1st: can conditions be placed on a remainder parcel?
thanks
What do you mean by "conditions"?
> 1st: can conditions be placed on a remainder parcel?
>
> thanks
I just did a job where there was a covenant/restriction placed upon the remainder parcel that did not allow the remainder to be further subdivided within 200' of the out parcel. It was basically a sideways method for creating a buffer.
The strange part in this situation is that the covenant/restriction was placed into the granting deed for the out parcel. The C/R did not show on the remainder's deed until it (the remainder) was sold a few years later.
Do you mean " at the time of subdivision?" or " at the time of transfer?"
Can't the owner could place conditions on a deed any time the property is transferred (whether the parcel is a remainder lot or not)?
I can write building restrictions, reserve well and aqueduct rights or view easements into the deed when it is transferred.
More often than not the "remainder parcel" does not have a description until it is transferred to another. Then it might be the original description less and except multiple parcels spanning any number of years. Any of the excepted parcels may have conditons that attach to the remainder.
Finding the conditions is easy compared to convincing others that they should be included in the description.
Paul in PA
There was a condition that states "no oak tree removal" on any parcel including the remainder parcel. The owners are doing a new subdivision of the remainder parcel, and claim the "no oak tree removal part" couldn't apply to the remainder parcel because the county had no right to place conditions on a remainder.
Thanks for your help.
so this would be at the time of subdivision, when the remainder was created.
thanks.
If I understand you correctly, yes. As part of the approval process the municipality can require retrictions or special uses or even donations relating to other properties held by the applicant.
Arguments of unconstitutional taking on these matters are usually a question of degree.
> Arguments of unconstitutional taking on these matters are usually a question of degree.
I agree Duane. Deed restrictions, covenants, and all sorts of if-come-can't do issues are all subject to a higher power. Unfortunately, it too often comes in the form of a zoning official on a self proclaimed platform of higher power.
But it does seem odd that a remainder parcel would be subjected to that scrutiny, especially if the intent was to not restrict their uses.
Yes, the poster doesn't really say if this is in a deed covenant between private parties or if it's a condition outside the deed stemming from the previous subdivision approval process. If it's only a deed covenant between private parties the municipality has no jurisdiction. Would have to be enforced in a civil action by the owners within the previous subdivision.
Hope this is a little more specific:
There was a subdivision that created 3 lots plus a remainder. There was a condition on that lot split (subdivision) that states "no oak tree removal" on any parcel, including the remainder parcel. So, yes, this was part of the subdivision approval process by county planning commission.
The same owners are now doing a new subdivision of the remainder parcel, and claim the "no oak tree removal" couldn't apply to the remainder parcel because the county (planning commission) could not place conditions on a remainder parcel... or rather, that state law does not allow conditions on remainder parcels (other than public improvements.)
Thanks for your thoughts and comments.
> There was a subdivision that created 3 lots plus a remainder. There was a condition on that lot split (subdivision) that states "no oak tree removal" on any parcel, including the remainder parcel.
My guess is that the conditional approval of the subdivision that stipulated "no oak tree removal" applies to the remainder. You stated "...subdivision that created 3 lots PLUS the remainder...". Therefore the remainder is part of the subdivision and subject to your CCR's.
Your client loses IMHO. Unless of course you can arrange a biggassss lightening storm to pass your way. Or a hurricane, major wind shear episode, or even a terrorist truck bomb.
Alternatively, you could petition the county for a waiver. But as stated above, CCR's are a civil issue, and are not enforceable by a municipality unless they violate zoning and/or ordinance regulations.
good luck
The remainder being called the remainder after a subdivision of 3 lots, "called lots", indicated that the remainder was just that and a separate entity from the approved subdivision. Planning offices are notorious in attempting to obtain control of more of your lands than the law allows, they do it by requiring various non-enforceable documents to be prepared and signed by the owners as a condition of approval of the subdivision. Such documents stating an obligation to agree with some speculative improvement project or other things the planner wants are business as usual. Usually those documents are not recorded but filed with the application and approvals in the Planning Office. Most believe those documents are not enforceable because of the methods used in obtaining them. Once the restriction is placed in the deed document itself, it becomes harder to defeat because it has became a part of the sales agreement that transferred title. I think there would be some risk in cutting trees in this case, unless there is some court action taken that successfully makes that restriction null and void. Cutting trees without that court action to remove that restriction, "cloud", off of the land, could be grounds for a lawsuit that, win or loose, would be expensive.
jud
Which state is this in? This is likely a topic which requires analysis of the land division laws of the state in which you practice.
this is in CA
California Subdivision Map Act Section 66424.6
66424.6. (a) When a subdivision, as defined in Section 66424, is of
a portion of any unit or units of improved or unimproved land, the
subdivider may designate as a remainder that portion which is not
divided for the purpose of sale, lease, or financing. Alternatively,
the subdivider may omit entirely that portion of any unit of improved
or unimproved land which is not divided for the purpose of sale,
lease, or financing. If the subdivider elects to designate a
remainder, the following requirements shall apply:
(1) The designated remainder shall not be counted as a parcel for
the purpose of determining whether a parcel or final map is required.
(2) For a designated remainder parcel described in this
subdivision, the fulfillment of construction requirements for
improvements, including the payment of fees associated with any
deferred improvements, shall not be required until a permit or other
grant of approval for development of the remainder parcel is issued
by the local agency or, where provided by local ordinance, until the
construction of the improvements, including the payment of fees
associated with any deferred improvements, is required pursuant to an
agreement between the subdivider and the local agency. In the
absence of that agreement, a local agency may require fulfillment of
the construction requirements, including the payment of fees
associated with any deferred improvements, within a reasonable time
following approval of the final map and prior to the issuance of a
permit or other grant of approval for the development of a remainder
parcel upon a finding by the local agency that fulfillment of the
construction requirements is necessary for reasons of:
(A) The public health and safety; or
(B) The required construction is a necessary prerequisite to the
orderly development of the surrounding area.
(b) If the subdivider elects to omit all or a portion of any unit
of improved or unimproved land which is not divided for the purpose
of sale, lease, or financing, the omitted portion shall not be
counted as a parcel for purposes of determining whether a parcel or
final map is required, and the fulfillment of construction
requirements for offsite improvements, including the payment of fees
associated with any deferred improvements, shall not be required
until a permit or other grant of approval for development is issued
on the omitted parcel, except where allowed pursuant to paragraph (2)
of subdivision (a).
(c) The provisions of subdivisions (a) and (b) providing for
deferral of the payment of fees associated with any deferred
improvements shall not apply if the designated remainder or omitted
parcel is included within the boundaries of a benefit assessment
district or community facilities district.
(d) A designated remainder or any omitted parcel may subsequently
be sold without any further requirement of the filing of a parcel map
or final map, but the local agency may require a certificate of
compliance or conditional certificate of compliance.
> Hope this is a little more specific:
> There was a subdivision that created 3 lots plus a remainder. There was a condition on that lot split (subdivision) that states "no oak tree removal" on any parcel, including the remainder parcel. So, yes, this was part of the subdivision approval process by county planning commission.
> The same owners are now doing a new subdivision of the remainder parcel, and claim the "no oak tree removal" couldn't apply to the remainder parcel because the county (planning commission) could not place conditions on a remainder parcel... or rather, that state law does not allow conditions on remainder parcels (other than public improvements.)
>
> Thanks for your thoughts and comments.
If the owners of the parcel agreed to the conditions (no oak tree cutting) imposed during the first subdivision then they should expect to abide by that decision. So make sure and push the oak trees over with an excavator instead of cutting them.
Good point. If they are burned on site, have they been "removed"? Time for a bonfire party?