case that a foreclosure happens, then those directly involved must sort out any issues about the apparent land division.
For the most part, in a lot and block setting, you can sell half of your lot to one neighbor and the other half to your other neighbor. Each neighbor then owns a full lot plus half of another. There is no such thing as a lot line adjustment. Similarly, if an alley is vacated, and your lot abuts it you then own a lot as one tract and the portion of the alley as a separate tract. You could sell your alley tract to the owner on the other side of the alley if you wanted to do so with no problem.
I can think of quarter sections where perhaps ten or so tracts have been created and sold off one at a time with no requirement to label the entire quarter section as a named subdivision with all of the other fooferall that exists in other places.
I realize this sounds like insanity to many of you, but, it's continues every day.
It comes down to whether the land owner pays upfront or their successors pay later. The paying later model usually means lower fees for land surveyors and higher fees for attorneys.
not-my-real-name, since you are in Mass. my comments are Mass.-specific. While I agree that showing the two lots on your plan would be a retracement of existing lot lines, the problem for your landowner will be that the lots viewed separately will not enjoy pre-existing non-conforming status under the zoning statute, and the municipality will be free to deny permits for any further construction on the lots. You should do a deep dive on the local zoning ordinance to see what work-around might exist, and review the ANR handbook. The chapter titled "Process for Approving Building Lots Lacking Adequate Frontage" provides some valuable information on the distinction between special permits and variances. I think that to be able to get a second residence permitted for the other lot, you will probably have to get either an ANR endorsement, or a Definitive Subdivision approval on your plan.
That sounds right but I can imagine quite a few scenarios where it wouldn't work. What if the owner purchased the lots at separate times and through the use of different lenders? Put another way, banks are keen on severability, what elements must be in place for an owner to have the ability to modify the interior boundaries of contiguous parcels without formalizing it in a deed? Sounds like exactly the title problems the statute of frauds is supposed to prevent.
