FAILURE TO FOLLOW MUNICIPAL SUBDIVISION REGULATIONS
There is an engineer who will remain nameless that apparently advises his customers that a city can't stop them from dividing property and transferring ownership of parcels even if the deed is an unapproved subdivision of land under municipal ordinances and that the only result is that the created parcel is "non-confirming." The engineer apparently believes there is nothing the city can do except deny the owner a building permit or some other use of the property that requires city approval. My opinion is that if property is subdivided without city approval and in violation of city ordinances then the conveyance is an illegal subdivision and void. Has anyone fought this battle and have an opinion, order or research on the issue they would share before I recreate the wheel?
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.
Jon's question is pretty timely for me as I've got a different, but related
question.
I've got a situation where a person came in applying for a lot split /
minor subdivision. When we looked into the records, we found that the
property in question is listed in the deeds as two separate tracts. The
land in question was acquired in bulk in the 1940s (owner acquired a half
of a quarter of a quarter of a quarter of a section), then an 85' x 250'
tract was conveyed twenty years later by the owner of the large piece of
property to her daughter. A decade later the owner conveyed an additional
81' x 250' tract to the daughter. Since then, the property has changed
hands 4 times, each time the Warrant Deeds listed what was being conveyed
as 2 tracts with 2 different legal descriptions. The area has never been
platted. Anything preventing them from selling one of the two tracts
without going through the lot split / subdivision process?
To Jon's question, when I first looked at my situation I noted that our
ordinances and, the way they are worded, the lot-split / subdivision would
only apply to platted land. Frankly, we have a ton of issues in our City
with land that has been platted but the lot lines don't match the actual
ownership (so you end up with a legal that is basically the west 80 feet
of lot 13 and east 20 feet of lot 14 of block 2). That's not in play with
my current situation, but I know it's an issue. I'm guessing that the land
was platted after some of the original pieces of property were conveyed and
that's why the platted lot lines don't match the actual ownership / legal
descriptions.
On Tue, Jun 21, 2022 at 3:59 PM Jon Miller JMiller@cityofmustang.org
wrote:
There is an engineer who will remain nameless that apparently advises his
customers that a city can't stop them from dividing property and
transferring ownership of parcels even if the deed is an unapproved
subdivision of land under municipal ordinances and that the only result is
that the created parcel is "non-confirming." The engineer apparently
believes there is nothing the city can do except deny the owner a building
permit or some other use of the property that requires city approval. My
opinion is that if property is subdivided without city approval and in
violation of city ordinances then the conveyance is an illegal subdivision
and void. Has anyone fought this battle and have an opinion, order or
research on the issue they would share before I recreate the wheel?
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that
is privileged or confidential. If you received this email in error, please
notify the sender by reply email and delete the email and any attachments.
If you are a and officer, employee or agent of the City of Mustang, you
should not share this email with others. Sharing this email may result in
a loss of the attorney-client privilege.
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Matt,
I would think the city has some flexibility on whether or not to require a lot split in your case. My initial thought would be that the tracts described by the separate legal descriptions could be conveyed separately. My only hesitancy would be that it has been a long time since I have reviewed the doctrine of merger and whether that doctrine would require the properties be considered “merged” into a single property. My recollection is that the merger doctrine only applies to property interests in the same tract (for example, if one person obtains a life estate in a property and later acquires the remainder or tail interest, then the two estates may merge by operation of law and the owner now has a fee simple). I don’t recall anything about the merger doctrine that requires merging together of separate properties. I would briefly look at that issue to make certain my recollection is correct.
On my issue, a filed final plat includes several common areas. The engineer says that the HOA wants to convey half of a common area to the owner of an adjacent lot (essentially increasing the size of the owners lot). My concern is that the recorded final plat defines the area as a common area and has restrictions on its face applicable to that common area (home owners association must maintain, all owners of lots in the subdivision are members of the home owners association, etc.). The process for changing the plat to remove property from being a common area and changing it to a private tract would be to amend or partially vacate the plat as to that common area. That process requires notice to all owners of lots in the subdivision and, if approved by the city, would be filed with the county records. Even then, though, there would have to be restrictions placed on the property (limit of no access except though the adjacent tract; resulting property is non-confirming and will not support construction; tract will be an appurtenance to the adjacent lot; etc.). An alternative would be to amend the plat to make that portion of the common area a part of the adjacent lot. The engineer is apparently telling the developer that they don’t have to do that and there is nothing the city can do to stop the developer from simply conveying the tract and filing the deed.
I also have concerns any time an owner of a lot in an existing filed plat wants to do a lot split of that lot. Property owners rely on recorded plats when they buy property. If an owner buys a home in a subdivision made up of large one acre lots, should a developer be allowed to buy 2 large lots and then do lot splits to make 6 smaller lots and build six homes on those lots? There is no notice requirement to do a lot split. However, there would be notice required to vacate a lot from an existing plat before you then replat it. Should a property owner wake up one morning to find that the open subdivision has become a more dense single family subdivision without notice to him or her because a developer was able to buy lots and do lot splits?
I would be interested to know if other cities allow lot splits for property that is already platted, or require the developer to replat or lot split existing platted lots.
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.
From: Matt Love matt.love@gmail.com
Sent: Tuesday, June 21, 2022 4:15 PM
To: Jon Miller JMiller@cityofmustang.org
Cc: oama (oama@lists.imla.org) oama@lists.imla.org
Subject: Re: [Oama] FAILURE TO FOLLOW MUNICIPAL SUBDIVISION REGULATIONS
Jon's question is pretty timely for me as I've got a different, but related question.
I've got a situation where a person came in applying for a lot split / minor subdivision. When we looked into the records, we found that the property in question is listed in the deeds as two separate tracts. The land in question was acquired in bulk in the 1940s (owner acquired a half of a quarter of a quarter of a quarter of a section), then an 85' x 250' tract was conveyed twenty years later by the owner of the large piece of property to her daughter. A decade later the owner conveyed an additional 81' x 250' tract to the daughter. Since then, the property has changed hands 4 times, each time the Warrant Deeds listed what was being conveyed as 2 tracts with 2 different legal descriptions. The area has never been platted. Anything preventing them from selling one of the two tracts without going through the lot split / subdivision process?
To Jon's question, when I first looked at my situation I noted that our ordinances and, the way they are worded, the lot-split / subdivision would only apply to platted land. Frankly, we have a ton of issues in our City with land that has been platted but the lot lines don't match the actual ownership (so you end up with a legal that is basically the west 80 feet of lot 13 and east 20 feet of lot 14 of block 2). That's not in play with my current situation, but I know it's an issue. I'm guessing that the land was platted after some of the original pieces of property were conveyed and that's why the platted lot lines don't match the actual ownership / legal descriptions.
On Tue, Jun 21, 2022 at 3:59 PM Jon Miller <JMiller@cityofmustang.orgmailto:JMiller@cityofmustang.org> wrote:
There is an engineer who will remain nameless that apparently advises his customers that a city can't stop them from dividing property and transferring ownership of parcels even if the deed is an unapproved subdivision of land under municipal ordinances and that the only result is that the created parcel is "non-confirming." The engineer apparently believes there is nothing the city can do except deny the owner a building permit or some other use of the property that requires city approval. My opinion is that if property is subdivided without city approval and in violation of city ordinances then the conveyance is an illegal subdivision and void. Has anyone fought this battle and have an opinion, order or research on the issue they would share before I recreate the wheel?
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.
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I have a few random comments:
It has been a few of years so I could be completely wrong, but I remember the following happening:
19 O.S. 863.10 provides that, under certain circumstances, a recorded deed is deemed invalid. An attorney argued that, pursuant to that statute, he didn’t have to go through a platting or lot split process because the newly created lots would be larger than 5 acres. I told him that statute didn’t apply because Wagoner County does not have within its boundaries a city with a population of 180,000 or more, and, thus, he would have to comply with the City of Broken Arrow’s lot split requirements. I then pointed him to 16 O.S. 27a, which provides the 5-year claw-back period. My interpretation of that provision is that cities can’t do anything about an improperly-done lot split if it has been more than five years since the “splitting” deeds were recorded. The only way I can think of to “claw back” is to file a District Court declaratory or injunctive relief action within 5 years of the improper/illegal recording. You might also look at 11 O.S. 41-106 and 111.
On the flip side, I assisted a landowner in Wagoner County who was denied a building permit because he split his lots without proper approval. It seems to me that, in certain circumstances, denying a building permit (if the improper split occurred within the last 5 years) might get you the result you need.
Depending upon the zoning code and subdivision regulation language re: lot splits for the particular city, I would probably advise a city to allow lot splits of platted land, but have at least an internal policy which limits the number of lots which can be created and the minimum lot size. Jon, I wonder if you can argue that common areas/open spaces/reserves/drainageways aren’t “lots” subject to being split – only subject to replatting. I would expect Staff to object to any lot split application which attempted to circumvent plat language or the statutory process for amending a plat.
Interesting conversation.
From: Jon Miller JMiller@cityofmustang.org
Sent: Tuesday, June 21, 2022 5:34 PM
To: Matt Love matt.love@gmail.com
Cc: oama (oama@lists.imla.org) oama@lists.imla.org
Subject: [Oama] Re: FAILURE TO FOLLOW MUNICIPAL SUBDIVISION REGULATIONS
Matt,
I would think the city has some flexibility on whether or not to require a lot split in your case. My initial thought would be that the tracts described by the separate legal descriptions could be conveyed separately. My only hesitancy would be that it has been a long time since I have reviewed the doctrine of merger and whether that doctrine would require the properties be considered “merged” into a single property. My recollection is that the merger doctrine only applies to property interests in the same tract (for example, if one person obtains a life estate in a property and later acquires the remainder or tail interest, then the two estates may merge by operation of law and the owner now has a fee simple). I don’t recall anything about the merger doctrine that requires merging together of separate properties. I would briefly look at that issue to make certain my recollection is correct.
On my issue, a filed final plat includes several common areas. The engineer says that the HOA wants to convey half of a common area to the owner of an adjacent lot (essentially increasing the size of the owners lot). My concern is that the recorded final plat defines the area as a common area and has restrictions on its face applicable to that common area (home owners association must maintain, all owners of lots in the subdivision are members of the home owners association, etc.). The process for changing the plat to remove property from being a common area and changing it to a private tract would be to amend or partially vacate the plat as to that common area. That process requires notice to all owners of lots in the subdivision and, if approved by the city, would be filed with the county records. Even then, though, there would have to be restrictions placed on the property (limit of no access except though the adjacent tract; resulting property is non-confirming and will not support construction; tract will be an appurtenance to the adjacent lot; etc.). An alternative would be to amend the plat to make that portion of the common area a part of the adjacent lot. The engineer is apparently telling the developer that they don’t have to do that and there is nothing the city can do to stop the developer from simply conveying the tract and filing the deed.
I also have concerns any time an owner of a lot in an existing filed plat wants to do a lot split of that lot. Property owners rely on recorded plats when they buy property. If an owner buys a home in a subdivision made up of large one acre lots, should a developer be allowed to buy 2 large lots and then do lot splits to make 6 smaller lots and build six homes on those lots? There is no notice requirement to do a lot split. However, there would be notice required to vacate a lot from an existing plat before you then replat it. Should a property owner wake up one morning to find that the open subdivision has become a more dense single family subdivision without notice to him or her because a developer was able to buy lots and do lot splits?
I would be interested to know if other cities allow lot splits for property that is already platted, or require the developer to replat or lot split existing platted lots.
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.
From: Matt Love <matt.love@gmail.commailto:matt.love@gmail.com>
Sent: Tuesday, June 21, 2022 4:15 PM
To: Jon Miller <JMiller@cityofmustang.orgmailto:JMiller@cityofmustang.org>
Cc: oama (oama@lists.imla.orgmailto:oama@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: Re: [Oama] FAILURE TO FOLLOW MUNICIPAL SUBDIVISION REGULATIONS
Jon's question is pretty timely for me as I've got a different, but related question.
I've got a situation where a person came in applying for a lot split / minor subdivision. When we looked into the records, we found that the property in question is listed in the deeds as two separate tracts. The land in question was acquired in bulk in the 1940s (owner acquired a half of a quarter of a quarter of a quarter of a section), then an 85' x 250' tract was conveyed twenty years later by the owner of the large piece of property to her daughter. A decade later the owner conveyed an additional 81' x 250' tract to the daughter. Since then, the property has changed hands 4 times, each time the Warrant Deeds listed what was being conveyed as 2 tracts with 2 different legal descriptions. The area has never been platted. Anything preventing them from selling one of the two tracts without going through the lot split / subdivision process?
To Jon's question, when I first looked at my situation I noted that our ordinances and, the way they are worded, the lot-split / subdivision would only apply to platted land. Frankly, we have a ton of issues in our City with land that has been platted but the lot lines don't match the actual ownership (so you end up with a legal that is basically the west 80 feet of lot 13 and east 20 feet of lot 14 of block 2). That's not in play with my current situation, but I know it's an issue. I'm guessing that the land was platted after some of the original pieces of property were conveyed and that's why the platted lot lines don't match the actual ownership / legal descriptions.
On Tue, Jun 21, 2022 at 3:59 PM Jon Miller <JMiller@cityofmustang.orgmailto:JMiller@cityofmustang.org> wrote:
There is an engineer who will remain nameless that apparently advises his customers that a city can't stop them from dividing property and transferring ownership of parcels even if the deed is an unapproved subdivision of land under municipal ordinances and that the only result is that the created parcel is "non-confirming." The engineer apparently believes there is nothing the city can do except deny the owner a building permit or some other use of the property that requires city approval. My opinion is that if property is subdivided without city approval and in violation of city ordinances then the conveyance is an illegal subdivision and void. Has anyone fought this battle and have an opinion, order or research on the issue they would share before I recreate the wheel?
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.
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Thanks, Tammy. That is helpful information.
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.
From: Tammy Ewing tammy@ewing.legal
Sent: Wednesday, June 22, 2022 10:51 AM
To: Jon Miller JMiller@cityofmustang.org; Matt Love matt.love@gmail.com
Cc: oama (oama@lists.imla.org) oama@lists.imla.org
Subject: RE: [Oama] Re: FAILURE TO FOLLOW MUNICIPAL SUBDIVISION REGULATIONS
I have a few random comments:
It has been a few of years so I could be completely wrong, but I remember the following happening:
19 O.S. 863.10 provides that, under certain circumstances, a recorded deed is deemed invalid. An attorney argued that, pursuant to that statute, he didn’t have to go through a platting or lot split process because the newly created lots would be larger than 5 acres. I told him that statute didn’t apply because Wagoner County does not have within its boundaries a city with a population of 180,000 or more, and, thus, he would have to comply with the City of Broken Arrow’s lot split requirements. I then pointed him to 16 O.S. 27a, which provides the 5-year claw-back period. My interpretation of that provision is that cities can’t do anything about an improperly-done lot split if it has been more than five years since the “splitting” deeds were recorded. The only way I can think of to “claw back” is to file a District Court declaratory or injunctive relief action within 5 years of the improper/illegal recording. You might also look at 11 O.S. 41-106 and 111.
On the flip side, I assisted a landowner in Wagoner County who was denied a building permit because he split his lots without proper approval. It seems to me that, in certain circumstances, denying a building permit (if the improper split occurred within the last 5 years) might get you the result you need.
Depending upon the zoning code and subdivision regulation language re: lot splits for the particular city, I would probably advise a city to allow lot splits of platted land, but have at least an internal policy which limits the number of lots which can be created and the minimum lot size. Jon, I wonder if you can argue that common areas/open spaces/reserves/drainageways aren’t “lots” subject to being split – only subject to replatting. I would expect Staff to object to any lot split application which attempted to circumvent plat language or the statutory process for amending a plat.
Interesting conversation.
From: Jon Miller <JMiller@cityofmustang.orgmailto:JMiller@cityofmustang.org>
Sent: Tuesday, June 21, 2022 5:34 PM
To: Matt Love <matt.love@gmail.commailto:matt.love@gmail.com>
Cc: oama (oama@lists.imla.orgmailto:oama@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: [Oama] Re: FAILURE TO FOLLOW MUNICIPAL SUBDIVISION REGULATIONS
Matt,
I would think the city has some flexibility on whether or not to require a lot split in your case. My initial thought would be that the tracts described by the separate legal descriptions could be conveyed separately. My only hesitancy would be that it has been a long time since I have reviewed the doctrine of merger and whether that doctrine would require the properties be considered “merged” into a single property. My recollection is that the merger doctrine only applies to property interests in the same tract (for example, if one person obtains a life estate in a property and later acquires the remainder or tail interest, then the two estates may merge by operation of law and the owner now has a fee simple). I don’t recall anything about the merger doctrine that requires merging together of separate properties. I would briefly look at that issue to make certain my recollection is correct.
On my issue, a filed final plat includes several common areas. The engineer says that the HOA wants to convey half of a common area to the owner of an adjacent lot (essentially increasing the size of the owners lot). My concern is that the recorded final plat defines the area as a common area and has restrictions on its face applicable to that common area (home owners association must maintain, all owners of lots in the subdivision are members of the home owners association, etc.). The process for changing the plat to remove property from being a common area and changing it to a private tract would be to amend or partially vacate the plat as to that common area. That process requires notice to all owners of lots in the subdivision and, if approved by the city, would be filed with the county records. Even then, though, there would have to be restrictions placed on the property (limit of no access except though the adjacent tract; resulting property is non-confirming and will not support construction; tract will be an appurtenance to the adjacent lot; etc.). An alternative would be to amend the plat to make that portion of the common area a part of the adjacent lot. The engineer is apparently telling the developer that they don’t have to do that and there is nothing the city can do to stop the developer from simply conveying the tract and filing the deed.
I also have concerns any time an owner of a lot in an existing filed plat wants to do a lot split of that lot. Property owners rely on recorded plats when they buy property. If an owner buys a home in a subdivision made up of large one acre lots, should a developer be allowed to buy 2 large lots and then do lot splits to make 6 smaller lots and build six homes on those lots? There is no notice requirement to do a lot split. However, there would be notice required to vacate a lot from an existing plat before you then replat it. Should a property owner wake up one morning to find that the open subdivision has become a more dense single family subdivision without notice to him or her because a developer was able to buy lots and do lot splits?
I would be interested to know if other cities allow lot splits for property that is already platted, or require the developer to replat or lot split existing platted lots.
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.
From: Matt Love <matt.love@gmail.commailto:matt.love@gmail.com>
Sent: Tuesday, June 21, 2022 4:15 PM
To: Jon Miller <JMiller@cityofmustang.orgmailto:JMiller@cityofmustang.org>
Cc: oama (oama@lists.imla.orgmailto:oama@lists.imla.org) <oama@lists.imla.orgmailto:oama@lists.imla.org>
Subject: Re: [Oama] FAILURE TO FOLLOW MUNICIPAL SUBDIVISION REGULATIONS
Jon's question is pretty timely for me as I've got a different, but related question.
I've got a situation where a person came in applying for a lot split / minor subdivision. When we looked into the records, we found that the property in question is listed in the deeds as two separate tracts. The land in question was acquired in bulk in the 1940s (owner acquired a half of a quarter of a quarter of a quarter of a section), then an 85' x 250' tract was conveyed twenty years later by the owner of the large piece of property to her daughter. A decade later the owner conveyed an additional 81' x 250' tract to the daughter. Since then, the property has changed hands 4 times, each time the Warrant Deeds listed what was being conveyed as 2 tracts with 2 different legal descriptions. The area has never been platted. Anything preventing them from selling one of the two tracts without going through the lot split / subdivision process?
To Jon's question, when I first looked at my situation I noted that our ordinances and, the way they are worded, the lot-split / subdivision would only apply to platted land. Frankly, we have a ton of issues in our City with land that has been platted but the lot lines don't match the actual ownership (so you end up with a legal that is basically the west 80 feet of lot 13 and east 20 feet of lot 14 of block 2). That's not in play with my current situation, but I know it's an issue. I'm guessing that the land was platted after some of the original pieces of property were conveyed and that's why the platted lot lines don't match the actual ownership / legal descriptions.
On Tue, Jun 21, 2022 at 3:59 PM Jon Miller <JMiller@cityofmustang.orgmailto:JMiller@cityofmustang.org> wrote:
There is an engineer who will remain nameless that apparently advises his customers that a city can't stop them from dividing property and transferring ownership of parcels even if the deed is an unapproved subdivision of land under municipal ordinances and that the only result is that the created parcel is "non-confirming." The engineer apparently believes there is nothing the city can do except deny the owner a building permit or some other use of the property that requires city approval. My opinion is that if property is subdivided without city approval and in violation of city ordinances then the conveyance is an illegal subdivision and void. Has anyone fought this battle and have an opinion, order or research on the issue they would share before I recreate the wheel?
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.
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Look at Title Examination Standard 35.3 (in Title 16).
If a City or Town has lot split requirements and someone does not obtain lot split approval, but records a deed or deeds subdividing the property, then my advice would be not issue permits related to that property for 5 years after the deed is recorded. The property which is subdivided would need to comply with all zoning code requirements-area, frontage, etc. to obtain a lot split.
Of course, after a deed is of record for 5 years, lot split approval is no longer required.
Jeff M. StephensStephens Law Firm4314 S. Quaker AvenueTulsa, OK 74105918.442.6266stephenslawfirm@sbcglobal.net
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On Wednesday, June 22, 2022, 11:02:57 AM CDT, Jon Miller <jmiller@cityofmustang.org> wrote:
Thanks, Tammy. That is helpful information.
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.
From: Tammy Ewing tammy@ewing.legal
Sent: Wednesday, June 22, 2022 10:51 AM
To: Jon Miller JMiller@cityofmustang.org; Matt Love matt.love@gmail.com
Cc: oama (oama@lists.imla.org) oama@lists.imla.org
Subject: RE: [Oama] Re: FAILURE TO FOLLOW MUNICIPAL SUBDIVISION REGULATIONS
I have a few random comments:
It has been a few of years so I could be completely wrong, but I remember the following happening:
19 O.S. 863.10 provides that, under certain circumstances, a recorded deed is deemed invalid. An attorney argued that, pursuant to that statute, he didn’t have to go through a platting or lot split process because the newly created lots would be larger than 5 acres. I told him that statute didn’t apply because Wagoner County does not have within its boundaries a city with a population of 180,000 or more, and, thus, he would have to comply with the City of Broken Arrow’s lot split requirements. I then pointed him to 16 O.S. 27a, which provides the 5-year claw-back period. My interpretation of that provision is that cities can’t do anything about an improperly-done lot split if it has been more than five years since the “splitting” deeds were recorded. The only way I can think of to “claw back” is to file a District Court declaratory or injunctive relief action within 5 years of the improper/illegal recording. You might also look at 11 O.S. 41-106 and 111.
On the flip side, I assisted a landowner in Wagoner County who was denied a building permit because he split his lots without proper approval. It seems to me that, in certain circumstances, denying a building permit (if the improper split occurred within the last 5 years) might get you the result you need.
Depending upon the zoning code and subdivision regulation language re: lot splits for the particular city, I would probably advise a city to allow lot splits of platted land, but have at least an internal policy which limits the number of lots which can be created and the minimum lot size. Jon, I wonder if you can argue that common areas/open spaces/reserves/drainageways aren’t “lots” subject to being split – only subject to replatting. I would expect Staff to object to any lot split application which attempted to circumvent plat language or the statutory process for amending a plat.
Interesting conversation.
From: Jon Miller JMiller@cityofmustang.org
Sent: Tuesday, June 21, 2022 5:34 PM
To: Matt Love matt.love@gmail.com
Cc: oama (oama@lists.imla.org) oama@lists.imla.org
Subject: [Oama] Re: FAILURE TO FOLLOW MUNICIPAL SUBDIVISION REGULATIONS
Matt,
I would think the city has some flexibility on whether or not to require a lot split in your case. My initial thought would be that the tracts described by the separate legal descriptions could be conveyed separately. My only hesitancy would be that it has been a long time since I have reviewed the doctrine of merger and whether that doctrine would require the properties be considered “merged” into a single property. My recollection is that the merger doctrine only applies to property interests in the same tract (for example, if one person obtains a life estate in a property and later acquires the remainder or tail interest, then the two estates may merge by operation of law and the owner now has a fee simple). I don’t recall anything about the merger doctrine that requires merging together of separate properties. I would briefly look at that issue to make certain my recollection is correct.
On my issue, a filed final plat includes several common areas. The engineer says that the HOA wants to convey half of a common area to the owner of an adjacent lot (essentially increasing the size of the owners lot). My concern is that the recorded final plat defines the area as a common area and has restrictions on its face applicable to that common area (home owners association must maintain, all owners of lots in the subdivision are members of the home owners association, etc.). The process for changing the plat to remove property from being a common area and changing it to a private tract would be to amend or partially vacate the plat as to that common area. That process requires notice to all owners of lots in the subdivision and, if approved by the city, would be filed with the county records. Even then, though, there would have to be restrictions placed on the property (limit of no access except though the adjacent tract; resulting property is non-confirming and will not support construction; tract will be an appurtenance to the adjacent lot; etc.). An alternative would be to amend the plat to make that portion of the common area a part of the adjacent lot. The engineer is apparently telling the developer that they don’t have to do that and there is nothing the city can do to stop the developer from simply conveying the tract and filing the deed.
I also have concerns any time an owner of a lot in an existing filed plat wants to do a lot split of that lot. Property owners rely on recorded plats when they buy property. If an owner buys a home in a subdivision made up of large one acre lots, should a developer be allowed to buy 2 large lots and then do lot splits to make 6 smaller lots and build six homes on those lots? There is no notice requirement to do a lot split. However, there would be notice required to vacate a lot from an existing plat before you then replat it. Should a property owner wake up one morning to find that the open subdivision has become a more dense single family subdivision without notice to him or her because a developer was able to buy lots and do lot splits?
I would be interested to know if other cities allow lot splits for property that is already platted, or require the developer to replat or lot split existing platted lots.
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.
From: Matt Love matt.love@gmail.com
Sent: Tuesday, June 21, 2022 4:15 PM
To: Jon Miller JMiller@cityofmustang.org
Cc: oama (oama@lists.imla.org) oama@lists.imla.org
Subject: Re: [Oama] FAILURE TO FOLLOW MUNICIPAL SUBDIVISION REGULATIONS
Jon's question is pretty timely for me as I've got a different, but related question.
I've got a situation where a person came in applying for a lot split / minor subdivision. When we looked into the records, we found that the property in question is listed in the deeds as two separate tracts. The land in question was acquired in bulk in the 1940s (owner acquired a half of a quarter of a quarter of a quarter of a section), then an 85' x 250' tract was conveyed twenty years later by the owner of the large piece of property to her daughter. A decade later the owner conveyed an additional 81' x 250' tract to the daughter. Since then, the property has changed hands 4 times, each time the Warrant Deeds listed what was being conveyed as 2 tracts with 2 different legal descriptions. The area has never been platted. Anything preventing them from selling one of the two tracts without going through the lot split / subdivision process?
To Jon's question, when I first looked at my situation I noted that our ordinances and, the way they are worded, the lot-split / subdivision would only apply to platted land. Frankly, we have a ton of issues in our City with land that has been platted but the lot lines don't match the actual ownership (so you end up with a legal that is basically the west 80 feet of lot 13 and east 20 feet of lot 14 of block 2). That's not in play with my current situation, but I know it's an issue. I'm guessing that the land was platted after some of the original pieces of property were conveyed and that's why the platted lot lines don't match the actual ownership / legal descriptions.
On Tue, Jun 21, 2022 at 3:59 PM Jon Miller JMiller@cityofmustang.org wrote:
There is an engineer who will remain nameless that apparently advises his customers that a city can't stop them from dividing property and transferring ownership of parcels even if the deed is an unapproved subdivision of land under municipal ordinances and that the only result is that the created parcel is "non-confirming." The engineer apparently believes there is nothing the city can do except deny the owner a building permit or some other use of the property that requires city approval. My opinion is that if property is subdivided without city approval and in violation of city ordinances then the conveyance is an illegal subdivision and void. Has anyone fought this battle and have an opinion, order or research on the issue they would share before I recreate the wheel?
Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721
This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege.
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