Lot Legality (Parcel Legality)
To obtain a permit for building, grading or subdividing real estate in California, a parcel must be legal. At the time an application for land development approval or certificate of compliance is submitted, the applicant must present proof that the lot was created legally. This page describes the types of documents that satisfy this requirement.
Over the years, there have been a number of ways to create a legal parcel. The most common means of establishing the creation of a parcel are deeds from one owner to another describing a precisely delineated (metes and bounds) portion of a larger property, and reference to a land division map formally approved by the county under the Subdivision Map Act or its predecessor statues (known at various times as a plat map, parcel map or tract map).
Requirements for creating parcels changed from deeds to a land division map because of procedures established at either the state or local level, regulating the creation of parcels. Knowing the dates that the parcels were created is important so they can be compared to the requirements that were in place at the time the parcel was created.
Many properties in the eastern portion of our county are referred to as sectional property as part of the Public Land Survey System (PLSS). The PLSS is a way of subdividing and describing land in the United States by the Federal government. The PLSS typically divides land into 6-mile-square townships. Townships are subdivided into 36 one-mile-square sections. Sections can be further subdivided into quarter sections, quarter-quarter sections, or irregular government lots. Government lots are typically quarter-quarter sections along the north and west boundary of a township and are generally around 40 acres. Government lot numbers may also have been assigned to oddly-shaped parcels of various acreage along grant lines or to oddly-shaped sections of the General Land Offices’ original land surveys. A quarter-quarter section or government lot is considered a separate legal parcel only if it was granted separately by the government or conveyed individually by a subsequent owner. The original government grants of land, called patents, are recognized as legally created parcels. Attachment 1 in the process guide binder illustrates the township and range system.
A record of survey is a record of an actual survey of a property showing placement of monuments and measured distances and bearings in the field. Records of survey are generally conducted to determine the physical location and/or acreage of existing parcels. They do not create legal lots of record, except for those completed in 1937 to 1962 to record an approved subdivision of 5 or more lots of one acre or less in size. Very few were actually recorded during that period. Evidence that the subdivision was approved by the Board of Supervisors must be provided.
A court decree partitioning real property does not singularly create separate legal parcels. Code of Civil Procedure section 872.040 requires partition actions to comply with the Subdivision Map Act and local ordinances in order to create separate legal parcels. In most instances, court decrees will need to be reviewed by staff and County Counsel.
Decrees of Distribution are recorded documents as a result of a property owner passing away. The decree specifies who the heirs are and the distribution of any property the deceased person owned. A decree of distribution is a valid “deed” of sorts as it is “conveying” property to someone else (i.e., an heir).
Roads, streets, utility easements or railroad rights-of-way do not create separate parcels. Under the Subdivision Map Act, legal parcels are considered as a whole even when roads, streets, utility easements or railroad rights-of-way bisect the parcel.
The current rules and regulations that we use in determining parcel legality (in addition to current case law) specify that maps recorded 1929 or later that were in accordance with the Statutes of the State of California for the years 1929 or later create legal lots of record per the recordation of the map. If a map was recorded 1929 or earlier with pre-1929 CA statues the recordation of the map did not in and of itself create legal lots of record. The "historical" lots can still be shown on APN maps and referenced in legal descriptions for the property. So, we then look at the deed history for the property.
- For parcels of less than three acres in size we look at deed(s) prior to October 12, 1960. This is the date of our County's first lot division ordinance. This ordinance specified that if you wanted to subdivide property into parcels of less than three (3) acres you needed to process a subdivision map. Before the ordinance went into effect (pre-October 12, 1960) a deed conveyance(s) can be examined to determine parcel legality.
- For parcels of three acres or more but less than forty acres in size we look at deed(s) prior to February 17, 1966. This is the date of Ordinance No. 834. This ordinance specified that if you wanted to subdivide property into parcels in this size range you needed to process a subdivision map. Before the ordinance went into effect (pre-February 17, 1966) a deed conveyance(s) can be examined to determine parcel legality.
- For parcels of forty or more acres in size we look at deed(s) prior to March 4, 1972. This is the date of amendments to the Subdivision Map Act (Stats. 1971, ch. 1446). This ordinance specified that if you wanted to subdivide property into parcels in this size range you needed to process a subdivision map. Before the ordinance went into effect (pre-March 4, 1972) a deed conveyance(s) can be examined to determine parcel legality.
Based on case law if there is a deed that has the subject property (i.e., lot from an old map, sectional property, property from an old rancho, etc.) and other adjacent property on one deed then all of the adjacent property is together one legal parcel. In order to say that a property is a separate legal parcel requires a deed that just specifies the subject parcel. Or, in a different case, if you find a deed that includes the subject property and additional adjacent property check to see when the “additional” adjacent property may have been deeded away. If before the appropriate date (based on acreage size) then the subject property could be a “remainder” and can be considered as a separate legal parcel.
The First District Court of Appeal has determined that subdivision maps recorded between 1893 and 1929 also do not create legal lots. (Abernathy Valley, Inc. v. County of Solano, 173 Cal.App.4th 42 (2009); Witt Home Ranch, Inc. v. County of Sonoma, 165 Cal.App.4th 543 (2008).)
A deed would need to be provide that is pre-1960, pre-1966 or pre-1972 to prove parcel legality. Sometimes an entire chain of title (deed history) is required. If a deed is provided to prove parcel legality the applicant can opt to apply for a regular certificate of compliance, but is it not mandatory. Lets say you have a property that is considered a legal parcel in accordance with current rules and regulations (and case law). The key is what if the legality rules change in the future (i.e., case law) and the subject property is no longer considered a legal parcel. If the property owner had gotten a certificate of compliance under the “old” rules then the certificate stands as valid, even if the rules change. If the property owner did not get a certificate of compliance under the “old” rules and then comes in and applies under the “new” rules he/she may end up having to apply for a conditional certificate of compliance.
The San Luis Obispo County Clerk-Recorder keeps recorded deeds. Another resource would be having a Title Officer run a prelimanry title report.