Condo Question

[JMS8070]

I have a client that owns a piece of property which is split by a 35’ strip belonging to his neighbor. When the strip was excepted from the land, there was an easement granted allowing for buildings or structures 10’ above the sidewalk (this all took place in 1908). Today, our client has a building which spans that easement and they are interested in creating residential condos. (see attached sketch)

It is my opinion that they cannot have condos in the portion of the building which is within the easement but they could in the rest of the building (you cannot subdivide what you do not own); however, his attorney claims that since the easement is for a structure, they can subdivide their right and sell condos in this area.

We do a lot of condos but I have never heard of subdividing a Right, does anyone have experience in this?

[Anthony Maffia]

Nope, that's a weird one. Please tell us how it works out.

I understand condo law as an enabling law, that something is allowed only if someone wrote it into law, e.g. the Ed Code. This is opposed to prohibiting laws which limit what you are otherwise free to do, prohibit certain things, e.g. criminal code. If the attorney can point to where in the law this is allowed, great and we learn a new trick.

Other options I see are to include the neighbor in the subdivision, or a LLA and grant an easement back. There are tax implications.

[subman]

Have the adjacent owner sign the final/parcel map along with your client. Identify both separate ownerships as one parcel on the final/parcel map where parcel 1 is owned in common by all owners of airspace units (i.e. HOA). Show balance of adjacent owners property as remainder parcel. Record a separate instrument concurrently with the final/parcel map granting an easement for the sidewalk to the adjacent property owner. Adjacent owner quitclaims his ownership of the final/parcel map to your client. Let the attorney prepare the agreement between these parties stipulating these terms and the financial consideration for the fee title exchange for the easement.

[land butcher]

Vertical Subdivision. One was done in LA over a public sidewalk.

[JMS8070]

The adjacent owner already has entitlements over their property from 2006 and they probably will not risk having their entitlements reviewed again.

We are suggesting doing a LLA (thanks NKB Consulting) and giving a 3D easement for the walkway to the neighbor but because client's attorney believes you can subdivide rights, they aren't going for it.

Does anyone know for sure that you can or cannot subdivide a Right and sell off portions of it?

Thanks for the responses

[land butcher]

Have the attorney show president.

[JoeC]

So it looks like you would be doing a two parcel condo map. Are you creating more than four condos? If so you may need to do a Final Map. I don’t think you can split what you don’t own.

So why not show the condo lots in the CCR’s and have portion of the condo(s) in the easement as an easement. For example “Unit ?? of Parcel Map ??, Book ??, Page ??.......... TOGETHER WITH that portion situated in a portion of the 1908 easement described as follows: (or something like that)

This way you’re not dividing land your client doesn’t own but granting an existing easement to another party for the full use and benefit of the intent of that easement. Of course it depends on what the easement says. Please keep in mind you’re creating the parcel map and the attorney should be creating the CCR’s.

[dedkad]

I would place a call to the title company to see if they are willing to insure title on those condo units, and also a call to a bank to see if they would be willing to loan on that situation. I don't see how a bank would be willing to make a loan. How can they foreclose on it?