Does a Certificate of Compliance on a parcel extinguish the underlying historic parcels?

Does a Certificate of Compliance on a parcel extinguish the underlying historic parcels?

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Question

Does a Certificate of Compliance on a parcel extinguish the underlying historic parcels?

I assume by the question that a Certificate of Compliance was issued for a larger parcel, and that unbeknownst to the owner, the larger parcel actually contained smaller older parcels (that had been created legally some time before), and that the Certificate of Compliance does not show those smaller parcels or recognize them in any way.  As such, the question is would such a Certificate of Compliance be said to have extinguished those smaller, interior historic parcels by failing to show them, or do those parcels still exist?

Answer

This is a very interesting question! Let’s walk through the Map Act[1] statute.

We know that Certificates of Compliance are addressed in a couple of sections in the Map Act.  Section 66499.35(a) provides that a person owning real property may request that a local agency determine whether the property complies with the Map Act.  In other words, the local agency must determine whether the property is a lawful parcel under the Map Act.  If the property complies with the Map Act, the local agency must issue a Certificate of Compliance for the property.  In addition, under Section 66499.35(c), a Certificate of Compliance must be issued for any property “that has been approved for development” pursuant to Section 66499.34.  Section 66499.34 in turn provides that the issuance of a permit or a grant of approval for the development of property, or where improvements have been completed prior to the time that a permit was required for those improvements, such property shall constitute property “that has been approved for development” for purposes of Section 66499.35(c).  Finally under Section 66499.35(d), a recorded final or parcel map serves as a Certificate of Compliance.

In other words, several different action can result in the issuance of, or itself serve as, a Certificate of Compliance.  However, none of these Map Act sections addressing Certificates of Compliance expressly speaks to whether the issuance of a Certificate for a parcel extinguishes smaller, older parcels contained within the Certified parcel.

And we know from the Map Act that there are different ways to consolidate, reconfigure and/or reduce or extinguish old, existing parcels, including merger, lot line adjustment, reversion to acreage and “re-mapping” through a subsequent recorded map (“Subsequent Map”).

Your question seems to recognize re-mapping and perhaps a fear that a Certificate of Compliance not showing all the legal lots could be argued to have the same effect as a Subsequent Map (i.e., to merge all lots not shown).

Under the Subdivision Map Act sections 66499.20¼ and 66499.20½, a subdivider can extinguish earlier created parcels if the Subsequent Map does not show those earlier parcels on the face of the Subsequent Map, the normal mapping process is followed (including all holders of recorded interests signing the Subsequent Map), and the Subsequent Map is recorded.  Obviously, those steps are especially easy to complete when the party processing the Subsequent Map hold all rights in the land contained within the Map.  However, these re-mapping sections of the Map Act expressly provide for that “consolidation/merger/reversion” result, and set forth the steps required to secure that result.  Again, in contrast, none of the Map Act sections addressing Certificates of Compliance expressly provide that same power to extinguish (consolidate/merge/revert) smaller, older parcels contained within the Certified parcel.

And finally, none of the Map Act sections addressing consolidation/merger/reversion (the merger, lot line adjustment, reversion, re-mapping, exclusion, etc. sections of the Map Act) authorize the extinguishment of smaller, older parcels through the recording of a Certificate of Compliance for a larger parcel containing those smaller, older parcels.

Conclusion: For the reasons set forth above, I think the better argument is that a Certificate of Compliance issued for a larger parcel, which larger parcel (unbeknownst to the owner) actually contained smaller, older parcels (that had been created legally some time before), does not extinguish those smaller, interior historic parcels by failing to show them.  That simply is not within the job description of a Certificate of Compliance.  Its sole job is to declare a lot to be in compliance;  its job does not include consolidation/merger/reversion.


[1] Gov’t Code §§ 66410 – 66499.37

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