Can a Judge Create a New Legal Parcel

[Robert Martin]

I'm involved in a court case and I need to research how(if) a judge can create a new legal parcel. Or what needs to happen if a judge does order the creation of a parcel.

I remember it this way: if a judge decrees that a parcel is created, that only means the owners must go along with it, but the local applicable laws still must be met, so a Parcel Map still must be filed, or possibly a Boundary Line Adjustment may be able to create the desired parcel. I found this with a quick google search:

California Code, Code of Civil Procedure - CCP § 872.040:
Nothing in this title excuses compliance with any applicable laws, regulations, or ordinances governing the division, sale, or transfer of property.

I would appreciate any insight you may have to offer. Also, any quick reads that you can point me towards would be appreciated. There is a chance this issue comes up while I'm on the stand, and I want to make sure I'm well versed.

Thanks,

[CBarrett]

A judge can make a decision on a parcel line location if that location was in dispute. You may still need a perfecting deeds, unless the judgement somehow includes legal description and perfects title. That parcel may or may not be in compliance with subdivision map act and local ordinances. A certificate of compliance may be needed to make it a buildable parcel.

[steffan]

CODE OF CIVIL PROCEDURE - CCP
PART 2. OF CIVIL ACTIONS [307 - 1062.20] ( Part 2 enacted 1872. )
TITLE 10.5. PARTITION OF REAL AND PERSONAL PROPERTY [872.010 - 874.323] ( Title 10.5 added by Stats. 1976, Ch. 73. )

CHAPTER 5. Division of the Property [873.210 - 873.290] ( Chapter 5 added by Stats. 1976, Ch. 73. )

873.290.
(a).
(b).
(c) The division is effective and title vests in accordance therewith upon entry of judgment of partition.

But, 872.040 does force the judgement of partition to consider the applicability of local zoning ordinance.

Not too long ago I owned an eight-acre size parcel that was created by partition judgement. A parcel map was filed subsequent and in accordance to the judgement. However, that same judgement today would run afoul of a change in zoning which now sets the minimum lot size at 40 acres, along with need for secondary egress. The only way this same judgement could be effective today would be if zoning variances were approved.

Unfortunately, as zoning ordinances have evolved, the legislation has not also evolved and addressed how a partition judgement should operate within the confines of the SMA requirements beyond that of what is stated in 872.040. If the judge (and referee) are not well versed on local subdivision and zoning requirements, there exists the very real chance that a partition in court may run afoul of the SMA and/or local zoning.

[David Kendall]

CODE OF CIVIL PROCEDURE - CCP
873.290.
(c) The division is effective and title vests in accordance therewith upon entry of judgment of partition.

This doesn't necessarily make the divided parcel legal or conforming (presumably you are seeking to leave court with viable parcels) which I believe is the question.

I would encourage the interested parties to negotiate with awareness of applicable building and zoning codes so that no one comes away with a useless chunk of land. It could be worthwhile to engage a reputable land planner to assist in the discussion. This would allow you to assure the judge that all of the Ts are crossed prior to the final ruling.

I have seen this method used to circumvent the Williamson Act which precludes typical subdivisions. Judicial partition does not make the lots legal (until the 10 years runs out) but it allows the land to be split up (eg if the owner died and you wanted to divide the land amongst the heirs)

It is hard to predict whether the controlling agency would require a subdivision map to be filed in order to obtain a building permit. Some are more reasonable than others when it comes to cases like this. Maybe start with applying for a Certificate of Compliance and go from there.

[Ric7308]

On a somewhat related note...recently during a visit from extended family members, it was mentioned that a daughter/son-in-law would be proceeding with divorce soon and they were trying to figure out how to split up rural agricultural property. I gave them some points to consider in terms of what should be considered and to enlist the assistance of a land surveyor in their local area for consultation. They didn't want to just let the legal counsels and court decide on how to split the land as that may not favor either or both parties and it was in both sides best interest to divide it in such a way that the land was useful for each one. If it was not beneficial for one side to make use of the land, it could adversely affect the use and value of the other side. They were speechless and said that the attorneys never mentioned any of the things I advised them to consider such as viable public access, zoning and landuse restrictions, etc.

[DWoolley]

I was looking for another reference in my files and found an Attorney General opinion that specifically answers the question asked here.

Please see the attached. The opinion states in pertinent part:

"Where a court orders the physical division of real property in a partition action, the division must comply with the requirements of the Subdivision Map Act, local ordinances adopted thereunder, zoning ordinances, and the general plan for the area in which the property is located."

This would include filing a parcel map.

DWoolley