My uncle created four parcels using a parcel map approximately two years ago, and then gave me one of the parcels as a gift. May I now subdivide that parcel into four new parcels using a parcel map?

Receiving a parcel as a gift and then subdivide that parcel into four new parcels using a parcel map

California Surveyor
Summer 2008  Issue #155

ASK THE MAP ACT EXPERT

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Question

My uncle created four parcels using a parcel map approximately two years ago, and then gave me one of the parcels as a gift.  May I now subdivide that parcel into four new parcels using a parcel map?

Answer

The Basic Mapping Rules

This is an excellent question that raises the issue commonly referred to as  “quartering,” or “four-by-fouring” i.e., whether the actively is in fact the successive division of contiguous parcels into four parcels by the common owner of the contiguous parcels.

The Map Act sets up two different but similar mapping approaches, depending on the number of lots sought to be created:  (1) A two-step approach is generally required for a subdivision that seeks to create five or more parcels – approval of a “tentative” map (non-recordable), followed by a “final” map (recordable); whereas (2) A simpler, one-step approach is generally required for a subdivision that seeks to create four or fewer parcels – approval of a recordable “parcel” map.  (Gov. Code §§ 66426, 66428.)  The tentative/final map process is the heart and soul of the Map Act, whereas parcel maps were not added to the Map Act’s regulations until the early 1970s. The parcel map process is designed to be simpler than the tentative-final map process because subdivisions of four or fewer parcels are generally thought to be – and hence are treated as – simpler subdivisions.

Quartering becomes a concern under the Map Act when it is used to avoid the tentative/final mapping requirements by continually subdividing contiguous parcels into four or fewer parcels in order to use the simpler parcel map approach.  In response, certain rules have developed that are designed to prevent unlawful quartering.  Unfortunately, the substance of these rules is not clear, nor is their enforceability.  The only rules we know of come from two published court decisions and a few California Attorney general opinions, all of which are over thirty years old.

We do know, as a rule, that the successive division of contiguous parcels by the same subdivider will be considered together for purposes of determining the number of parcels to be created.  Bright v. Board of Supervisors, 66 Cal.App.3d 191 (1977).  We also know, as a rule, that two or more different subdividers cannot purposefully attempt to evade the tentative-final map requirements by successively dividing parcels into four or fewer parcels.  Pratt v. Adams, 229 Cal.App.2d 602 (1964).

However, the law against quartering becomes fuzzy in determining whether two or more subdividers are working together to purposefully evade the tentative-final map requirements.  The only known legal authority addressing this question is a California Attorney General opinion from 1972 (55 Cal. Ops. Atty. Gen. 414, 417 (1972)).  In that opinion, the Attorney General stated the following rule:

If there is evidence that the transfer is not an “arm’s length transaction,” for example, a sale for inadequate compensation, a transfer to a close relative or business associates, retention of control or financial interest, or generally a transfer which is part of a conspiracy to evade the Subdivision Map Act, the total number of lots should be treated as a subdivision.

In other words, it appears that the Attorney General is applying an “agency relationship” between the parties so that later subdivisions are actually counted against the original subdivider (who is acting in agency with the later subdividers).  However, this rule from the Attorney General raises several questions.  We note that the Attorney General opinion was issued in November of 1972, which was the same year that the Legislature added parcel maps to the Map Act.  The Prior to 1972, the Map Act did not apply at all to subdivisions of four or fewer parcels.  The opinion reads as though the Attorney General was not aware of the parcel maps legislation.  Query whether the Attorney General would have established a different rule, or found no rule necessary, had the Attorney General been aware of parcel maps.

In addition, the particular examples of unauthorized transactions described by the Attorney General are vague.  What is inadequate compensation and why does that matter?  Who would be considered a close relative or business associate and why does that matter if the original subdivider is not getting anything out of the later subdivision (money wise or otherwise)?  How much control or financial interest may the seller retain or is any compensation enough to make the subsequent subdivider subject to the tentative/final rule?

Perhaps the question presented here is best answered if we consider the reasons behind the rules against quartering.  The reason stated by the Attorney General is generally to prevent conspiracies to evade the Map Act; that is, to use parcel maps where tentative/final maps would and should be required.  The key question becomes whether the subsequent subdivider is in reality the agent of the original subdivider, and therefore that the original subdivider is in reality the only subdivider.

For example, let us suppose that for the present question, the uncle gave the parcel in question to his nephew as a gift, but under the condition that the uncle would receive some of the profits from the sale of the parcels created by the nephew.  The uncle would have given the appearance of having created only four parcels, and the nephew having created four, but in reality the nephew is the agent of the uncle and the uncle created all eight parcels.  But, conversely, should the same result occur when the uncle is truly gifting the land to his nephew and wants nothing in return?

In the authors’ opinion, the answer to the question depends on whether or not the nephew is acting as the agent of the uncle.

Are Concerns About Quartering Justified?

The foregoing discussion leads us to the broader question of whether express rules against quartering are necessary at all.  Arguably, local governments already have all the tools they need to address the potential problem of quartering.  As mentioned above, practically speaking, many local governments impose no greater or more encompassing conditions of approval on a tentative map than it would on a parcel map.  Therefore, there would be no discernable difference between the two.  In addition, the local government can locally require a tentative parcel map where a parcel map is otherwise required.  (Gov. Code § 66428.)  These tools would allow local governments to remove any practical benefit from the subdividers using quartering to avoid the requirements of the tentative-final map process.

Local governments also have the power to ask any and all questions they desire in their application for a parcel map.  The application can inquire about the nature of the ownership of the property, how the property was transferred to the current owner, what entities were involved in the transaction, the nature of the transaction, and what, if any, subdivisions have occurred on the property or adjacent properties recently.  In short, local government is able to obtain all the information it needs to determine whether or not a tentative map is required before an unlawful quartering occurs.

Lastly, for now, consider the typical situation in which quartering occurs.  Generally, it is an unwitting subdivider who seeks to create four or fewer lots on a property, which, when considered with lots previously created on an adjacent property, would result in the creation of five or more total lots.  In this situation, a tentative and final map are required for the subsequent subdivision.  But one must ask what purpose is served by requiring this subsequent subdivision to go through a tentative and final map process where fewer than five lots are being created.  The tentative and final map process would make sense if all of the lots, the new lots and the previous lots from the adjacent property, were subject to this process, but they are not.  Only the fewer than five lots in the subsequent subdivision are subject to the tentative and final map process.

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As the foregoing illustrates, quartering and the proper counting of parcels can be a complicated task.  However, the Map Act, if understood and utilized properly, provides all the tools local governments need.

 

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