Public agency requesting perfecting deeds prior to LLA recording

[goodgps]

Greetings,

I have two public agencies that are requesting Perfecting Deeds for lot line adjustment PRIOR to the Certificate being recorded. There is a lot of resistance from deed preparers who aren't buying in on leaving recording dates and document numbers blank. ( for the PA to fill in)
Some Title companies or Paralegals (attorneys) will prepare them, whilst others simply refuse.

Have these public agencies gone beyond the law ? How are you other professionals addressing this ?
Very concerned here PLUS I am wasting a lot of time as a middle person between Owners / Title etc, and Public agencies.

Bye the way, one P.A. changed the rules AFTER the LLA was approved

signed (not so) Good

[DWoolley]

How else can the agency ensure the deeds get recorded?

I find to many recorded lot line adjustments that do not have deeds recorded. Without the deeds the title is jacked and gives the owners all kinds of issues in the future.

I also request the applicant to provide modified deeds of trust before we record the LLA. Keep in mind, the lender loaned money on a property with a different legal description. If we do not modify the deeds of trust the lender could undo the LLA. Not getting modified deeds of trust creates a situation that is ripe for fraud. Imagine Neighbor A paying $100k for 20 feet of the side yard from Neighbor B. The LLA is recorded, and Neighbor A builds a garage into the side yard. Neighbor B pockets the money and moves because he was in arrears and about to go into foreclosure. Now what happens?

Yes, the agency must demand the grant deeds, not quit claim deeds, and modified deeds of trust. Anything less is irresponsible and dare I say, negligent.

Does anyone see it differently?

Next question, I have been seeing to many LLAs of LLAs. Most recently, the applicant is trying to merge 10 lots into one. Their solution was to perform LLAs 4 into 1, 4 into 1 and 4 into 1. Clearly, this is subverting the Subdivision Map Act - usually to avoid CEQA, tentative map conditioning, DRE review or whatever. In one jurisdiction, we do not allow a LLA on an LLA unless three years have passed. This is another form of 4x4s. Am I on crazy pills?

DWoolley

[Warren Smith]

I don't think that this procedure is prohibited by the Subdivision Map Act. As an exemption to the filing of a tentative and final (or parcel) map, SMA section 66412 (d) authorizes local agencies to adopt an ordinance specifying procedure. So, there are 500 different procedures. The Map Act does require that the lot line adjustment be reflected in a deed, which shall be recorded - that's it.

[DWoolley]

I had a LLA being executed to resolve an encroachment of approximately 4.0'. The parties agreed on the new line location and a dollar amount. The party receiving the money, the person giving up the land, asked the lender for a modified deed the trust. The lender made the modified deed of trust contingent upon the owner agreeing to pay the lender a portion of the money in the transaction. The owner was incensed. It made sense to me.

You may wish to advise the client to lessen the shock of writing the check to the bank.

DWoolley

[Ian Wilson]

“In one jurisdiction, we do not allow a LLA on an LLA unless three years have passed. This is another form of 4x4s.”

I’m going to disagree. This is not 4x4’ing.

The purpose of the SMA is to promote the orderly development of property. The SMA gives powers to the Local Jurisdiction (LJ) to review the plans before agreeing to the subdivision. LJ has the authority to require infrastructure construction an upgrades to mitigate the affect of the subdivision on the properties.

Although there are rare cases where the lots being adjusted were created by deeds prior to 1972 (I honestly can’t remember one such case over the past 35 years and hundreds of LLAs), in most cases, LJ has already taken a bite of the apple. Not so in 4x4’ing.

The LLA remains one of the most useful tools in the arsenal to “correct” the errors in the documentation when it comes to boundaries.

The deficiency is and always has been two fold.

First, the transfer of a parcel to oneself in not lawful [CC §1039]. This makes it difficult to prefect the LLA between parcels owned by the same entity.

Second, there is no requirement, other than informed ordinances, to include to 800 pound gorilla in the room – the trustee or beneficiary of any mortgage on the property. The lender is going to foreclose on what is described in the trust deed.

These can be solved relatively easily. First, require Certificates of Compliance be recorded for each of the adjusted parcels. Second, require an application that includes a signature of acknowledgement from the trustees / beneficiaries involved, if any. Onerous to the current owners? No more so that the mess created by the mortgage holder finding out after the fact and calling in the entire loan.


If anyone can share with me any of the thinking and documentation around the drafting of SM §66412(d) back when it was first introduced, I would very much appreciate it. Why was the phrase “… lot line adjustment shall be reflected in a deed, which shall be recorded…” inserted? What was the thinking and did anyone consider the case where a single owner adjusted the parcels?

[DWoolley]

...
First, the transfer of a parcel to oneself in not lawful [CC §1039]. This makes it difficult to prefect the LLA between parcels owned by the same entity.
...

Civil Code 1039 does not say it is unlawful to transfer property to oneself.

Additionally, folks move property to themselves on the regular. Individual to family trust, adding or removing spouses, corrective deeds, etc. In the instance of a LLA, the property is being reconfigured and land is reconveyed. What am I misunderstanding?

DWoolley

[LS_8750]

What chu talkin bout Willis?

[Ian Wilson]

Individual to family trust, adding or removing spouses, corrective deeds...

All moving property from one entity (or combination of entities) to another entity.

[DWoolley]

Individual to family trust, adding or removing spouses, corrective deeds...

All moving property from one entity (or combination of entities) to another entity.

To be clear, if a client owns lot 50 and executes a lot line adjustment with the neighboring lot 51 he is prevented from conveying LLA lot 1 to himself?

Following the same logic, the deed would be limited to a grant of that portion of lot 50 to the neighbor?

What would the modified deed of trust reflect? Lot 50 except therefrom...?

A corrective deed corrects the legal description, same owner. How does that get into the record?

DWoolley

[Warren Smith]

It may require using a straw man for the purpose. For a brief moment in the 80s (between recording successive deeds), I was the owner of several high rise condominium buildings on Wilshire Boulevard.

[Ian Wilson]

I'm doing a bit more research on the subject.

There's an interesting analysis of the subject in Riddle v. Harmon [102 Cal.App.3d 524 (Cal. Ct. App. 1980)]

Riddle v. Harmon.pdf

[Mike Mueller]

Napa County requires all LLAs to go through a strawman. I have always assumed it was just to redo the easements cleanly, but perhaps there is more to that rule.

In Sonoma County it was only the parcels of transfer that were recorded up until about 3-6 months ago. Not exactly sure what changed, or who changed the policy... Now we have to provide the resultant descriptions. Which are still just Pre LotA excepting Xfer Parcel and Pre LotB together with Xfer Parcel.

LLA on LLA? Dave you might be on crazy pills? Using byzantine processes to fulfill a clients dream is just becoming a sad reality. Its only crazy because it has been made so complicated.

Mikey Mueller, PLS 9076
Sonoma County

[DWoolley]

...
LLA on LLA? Dave you might be on crazy pills? Using byzantine processes to fulfill a clients dream is just becoming a sad reality. Its only crazy because it has been made so complicated.

Mikey Mueller, PLS 9076
Sonoma County

Specifically, does anyone think the California Legislature thought when they limited LLAs to four lots their intent was for professionals to circumvent the mechanics through successive lot line adjustments to merge lots (or reconfigure subdivisions)? I do not think the Legislature devised a mechanism to burden owners, agencies, with a bureaucratic process circumventing the law. Nobody is being clever by circumventing the subdivision process.

Subdivision Map Act section 66451.10 is dedicated to the merger process. The merger process is subject to specific conditions and a hearing. Additionally, parcel maps are the intended legal vehicle for merging more than four lots. Agencies that wish to expedite the process and save the public cost can waive the tentative parcel map. A parcel map is far superior to successive lot line adjustments and better protects the public by allowing a development review.

Stating the obvious, it is important to understand the applicants project before allowing any mergers. For example, it is expressly prohibited to create condominiums on a single parcel without a subdivision map. Preposterous? Nope, had an applicant attempt it recently.

There is an appellate case that states LLAs of LLAs are allowed in limited circumstances and provides a specific process to be followed. Sierra Club v. Napa County Board of Supervisors (2012). This case does not condone the process without consideration. In my reading of the case, I do not see it applying to most circumstances. Besides, it is not advantages for the owner to follow the prescribed procedure due to the time sequencing of the process.

The California Attorney General, referencing the reading of the SMA, said it best when reviewing the tolerances of the Act.

The California Attorney General wrote:

“The reasoning of our prior opinion applies to the question presented here. The purposes of the Map Act in securing orderly community development [citation] would be seriously undermined if a subdivider could avoid tentative and final mapping obligations by the successive acquisition, quartering, and sale of contiguous parcels. The effect would be to allow the creation of subdivisions, through phased quartering and disposition, without adequate consideration of subdivision standards and broader concerns for community development. That the subdivider sells off his quartered parcels before acquiring another for further division should not avoid the Legislature’s concern for greater scrutiny of larger developments. We have previously expressed our view, supported by the courts, that the provisions of the Act are to be “liberally construed to require the highest possible standards for orderly community development” [citation] in order “to prevent circumvention of its several goals and purposes.” [citation]

I welcome any information or opinions to the contrary that are supported with citations and/or ordinances.

To the right, the high road and to the left, Tryin' Catch Me Ridin' Dirty. How many left turns are we willing to take to save millionaire's money or to please a client that is likely underpaying for professional services.

DWoolley

[LS_8750]

What is to stop "non-compliant" LLAs being recorded without some sort of authorizing instrument on the front end? I've seen this happen. Title companies aren't that sharp... And of course I've seen the authorizing document recorded but the LLA never being perfected with recorded deeds of transfer...... Seems like bookending the LLA process with agency recordations would clean things up a bit.....

[marchenko]

Map Act does not specify type of deed. In the past I remember quitclaims, then the title companies thought up different language. Map Act states reflected so someone was thinking on how to get it into title.


Circumventing something you are exempt from is not circumventing:

find a way around (an obstacle)

overcome (a problem or difficulty), typically in a clever and surreptitious way

deceive; outwit:

[polaris]

Monterey County requires a deed to be recorded by the owner(s) describing the entire adjusted parcel (if one owner or their interest if multiple). There is specific language required to be place on the first page of the deed indicating that this is part of the planning process.

It says:

"Whereas, the purpose of this deed is to adjust the parcel boundaries in conformance to the lot line adjustment approved by the County of Monterey, PLN23000000. This deed is being recorded pursuant to S. 66413(d) of the California Government Code and shall be deemed to reconfigure the subject parcels in conformance to said approved lot line adjustment. Any configuration of said subject parcels that existed prior to recordation of this deed shall no longer be valid and shall not be used for the purpose of sale, lease or financing, whether immediate or future."

Proof of recordation must be presented to the County prior to recordation of the Certificates of Compliance by the County, which client pays for.

The client's attorney prepares the deed and the owners sign and record it. Or I record it after they send it to me.

This way the title interest is clear and the COC bestows legality. Seems clean and simple to me.

The old process here of recording only the transfer parcels seems rather confusing to title companies and owners. It appears that a new parcel is being created.