California Surveyors Forums

I was just asked a stupid question that I'm too stupid to answer:

"Why does a lot created on a map need to have access to a street?"

My reaction was, "duh its in the map act" but then the map act failed me cus it does not expressly say that the lots need to have access (there are references to necessary access in the parcel map section but that almost implies its an exception to the rule). Then I consulted a few standard texts like brown, fail again! I consulted a colleague and came up with "look this is just accepted fact..." and im not ready to use that argument.

The context here is its a lettered lot for open space...so its not like they are creating a buildable lot with no access but in my mind this parcel needs to have legal access (again maybe im wrong) and im no lawyer but my guess is even if it didn't give it access on the map and easement by necessity would exist essentially wherever its most convenient to access the property which might affect buildable lots.

im sure someone smarter and more learned can point me right to the case law or reference...my brain is just not workin.

I don't know that an open space lot, not intended to be a lot useable for any other purpose is required to have street access. Although I would think that there would have to be some manner of access easement for maintenance and fire department access.

I don't recall that there is anything specific in State code. If so, it may be in the Civil Code or perhaps the Streets & Highways Code. I do believe that a requirement for access to landlocked parcels is addressed as an easement by necessity and is a matter of common (case) law that depends on particular circumstances and is applied on a case-by-case basis.

I'm sure that someone smarter than both of us will be able to provide a better answer.

Required access to a public street (via private access if necessary) is usually covered by a local agency's Subdivision Ordinance. It is tied to emergency vehicle access for the most part, and will be a condition of approval for a tentative map.

In the case of an open space lot, the requirement for open space would have been driven by a specific plan for the subdivision. SMA sections 66478.1 through 66482 address some of these requirements, and 66479 specifically speaks to parks, recreational facilities and public uses. If the open space lot is for the benefit of the adjacent homeowners, there should be CC&Rs that cover that. Does the tentative map indicate a means of access to the open space lot? You could check the minutes of the Planning Commission for direction, or ask Planning staff.

That's all I got for now.

Myself, I think I would start by researching the intended purpose of the open space such as those definitions found in Article 10.5 "Open Space Lands" of the Gov't Code (Sections 65560(a)(1-6). Many times open space lands aren't intended for public or a particular use, but rather as a preservation tool.

Most, if not all, of the open space reservations for preservation purposes I have encountered have been easements or encumbrances in keeping with the empowerments granted agencies in the Open Space Easement Act of 1974 (Gov't Code 51070-51097). In these cases the owners maintain sole use of the areas.

Is there a chance the intent was simply to restrict use but was mistakenly pursued as a taking in fee as opposed to a restrictive easement?

what no one seems to get is a proposed use of the parcel is irrelevant because that is something that can change. When we create parcels, if they have no access to a public street or highway, we are creating a cloud on title that could cost the owner of that parcel (agency) and adjacent parcels (homeowners) tons of money in legal costs were it ever necessary to have access which is not out of the question. and in my mind as the people preparing and processing the maps are liable if we knowingly create a land locked parcel. its so simple...provide and easement on the map. but again I have no backup to my logical argument.

FYI TTM Shows no easement
CCRs are not complete for no reference to access
Ordinance is silent on necessity of easements.

A parcel designated as an open space parcel does is not easily changed at some later date. From a practical perspective, you are correct, it would make sense to provide for access to the open space with an easement. More likely reasons would be as I mentioned earlier, for maintenance and fire department access. But there could be other reasons as well.

Your question wasn't whether it made sense, so we each assumed that you were asking about legal requirements. I gave you the start of an answer, and then someone smarter than both of us gave you a more specific answer, and then someone sometimes smarter than me (sorry Jeff, too much pride to admit anything more than that), gave you still more specifics.

But since you seem to have it all figured out, it seems that maybe you're smarter than all of us, all the legislatures past and present, and the authors of some of our standard texts.

If you want further input, please clarify. Are you asking:
- if there is a requirement for access?
- if there is some kind of automatic recognition of a right of access without the need to have a court say so for the particular instance?
- if it makes sense that the subdivider should have provided for access?
- or something else entirely?

Murphy v. Burch (2007) 156 Cal. App 4th 1434.
Dealt with landlocked parcels and easements by necessity.
Don't know if it applies to your scenario.

Basically, you cannot have a landlocked parcel without making a criminal out of the parcel owner (he/she would need to trespass in order to access his/her parcel). The justice system has long recognized that.

CIVIL CODE - 3522. One who grants a thing is presumed to grant also whatever is essential to its use.
Therefore, for the map to be technically correct, it should show where that essential use is to take place.

Questions to consider: If the parcel is declared to be for the purpose of Open Space, who does title lie with? Usually, unless it is granted to the local government, it is held in common among the lot owners, isn't it?

If the parcel is declared for the purpose of Open Space, but not Recreational Open Space, is there any particular use anticipated use associated with that, and if no use, is there a necessity for the "owner" to be able to access the parcel?

If title is held in common among the lot owners and the open space areas are all adjacent to various lots, is other access required for a parcel with no use other than to leave it in a natural condition required?


Thanks for the case reference and the reference to CC 3522.

LS 8750, that's an interesting one. im not sure it applies to my situation but its definitely is some backup. thanks

Marchenko: at first I was dancing thinking you found it. but as I read it, this is essentially saying that its assumed that you grant the easement as well if its necessary.

Epage, clearly I think i'm smarter than everyone which is why I came here to ask a question... (sarcasm implied). I think you misinterpreted my response as directed towards your answers which were not quite what I was looking for but still appreciated.

The irony is after I explained the issues I had with showing the lots and land locked on the map, everyone backed down because (quoting them) "its in the map act". I just shook my head and chalked it up as a win and verification that no one knows or cares what we do anymore as surveyors.

One other odd scenario did come up. one of the land locked parcels its basically to transfer property to an adjacent owner who is encroaching. obviously the intent is for that parcel to get access to a public street through the adjacent parcel...but until its transferred...or what if it doesn't get transferred. I know these are probably far fetched hypotheticals but ive seen weirder stuff happen.

My first advice would be to look at the definition of "Design" in 66418 the SMA which addresses access. This leads us by reference to 66473.5 which requires consistency with the local agencies General Plan. In general language, design, specifically access in this thread is left up to the local agency to identify the standards. For our local ordinance in LA County, each lot requires street frontage unless specifically waived by the Planning Commission or the Board of Supervisors under specific conditions

In order for real property to be sold for residential use, it has to comport with real estate regulations that serve as an adjunct to the Subdivision Map Act; the Subdivided Lands Act. This is an initial aspect of California Real Estate law and an area many surveyors do not deal with or fully understand. It is an area that should be reviewed and understood. As an example:

**************************************

COMPLIANCE WITH THE SUBDIVIDED LANDS LAW

The Subdivided Lands Law is designed to protect purchasers from misrepresentation, deceit and fraud in subdivision sales. This is accomplished in two ways: by making it illegal to commence sales until DRE determines that the offering meets certain affirmative standards and issues a public report; and by disclosing in the public report pertinent facts about the property and the terms of the offering.

Affirmative Standards

Affirmative standards deal with two major aspects of the proposed subdivision offering:

1. suitability for intended use; and

2. fair dealing regarding the sale or lease of the offering.

The Subdivided Lands Law requires that the Commissioner deny issuance of a public report if the offering is
not suitable for the use proposed by the subdivider. The suitability test is, of course, paramount in residential
offerings. These must include vehicular access, a potable water source, available utilities, offsite improvements,
etc.

To insure fair dealing and receipt of the subdivision interest for which the purchaser has bargained, the affirmative standards include: the security of buyer’s deposit money; satisfactory arrangements to clear mechanic’s liens; release of the interest from any blanket encumbrance (mortgage lien); and conveyance of proper title.

*************************************************************************


SEE ALSO:

http://www.dre.ca.gov/files/pdf/relaw/2018/relaw.pdf

http://www.dre.ca.gov/files/pdf/relaw/2018/regs.pdf

http://www.dre.ca.gov/files/pdf/refbook/ref17.pdf

pezdork wrote: FYI TTM Shows no easement
CCRs are not complete for no reference to access
Ordinance is silent on necessity of easements.

Did the TTM Conditions of Approval say anything about access for the OS lot?

Who will own the OS lot? If it's not the HOA, then the CC&R's probably won't address it. If the lot will be dedicated in fee to the agency, then the agency is the one you should be asking if they want access. If it will be owned by the HOA, there is often language in the CC&R's allowing access for the HOA on lots in order for the HOA to do maintenance.

Requirement for access might be in the land use regulations of the agency, not necessarily in the subdivision regulations.

pezdork wrote:
One other odd scenario did come up. one of the land locked parcels its basically to transfer property to an adjacent owner who is encroaching. obviously the intent is for that parcel to get access to a public street through the adjacent parcel...but until its transferred...or what if it doesn't get transferred. I know these are probably far fetched hypotheticals but ive seen weirder stuff happen.

This could be handled by designating the newly created lot as non-buildable or by requiring that a merger with the adjacent lot record concurrently with the map.