Prepare legal desc for illegally created parcel

[ekparian]

The long of the short:
I was asked to survey a piece of property on a property with an apn number (no address). I went ahead and conducted my field survey. The grant deed that was supplied to me included land within a second apn number. (This property was made up of two apn numbers). I was told this was a mistake by my client and he would have the title company send me a corrected grant deed.
i went ahead and set the property corners.
upon receiving the corrected grant deed, i realized it was the same description (just added a missing coarse (i already realized the coarse was missing))
I decided to reach out to the tile company to find out what is going on (they were the ones who requested the deed to be recorded). It appears that the transaction went through the title company.
It further appears that the original owner just carved out the land within his second apn and sold it to my client (without a legal description prepared).
Nearest i can tell, there was no parcel map to legally split the property. That would mean that the property was created illegally. Furthermore, if sold as is, there was not an easement, so the property would be landlocked. i informed the title company of this.
The title company responded by saying they are going to keep honoring the sale and not worry about an ingress/egress easement. Then, they said they do not have the man power to prepare the new legal description of the land my client purchased and asked if i would prepare a legal description for them to record in a new grant deed. I said i could and prepared a proposal to the title company for preparation for a plat and legal.
My question is: if i prepare a legal description for an illegally created, landlocked parcel for the title company to record in a grant deed, would any liability fall back on me for preparing the plat and legal description?

As for the corners i set, i can continue with my record of survey and just state that it is a portion of the land described in that certain correction grant deed...

Any advice would be much appreciated.

Thanks,
Drexyl

[hellsangle]

Wow, Drexyl.

Who is your client? Title company? Owner of illegal division?

You know too much. Any work may be construed as aiding and abetting . . . as though an easement "will clear things up".

If your client is owner of Illegal division . . . and has title insurance policy . . . your client might want to file a claim.

On the other hand . . . if the parcels are improved and building permits were issued to the separate Assessor's Parcel Number - that constitutes a Certificate of Compliance. However, I would not do any work until a Certificate of Compliance was recorded. What if it comes back as a "Conditional Certificate of Compliance"?! That could be onerous and then some.

I forgot to mention:

BPC "8762.5 No record of survey of land shown on the latest adopted county assessment roll as a unit or as contiguous units, which shows a division of such land into additional parcels, shall be filed with the county surveyor or with the county recorder, unless there is attached thereto a certificate by the county surveyor if the land lies within an unincorporated area, or a certificate by the city engineer if the land lies within a city, of compliance with the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code, and any applicable local ordinance enacted pursuant thereto. (Amended by Stats. 1975, Ch. 24.)"

Crazy Phil - Surveyor to Recorder

[ekparian]

Phil,

At first my client was the property owner who just purchased the property. Then, last week, the Title Company solicited me to prepare a legal description for the grant deed. i prepared a contract and the title company signed it then sent the retainer. Now, both the property owner and title company are my clients. i have not done any work on preparing the description for the title company so i could technically cancel the contract with them and return their check saying it is a conflict of interest.

The more i think about it, the more concerned i get, hence the reason for this post.

You know too much. Any work may be construed as aiding and abetting . . . as though an easement "will clear things up".

Yes, i do know too much! Yeah, an easement was nothing more than a distracting element to this scenario. What would you do at this point if you were in my shoes? Would you cancel the contract with the title company? Would you pull the corners, cancel all contracts and notify all surrounding land owners of this? (i hesitate doing that because im not sure they if have not been used by any owners). Would you do something further/different than i suggest?

If your client is owner of Illegal division . . . and has title insurance policy . . . your client might want to file a claim.

I am having him come into the office tomorrow to discuss. I could talk to him about a claim.

On the other hand . . . if the parcels are improved and building permits were issued to the separate Assessor's Parcel Number - that constitutes a Certificate of Compliance. However, I would not do any work until a Certificate of Compliance was recorded. What if it comes back as a "Conditional Certificate of Compliance"?! That could be onerous and then some.

To my knowledge, there has not been any building permits. These properties are in the County. The properties are farmland with green houses. I believe there is a house on the apn that i did not survey. They may have had a permit a long time ago, im not sure. I dont think they would qualify for any certificate because there you couldnt prove lot legality. the deed has to be written before June 25, 1969 and if i prepare the deed, then it would be created in 2022. as far as i can tell. these have been a single piece of property (there are maps dating back to the 60's).

I forgot to mention:

BPC "8762.5 No record of survey of land shown on the latest adopted county assessment roll as a unit or as contiguous units, which shows a division of such land into additional parcels, shall be filed with the county surveyor or with the county recorder, unless there is attached thereto a certificate by the county surveyor if the land lies within an unincorporated area, or a certificate by the city engineer if the land lies within a city, of compliance with the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code, and any applicable local ordinance enacted pursuant thereto. (Amended by Stats. 1975, Ch. 24.)"

Crazy Phil - Surveyor to Recorder

Yes, but there is nothing that says i cannot survey a portion of a parcel. so, if i only show the survey one apn and show the property in its (legal) entirety (with some crazy note explaining on the ros) i should be ok, correct?

it seems i got myself into a doozy.

I appreciate your input!
Thanks,
Drexyl

[Jim Frame]

Make sure your E&O policy is paid up.

It looks to me like there are lots of ways for this to go south, at which point someone will be tempted to sue. And if anyone sues anyone, you're going to be invited to the party.

The upside is limited, the downside practically unlimited. I'd walk away if it were me.

[mpallamary]

Apply for a Certificate of Compliance and see what comes back. I hope there is a policy in place and that all communications with the title company are in writing. They are paid to take and assume risks - you are not.

SMA

GOVERNMENT CODE - GOV
TITLE 7. PLANNING AND LAND USE [65000 - 66499.58] ( Heading of Title 7 amended by Stats. 1974, Ch. 1536. )
DIVISION 2. SUBDIVISIONS [66410 - 66499.40] ( Division 2 added by Stats. 1974, Ch. 1536. )
CHAPTER 7. Enforcement and Judicial Review [66499.30 - 66499.38] ( Chapter 7 added by Stats. 1974, Ch. 1536. )

ARTICLE 2. Remedies [66499.32 - 66499.36] ( Article 2 added by Stats. 1974, Ch. 1536. )

66499.35.
(a) Any person owning real property or a vendee of that person pursuant to a contract of sale of the real property may request, and a local agency shall determine, whether the real property complies with the provisions of this division and of local ordinances enacted pursuant to this division. If a local agency determines that the real property complies, the city or the county shall cause a certificate of compliance to be filed for record with the recorder of the county in which the real property is located. The certificate of compliance shall identify the real property and shall state that the division of the real property complies with applicable provisions of this division and of local ordinances enacted pursuant to this division. The local agency may impose a reasonable fee to cover the cost of issuing and recording the certificate of compliance.

(b) If a local agency determines that the real property does not comply with the provisions of this division or of local ordinances enacted pursuant to this division, it shall issue a conditional certificate of compliance. A local agency may, as a condition to granting a conditional certificate of compliance, impose any conditions that would have been applicable to the division of the property at the time the applicant acquired his or her interest therein, and that had been established at that time by this division or local ordinance enacted pursuant to this division, except that where the applicant was the owner of record at the time of the initial violation of the provisions of this division or of the local ordinances who by a grant of the real property created a parcel or parcels in violation of this division or local ordinances enacted pursuant to this division, and the person is the current owner of record of one or more of the parcels which were created as a result of the grant in violation of this division or those local ordinances, then the local agency may impose any conditions that would be applicable to a current division of the property. Upon making the determination and establishing the conditions, the city or county shall cause a conditional certificate of compliance to be filed for record with the recorder of the county in which the real property is located. The certificate shall serve as notice to the property owner or vendee who has applied for the certificate pursuant to this section, a grantee of the property owner, or any subsequent transferee or assignee of the property that the fulfillment and implementation of these conditions shall be required prior to subsequent issuance of a permit or other grant of approval for development of the property.

Compliance with these conditions shall not be required until the time that a permit or other grant of approval for development of the property is issued by the local agency.

(c) A certificate of compliance shall be issued for any real property that has been approved for development pursuant to Section 66499.34.

(d) A recorded final map, parcel map, official map, or an approved certificate of exception shall constitute a certificate of compliance with respect to the parcels of real property described therein.

(e) An official map prepared pursuant to subdivision (b) of Section 66499.52 shall constitute a certificate of compliance with respect to the parcels of real property described therein and may be filed for record, whether or not the parcels are contiguous, so long as the parcels are within the same section or, with the approval of the city engineer or county surveyor, within contiguous sections of land.

(f) (1) Each certificate of compliance or conditional certificate of compliance shall include information the local agency deems necessary, including, but not limited to, all of the following:

(A) Name or names of owners of the parcel.

(B) Assessor parcel number or numbers of the parcel.

(C) The number of parcels for which the certificate of compliance or conditional certificate of compliance is being issued and recorded.

(D) Legal description of the parcel or parcels for which the certificate of compliance or conditional certificate of compliance is being issued and recorded.

(E) A notice stating as follows:

This certificate relates only to issues of compliance or noncompliance with the Subdivision Map Act and local ordinances enacted pursuant thereto. The parcel described herein may be sold, leased, or financed without further compliance with the Subdivision Map Act or any local ordinance enacted pursuant thereto. Development of the parcel may require issuance of a permit or permits, or other grant or grants of approval.

(F) Any conditions to be fulfilled and implemented prior to subsequent issuance of a permit or other grant of approval for development of the property, as specified in the conditional certificate of compliance.

(2) Local agencies may process applications for certificates of compliance or conditional certificates of compliance concurrently and may record a single certificate of compliance or a single conditional certificate of compliance for multiple parcels. Where a single certificate of compliance or conditional certificate of compliance is certifying multiple parcels, each as to compliance with the provisions of this division and with local ordinances enacted pursuant thereto, the single certificate of compliance or conditional certificate of compliance shall clearly identify, and distinguish between, the descriptions of each parcel.

(Amended by Stats. 2002, Ch. 1109, Sec. 8. Effective January 1, 2003.)

[CBarrett]

The long of the short: ....

This transaction can easily end up in court, this means that every professional involved in any part of the process will be involved, and will have to defend themselves.

Lot of people look at these risks with a focus on "I will not be found guilty" and neglect to consider that between 'named in a lawsuit" an "found innocent" is easy $100,000 dollars in fees having to defend yourself.

two - as a land surveyor in California you are supposed to be familiar with subdivision laws. It is you job to alert the client that a part of the process does not appear to have been done correctly, and advise then that moving forward without clearing that up is associated with many risks.
At the minimum, it would be unethical to knowingly continue.

Your first step would be to get more in depth knowledge of the process. Your first obligation with the conflict of interest is to inform both parties of the conflict. Then steps can be taken to either mitigate effects of the conflict, or recuse yourself.

As far as the record of survey, you CAN place a note on the RS that the land survey corresponds to a specific deed and that surveyor makes no claims whether the property has been legally subdivided or not.
For example, in the county of riverside, this is a sufficiently common occurrence that county surveyor has a note where they are making a statement that it is not certain that the property is a legal subdivision. It is merely a boundary of some land described in some deed.
You can find this note in the county map preparation manual: https://rctlma.org/Portals/7/documents/ ... 132617-587

so that would be one precedent on how a municipality deals with possibly illegal parcels on RS's.

Bottom line is, do not aid anyone in avoiding subdivision laws, especially knowingly. As a licensee, you are responsible to know and follow those.

[mpallamary]

Well said. The purpose of the Certificate of Compliance laws is this very reason! Follow the law.

[ekparian]

Michael,
Yes, I always follow the law. I dint realize the law wasn't followed by the title company until now, hence the reason for the post. I have canceled my contract with the title company and my client will be at my office soon to discuss next steps.
Thank you all for your time and expertise. I will tiptoe backwards carefully.

[mpallamary]

Good luck! I, of course wasn't implying you wouldn't follow the law. I have the complete legislative history of the adoption of the COC laws. it is very interesting!

[ekparian]

As far as the record of survey, you CAN place a note on the RS that the land survey corresponds to a specific deed and that surveyor makes no claims whether the property has been legally subdivided or not.
For example, in the county of riverside, this is a sufficiently common occurrence that county surveyor has a note where they are making a statement that it is not certain that the property is a legal subdivision. It is merely a boundary of some land described in some deed.
You can find this note in the county map preparation manual: https://rctlma.org/Portals/7/documents/ ... 132617-587

so that would be one precedent on how a municipality deals with possibly illegal parcels on RS's.

CBerrett,
That is very helpful! I think I will use that note.

Michael, it must've been something to watch those develope over time. I sent your quote above citing the sma code and canceled my contract in writing with the title company.

I informed the client today and he was not happy, obviously... it turns out he hired a different company to help him through building site approval. I called them informed them of my findings. They are ordering a chain of title and taking over from there...
Agian, I appreciate everyone's time, advice and direction.
Thanks,
Drexyl

[mpallamary]

Good luck buddy! Stay well. Some 30 to 40 years ago, we (CLSA members) used to more proactive in this area.