SMA Question - AND Assistance

[rpost]

Suppose a resubdivision was recorded. According to SMA 66499.201/2 a resubdivision wipes out the original subdivision and "Any public streets or public easements to be left in effect after the resubdivision shall be adequately delineated on the map". By not showing the streets or easements they are intended to be vacated.

The SMA goes on to state "the filing of the map.........shall also constitute abandonment of all public streets and public easements not shown on the map, provided that a written notation of each abandonment is listed by reference...... and certified to on the map by the clerk".

Here is the issue, the map does not show the old streets and easements and it was intended that they all be vacated, however, after the map recorded, it was discovered that none of the streets and easements were listed and were therefore not certified by the clerk.

My question is how to resolve the issue.

1. Certificate of Correction. This would be the easiest, however, SMA 66469(f) does not allow a Cert. of Correction if it alters "any right, title or interest." Does adding language regarding the abandonments alter title? Could it be argued that it was intended that these items be abandoned and that we are just adding some language to clear things up?

2. Record a separate Vacation Document with the City. This would take way more time and City Fees to do. The City would require letters from utility companies, legals, plats and plan check.

Any other ideas?

[William Magee]

Question is when the re-division occurred and what the SMA language was at that date? Was 66499.20-1/2 the language in effect at that date?
Also it would be worth knowing other details such as if the original subdivision was created prior to 1926 but was retained under one ownership. Details such as those and the certificates on both the original map and re-division map may weigh in on whether a cloud of title actually exists. Would the re-division even be possible with out the old streets and easements removed?
I see a few paths that I might have the client pursue, but would first need to delve into all the details of the situation before going down any one path.

[rpost]

1. The resubdivision recorded a month or two ago. The original subdivision was done in 1981 and has changed ownership. The intent was for all streets and easements within the subdivision to be vacated and the newly recorded ones put in place. I attached the old and new map. You will see that it is my map, so I am certainly concerned about resolving the issue.

History: I inherited this map from a RCE that passed away. I was doing the staking. The map was in its 6th plan check. Upon taking responsible charge, I performed a field check and found 22 monuments that were marked as searched not found. This changed everything, including the BOB. I spent so much time putting the map procedure together, it looks like I missed listing the old streets and easements.

[William Magee]

Thanks for the clarification Ryan,
First, simply for general housekeeping, the pertinent section is 66434(g) not 66499.201/2. Not that it really matters as the language is basically the same.
You are right in that C.O.C. (and map amendments) can not alter any rights or title interests. While it may seem obvious that the intent was to abandon those rights, 66434(g) is pretty clear and unambiguous that the listing of abandonments and clerk's certificate are necessary to effectuate the abandonment.
The SMA does not provide any remedy for alteration of maps when the needed alterations affect rights or title interests other than through the Lot Line Adjustment process, or by re-recording (basically re-subdividing) the map.
The city might work with you to re-record the map to make this correction along with waiver of fees, but I don't think they can get around the requirements for the tentative map process.
In short, it would seem that to keep to the letter of the law and to avoid what some might consider a cloud of title, having the city perform an abandonment proceeding would be the best and most economical route. Hopefully they will recognize missing the required cert was something they should have caught and will waive the fees.

[TIB]

Was this issue an item on any of the first 6 plan checks? After 6 tries, either the deceased RCE or the City (plan checker), or both, is an idot. 2 bad that mistakes by others cost you so much additional problems simply cuz you wanna record a correct map. 22 not fd mon? WOW! that's a lot.e the orig. survey person was also an idot. Sounds like your staking crew did a good job despite all the errors by other idots. The city (and clerk) should allow this to be fixed by COC. It isn't altering any rights, it's adding a list of data that was not on map by mistake.
good luck

[William Magee]

I also attempted to justify to myself that pursuing a C.O.C. is the right thing. After all, one of my area's previous county surveyors used to let C.O.C.'s address a number of corrections that affected title and rights. If an agency surveyor lets it record it must be good as gold right?
Then I placed my feet back on the ground and considered what a ranching family is going through in regards to a LLA I'm helping them with. The ranch was formed some 40 years back through the combination of a variety of parcels. During the formation of the ranch the lands went through a series of events including forclosure, judicial partition and a separate parcel map to carve out one family member's separate interests from the rest. You would think that parcel map would have set in stone the legal status of the ranch parcel due to its merger and redivision.
The ranch lands were then held by the family for some 40 years. The patriarch of the family who put together the deals and was the sole owner passed on. An LLC was formed by the heirs.
During the LLA process I had the family procure a title report as part of the process leading to the necessary parcel guarantee letter to close the deal. The title company poured through all the parcel creation and transfer proceedings that happened many years back and came up with a laundry list of things that weren't done according to Hoyle. The family now is having to hire attorneys to figure out how to correct the title documents ex post facto. It hasn't been easy and part of the trouble is finding attorneys competent in title transfer.
On one hand it is refreshing to see a title company who really understands clean chain of title. On the other it is unfortunately very frustrating for the ranch family and expensive to boot. Don't let a future title review for one of the lots in the subdivision you created suddenly become a rainstorm during your parade.
I am quite certain a C.O.C. cannot be used to alter rights. I am also quite certain that your map was done under the authority of 66434(g) which clearly denotes that the abandonment does not occur unless it is noted and certified to on the map. Those rights still exist even though the intent was to destroy them and even though it would seem obvious to anyone of that intent. An abandonment proceeding, re-division, or action to quiet title would guarantee the removal of those rights. A C.O.C. does not.
I suggest you talk this over with the title officer of the company that issued the letter of parcel guarantee.

[David Kendall]

Sound advice Magee.

rpost, can you file an amended map identical to the first with an extra page that states the abandonment and includes a note of no change to the rest of the map (along with new date and signatures)? I've seen those from the 1960s and 70s, one even amended 3 times because they kept leaving stuff off, or the acreage was too low on a lot or two, or some other bureaucratic hurdle.

It seems it hopefully would not require extensive rechecking and a nominal filing fee with the recorder under the circumstances

[William Magee]

David,
Read 66469 of the SMA. Amending maps are under the same limitations as C.O.C.s. No changes to rights or title. If one wants to change rights or title by map, one would have to file a new subdivision map triggering the requirement to file for a tentative map. This of course applies to final maps. Parcel maps are a different story.

[dmi]

to be sure that the public easements are in fact removed, perhaps a street vacation under the
Streets and Highways code is in order.

[rpost]

I agree with the vacation processing. However, the City wants thousands of dollars and 12 weeks to process it. I am trying to get something done sooner and cheaper. Essentially, the City is quite happy to point their finger at me and hold me accountable for not including the statement in the clerk signature block. I should have caught it, but given the circumstances, I think some of the responsibility should be given to the City. Although, this may not be the easiest point to argue.

The buyer of the property is pushing hard to get this done ASAP, so I was thinking the COC would speed things up a bit. Maybe it is best to bite the bullet and go with the vacation. Does anyone think it is worth arguing to waive the fees or expedite the process, since the City has some responsibility?

[dmi]

If they did not follow the proper process, then how do you know what their intention was? What if a person or entity wants to claim a private easement right over the abandoned public right of way? You are protecting you client and the public by making sure the vacation process was properly executed. I do not think the City will take a haircut on fees .

[Peter Ehlert]

I agree with the vacation processing. However, the City wants thousands of dollars and 12 weeks to process it. I am trying to get something done sooner and cheaper. Essentially, the City is quite happy to point their finger at me and hold me accountable for not including the statement in the clerk signature block. I should have caught it, but given the circumstances, I think some of the responsibility should be given to the City. Although, this may not be the easiest point to argue.

The buyer of the property is pushing hard to get this done ASAP, so I was thinking the COC would speed things up a bit. Maybe it is best to bite the bullet and go with the vacation. Does anyone think it is worth arguing to waive the fees or expedite the process, since the City has some responsibility?

Sure, argue the point. Somebody at the city dropped the ball... that is if you can show some sort of paper trail of applications or processing that mentioned your intent to extinguish the easements.
however you would be pointing a finger at someone ( it may make enemies), and actually end up taking more time and money.

(bite the bullet, sorry for your pain)

[rpost]

Yup, I hear ya. And by paper trail, you mean the one set of PDF redlines for the 6th check that I was provided and looks like a bomb went off? I may ask in a very nice sort of way if they can cut us some slack. Thanks all for your suggestions.

[Wanderthewest]

If the local agencies are in agreement with the abandonment and vacations, which it appear that they are/were, submit a Cert of Corr. with the abandonments listed

66469 (g) To correct any other type of map error or omission as approved by the county surveyor or city engineer that does not affect any property right, including, but not limited to, lot numbers, acreage, street names, and identification of adjacent record maps.

As used in this section, “error” does not include changes in courses or distances from which an error is not ascertainable from the data shown on the final or parcel map.

BUT

add certification language into your Cert of Corr. for the Clerk, et al

If the intent existed to be rid of the encumbrances of the original subdivision, where is there a violation?

[Warren Smith]

It's interesting that if the conditions of approval of the tentative map included the abandonment of the existing rights of way in favor of the adopted alignment, the error was in stating that the final map was in conformance with the approved tentative map. The statement was signed by the City Engineer (an LS?). He would likely be signing the Certificate of Correction as well.

As to affecting property rights, leaving the final map as filed has much more of an adverse effect on those property rights. One has to wonder what entity would have standing to challenge the existence of the underlying easements.

[edit] I see that the caption for the recent final map labels it as being a subdivision not just of the underlying lots, but of the named streets within that subdivision. It would have been cleaner to have entitled it a Merger and Resubdivision. With as many eyes as were on this map, the City Clerk's statement would likely have been included - not to mention the proper "Whereas" and "Now Therefore" enabling clauses in the approving Resolution.

[Raymond Mathe]

The City of Oceanside’s Subdivision Ordinance Sec. 1200(H) has language that provides authorization to modify the map by Certificate of Correction or Amended Map consistent with Section 66472.1 of the SMA. It is still a bit of a stretch but I’d say it is worth running this option by the city.

http://www.ci.oceanside.ca.us/civicax/f ... obid=23000

[subman]

If the Tentative Map has not expired, and the subdivider is still holding title; what is to prevent the subdivider from requesting City concurrence to file multiple final maps and record a second phase (identical to the first) over the entire map which corrects the abandonment note and City clerk certificate.

Am I missing anything?

[dedkad]

If the street abandonments were clearly shown on the tentative map and/or clearly noted in the staff reports approving the tentative map or final map, then I would say that you are not altering any right, title, or interest and push for the COC.

[mpallamary]

Please note that there are two phases for the filing of a map. The first phase is the discretionary phase wherein the intent and conditions are adopted. The approved conditions reflect the intent. It is discretionary because conditions and exactions are negotiated. Once the negotiations are concluded, the map goes on automatic pilot.

The omission of the documentation required to satisfy the conditions and is a simple mistake and can be corrected with a Certificate. The filing of the map and the associated documentation needed to effectuate the condition(s) is a ministerial chore and it is not discretionary.

See the attached.

Good luck!