Limit on Subdivision

by W. B. Lee
(Sandwich, NH)

Visitor Question: A deed states: "... the premises herein conveyed (can) not be subdivided or utilized for the purpose of multi-family dwelling(s)...".

What is the scope of the limit on "subdivision"? In particular, can the boundaries of the three parcels comprising the premises be re-drawn?

Note: other text in the deed indicates that that phrase imposes two independent restrictions: one against subdivision, the other against multi-family dwellings. That is, the first is a limit on any and all subdivisions, not simply subdivisions for the purpose of multi-family dwellings.

Editors Comment: We agree that while the statement in your first paragraph you quote is a bit ambiguous, your interpretation in the last paragraph seems correct to us.

As usual in this particular category of questions, we say that none of us are attorneys and we cannot give legal advice. We give planner advice on things to consider, ideally before approaching an attorney to try to save yourself a few dollars on legal fees.

Probably the original drafter of the deed restriction would not see adjustment of the lot lines between the three parcels as "subdivision."

However, if we were in your shoes, we would not want to live on the basis of "probably." Since deed restrictions are enforced privately, meaning in court or through a property owners association if one exists, you are always going to be relying on interpretation for whether your lots are legal. Looking into the future, we would not want to rely on a title company or other entity involved in the transfer of property to get hung up on whether the lot line changes are in keeping with the deed restriction.

Your options really are to hope for the best and go ahead and adjust the lot lines, recording each deed with the county, or to take care of this now so that future buyers or heirs do not have to deal with a potential problem.

Again, our choice would be to prevent any future problems. To do this, you will need to see an attorney. To prepare, you can figure out if the original author of this deed restriction is living and his or her whereabouts are known, and if not still living, whether the heirs can be located.

In most states and situations, the original author of the deed restriction can lift or modify it. An attorney might draft a very simple amendment for you, still banning subdivision in the sense of dividing up your parcels into small lots. But perhaps your lawyer can draft a modifying clause explaining that lot line adjustments are acceptable when current property owners agree.

So as a note to future authors of deed restrictions, be careful what you wish for. These three good sub-parcel owners now have to hire an attorney to clarify the intentions of the original author, or live with the potential that sometime in the near or distant future, someone involved in a property transfer will interpret "subdivision" to include minor adjustments in lot lines.

That "someone" would be wrong, of course, since subdivision certainly means creating more lots than existed before. However, you have to weigh whether it is worth small or significant delays in transferring property while this matter is resolved.

We hope these comments would be somewhat helpful in deciding how to approach lot line adjustment.

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