The Applicable Rules Whether a Parcel Map or a Tentative/Final Map is Required

The Applicable Rules Whether a Parcel Map or a Tentative/Final Map is Required

ASK THE MAP ACT EXPERT

Download the original article as a PDF

Question

Sometimes it is confusing whether a parcel map or a tentative/final map is required.  Would you please explain the applicable rules?  I would also appreciate a refresher on subdivisions where the Map Act does not apply.

Discussion

The following are some important basic concepts that help with the determination of whether a parcel map or tentative/final map is required:

¨        Rule of Contiguity.  Generally, a subdivision creating five or more lots requires a tentative and final map, whereas the creation of four or fewer lots requires a parcel map.  Gov’t Code §§ 66426, 66428.  However, sometimes the “accounting” of the number of parcels created over time is not easy.  Suppose a subdivider purchases two contiguous lots and seeks to subdivide one of those lots into four new lots.  What kind of map is required?  A parcel map, because four new lots are created (the original 2 legal lots are not counted).  Ten years later, that same subdivider seeks to subdivide the other contiguous lot into two new lots.  What kind of map is required?  Tentative/final map, because the original lots were held in common ownership, and therefore the original subdivision of 4 is counted against the later lots split of 2 on contiguous property.  In other words, two new lots are contiguous to the previous four lots, and therefore are added to and counted with those original four lots for a total of six lots.  The later-in-time lot split would be effectuated by a tentative/final map!  (Bright v. Board of Supervisors, 66 Cal.App.3d 191 (1977).)

¨        Timing.  This contiguity principle is further illustrated by the “timing” case of Bright v. Board of Supervisors case cited above, where a subdivider owned two adjacent parcels.  He owned the first parcel as separate property.  He owned the second property with his wife as joint tenants.  In 1971, the owner transferred a portion of the second property to his wife as her separate parcel.  In 1973, he applied for a tentative parcel map proposing to divide the first property into four lots.  The court held that the 1971 division and the 1973 division had to be counted together for purposes of determining whether a parcel map or a tentative and final map would be required.  Thus, six parcels were created.  The fact that the second division occurred later in time did not matter to the court.  As long as the same subdivider causes the division, the passage of time does not change the fact that five or more parcels are created.

¨        Quartering.  Another tricky issue is “quartering.”  Successive divisions of property will not be counted together in ascertaining the total number of parcels created if the divisions are by independent action of successive and different owners.  61 Ops. Cal. Atty. Gen. 114 (1978).  Successive divisions of a property into four or fewer parcels by successive owners is sometimes referred to as quartering.  The first owner divides the property into four parcels; then a subsequent owner divides one of those parcels into four parcels; then a subsequent owner divides one of those parcels into four parcels; and so on.  The key question is whether the previous divider has a relationship with the subsequent divider.  If there is a relationship – for example, if the two parties are business associates, one is the agent of the other, or they are friends – then successive divisions that total five or more parcels may require a tentative and final map.

¨        Conveyances to/from a Governmental Agency.  First, all conveyances to or from a governmental agency are not subject to the Map Act.  Gov’t Code § 66428(a)(2).  Second, if one of the lots created by a subdivision is conveyed to a governmental agency, then that lot is not counted for purposes of determining which map is required.  Gov’t Code § 66426.5.  Say, for example, a subdivider creates five new lots, but conveys one to the city for use as a park.  What kind of map?  A parcel map, because the lot conveyed to the city is not counted, meaning that four lots were created.

¨        Remainder Parcels.  Remainder parcels also are not counted for purposes of determining which map is required, as long as the parcel is designated as such and is not being subdivided for sale, lease or financing.  Gov’t Code § 66424.6.  Cities and counties often express concern that this policy for remainders will lead to unregulated development on the remainder parcel, but the city/county may require a subdivider to construct improvements or pay fees associated with improvements when a permit or other approval is issued for the development of the remainder parcel.  Moreover, although the remainder parcel may be sold without any requirement of filing a parcel or final map, the city/county may require a conditional certificate of compliance.

In addition to being able to determine whether a parcel map or a tentative/final map is required, it is important to know whether the Map Act even applies.  The following is a list of circumstances where the determination of whether the Map Act applies can be difficult:

¨        Reference to Assessor’s Parcels.  Assessor Parcel Numbers (APN) are used for the purpose of administrative convenience only and may not be relied upon as compliance with the Map Act for sale purposes where the real property had been assigned two numbers.  62 Ops.Cal.Atty.Gen. 147 (1979).  Where a unit of land has been subdivided in compliance with the Map Act and three contiguous lots of that subdivision are retained by the subdivider, the fact that the three lots have been combined as one APN does not merge the lots; a new parcel map is not required before any of the lots can be conveyed.  59 Ops.Cal.Atty.Gen. 581 (1979).

¨        Gift Deeds.  Gift deed conveyances violate the Map Act when transfers are made for the purpose of immediate or future sale, lease or finance by or for their children because the gift deed had sought to circumvent the Map Act.  Pescosolido v. Smith, 142 Cal. App. 3d 964 (1983).

¨        Financing.  The act of creating several deeds of trust upon different (lesser) portions of a legal parcel or unit of land constitutes a division of land within the meaning of a “subdivision” under the Map Act.  58 Ops.Cal.Atty.Gen. 408 (1975).

¨        Tax Sales.  Map Act and subdivision ordinances enacted pursuant to the Act do not apply to a tax collector’s sale of a portion of a tax-deeded parcel pursuant to Rev. and Tax Code § 3691.  64 Ops.Cal.Atty.Gen. 814 (1981).

¨        Public Schools.  The University of California is exempt from the Map Act when it constructs for-sale-on-campus homes as part of a program to provide faculty housing. 75 Ops.Cal.Atty.Gen. 98 (1992).

¨        Certain Easements.  A non-exclusive easement granting an adjacent landowner the right to construct and use a garage on his neighbor’s parcel does not constitute a subdivision of land because it merely created the right to use a portion of the property in a restricted manner, but did not divide real property into units that create possessory interests in land.  Blackmore v. Powell, 150 Cal.App.4th 1593 (2007).

The determination of whether the Subdivision Map Act applies to a particular subdivision or, if it is a subdivision, whether a parcel map or tentative/final map is required, can be more difficult than it seems.  An awareness of the applicable rules will better assist the practitioner when faced with these situations.

Leave a Reply

Your email address will not be published. Required fields are marked *