Planning professionals are generally aware that many recorded subdivision maps preceded the adoption of the first subdivision map statute in 1893, and that the recording of a subdivision map, by itself, would not create separate legal parcels.   (See Gardener v. County of Sonoma (2003) 29 Cal.4th 990.)   As a recent case illustrates (Crescent Trust v. City of Oakland (2023) 91 Cal.App.5th 850, review granted July 12, 2023, S2080234), concentrating on the original map may be like watching a magician; you can miss what else is really going on.  Unlike a magician, however, there was no slight of hand in:  the subdivision was hiding in plain sight.

The chronology

1869    Map recorded, denoting multiple “blocks” and “lots”.

1877    Lots 15, 16, 17 and 18 conveyed with four others in probate.

1881    Lots 10-18 conveyed to a bank for financing purposes.

1885    Lots 15-18 conveyed by bank to grantee.

1887    Lots 15-18 conveyed by 1885 grantee to new owner.

1913    Lots 15-18 conveyed to new owner.

1932    Lots 17-18 conveyed through a probate proceeding later challenged.  Lots boundaries were adjusted.  Lot 18 boundaries are unaffected.    The transfer document described the property conveyed using both legal descriptions and lot number references (relying upon the 1869 map.)

1944    Lots 17, 18 and a portion of 16 conveyed.

2015    Petitioner acquires property, requests certificate of compliance on lot 18.   The city surveyor denies the certificate of compliance on the grounds that the 1932 probate proceeding resulted in a merger of the units.    Since 1972, there had been no separate assessments.   Petitioner files a petition for writ of mandate to compel the City to issue a certificate of compliance.    The trial court rejected the petition, but was reversed by the Court of Appeal (“Court”).

Section 66412.6, the curative statute

At issue was section 66412.6 which provides as follows: 


(a) For purposes of this division or of a local ordinance enacted pursuant thereto, any parcel created prior to March 4, 1972, shall be conclusively presumed to have been lawfully created if the parcel resulted from a division of land in which fewer than five parcels were created and if at the time of the creation of the parcel, there was no local ordinance in effect which regulated divisions of land creating fewer than five parcels.

(b) For purposes of this division or of a local ordinance enacted pursuant thereto, any parcel created prior to March 4, 1972, shall be conclusively presumed to have been lawfully created if any subsequent purchaser acquired that parcel for valuable consideration without actual or constructive knowledge of a violation of this division or the local ordinance. Owners of parcels or units of land affected by the provisions of this subdivision shall be required to obtain a certificate of compliance or a conditional certificate of compliance pursuant to Section 66499.35 prior to obtaining a permit or other grant of approval for development of the parcel or unit of land. For purposes of determining whether the parcel or unit of land complies with the provisions of this division and of local ordinances enacted pursuant thereto, as required pursuant to subdivision (a) of Section 66499.35, the presumption declared in this subdivision shall not be operative.

(c) This section shall become operative January 1, 1995.

As the litigation progressed, the City took the position that no lots had ever been created by the original map.     From the City’s perspective, the reference to lots on a map which was not a valid map did not create discrete units of land in later transactions.   The Court disagreed relying upon section 66412.6.    Petitioner argued that Lot 18 had been part of conveyances of less than five parcels in four different transactions, all during a time period in which there was no statute or ordinance in place regulating the creation of less than five parcels.   The court recognized that conveyance documents in California had long utilized lot numbers on early maps as a valid form of describing separate units of land.  The fact that the conveyance documents used both metes and bounds descriptions as well map references did not defeat the right of the owner of lot 18 to separately request a certificate of compliance.

The Supreme Court has granted review of the case, presenting the following issue

Comment:   For those involved with antiquated subdivisions, your library of documents should include copies of that jurisdiction’s subdivision ordinance (and possibly the county ordinances if the original map and any transactions occurred prior to annexation or incorporation into a city.

The Supreme Court has granted review on the following issue: “Is a pre-1972 conveyance by a single deed of a group of fewer than five contiguous lots that are separately described in the deed by reference to lot numbers on a pre-1893 survey map a “division” of land that “creates” an individual lawful lot for each of the separately described lots in the single deed under the conclusive presumption set forth in Government Code section 66412.6, subdivision (a) of the Subdivision Map Act?”

William W. Abbott is Of Counsel with Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.