Introduction
It is well known that one of the most contentious issues in the legislative process leading to the 1996 amendment of the Michigan Land Division Act (“LDA”) was the subject of redivision rights for unplatted land.1 So-called “redivision rights” grant landowners the renewed ability to divide unplatted land, without platting, following a statutory waiting period. Prior to the 1996 amendments, a property owner could generally create four parcels of land which were less than 10 acres in size from his or her property every 10 years, and an unlimited number of parcels 10 acres or larger at any time.2 Many municipalities and planners opposed the automatic 10-year renewal of division rights on the basis that the redivision of unplatted land encouraged land development patterns they considered undesirable.3 Representatives for agricultural, construction, and real estate interests promoted redivision rights as an inviolate privilege of land ownership. Both sides vehemently advocated for their positions. The failure of the parties to compromise on the issue was one of the principal reasons why the 1996 amendments to the LDA stalled until the eve of a legislative recess, and as a consequence, the current redivision provisions were negotiated by state legislators in the middle of the night.4
Common folklore attributes the ultimate success of the late-night legislative session to a pledge by the stakeholders to reconsider the subject of eliminating redivision rights when Michigan had taken satisfactory measures to streamline (e.g., speed up) the process of platting land.5 Curiously, this same type of pledge was made at the time of the enactment of the Subdivision Control Act of 1967, and then subsequently ignored.5
The 10-year anniversary of the 1996 amendments is fast approaching and the first exercise of redivision rights should follow shortly after March 31, 2007.6 This article discusses the operation of redivision rights under the LDA and the need to modify the current scheme.
Source for Redivision Rights
The exclusive source for redivision rights is Section 108 of the LDA. Subsection (5) contains the core principles governing the exercise of these rights, including the timing of the exercise of rights, and the number of new divisions which become available each time redivision rights arise. Subsection (6) provides that new redivision rights will continue to arise in the same manner in which the initial batch of redivision rights arose. These provisions read:
(5) A parcel or tract created by an exempt split or a division is not a new parent parcel or parent tract and may be further partitioned or split without being subject to the platting requirements of this act if all of the following requirements are met:
(a) Not less than 10 years have elapsed since the parcel or tract was recorded.
(b) The partitioning or splitting results in not more than the following number of parcels, whichever is less:
(i) Two parcels for the first 10 acres or fraction thereof in the parcel or tract plus 1 additional parcel for each whole 10 acres in excess of the first 10 acres in the parcel or tract.
(ii) Seven parcels or 10 parcels if one of the resulting parcels under this subsection comprises not less than 60% of the area of the parcel or tract being partitioned or split.
(c) The partitioning or splitting satisfies the requirements of section 109.
(6) A parcel or tract created under the provisions of subsection (5) may not be further partitioned or split without being subject to the platting requirements of the act, except in accordance with the provisions of subsection (5).
Redivision Rights Only Arise from Exempt Splits or Divisions
The first concept expressed by Section 108(5) is that in order for redivision rights to be operative, the parcel or tract which is the subject of the splitting activity must be “created by an exempt split or a division.” The term “created by” is neither a defined term nor a term used elsewhere in the LDA. The word “created” is used elsewhere but it does not appear to have anything other than a colloquial meaning.8 An “exempt split” is a type of land split in which all of the resulting parcels are 40 acres or greater in size.9 A “division” involves resulting parcels which are less than 40 acres in size, and which have obtained governmental approval after complying with Sections 108 and 109 of the LDA.10
One minor consequence of this threshold concept is that non-accessible parcels of 20 acres or more in size which resulted from land-splitting activities under Section 109b of the LDA will never qualify for redivision rights.11 Presumably, there is no need to allow further divisions of these parcels as they could be divided an unlimited number of times as long as all of the resulting parcels were at least 20 acres in size.
An open issue is whether the redivision provisions will now require future “exempt splits” of resulting parcels created previously from exempt splits to be subject to municipal approval and, therefore, to otherwise be subject to the division process. The redivision language of Subsection 108(5) can be construed in this manner, although it is doubtful that this was intended.
Parent Parcels and Parent Tracts Do Not Change
Another principle expressed by Section 108(5) is that a parcel or tract created by an exempt split or a division is not a new “parent parcel” or “parent tract,”12 and consequently new division rights do not automatically accrue to such newly-created parcels or tracts when they are created, nor do the number of division rights initially allocated to the parent parcel or parent tract change as land is combined or severed from the parent parcel or parent tract. The boundaries and acreage of parent parcels and parent tracts are forever fixed on March 31, 1997.
It may not have been fully appreciated by real estate practitioners during the last 10 years, but the “freezing” of the meaning of these critical terms under the LDA, as confirmed by Sotelo v Township of Grant,13 provided a significant amount of certainty for those who administered division rights. We all enjoyed a definite moment in time when we counted acreage and determined how many splits could be derived from the formulas of Section 108. While redivision rights share many common attributes with the rights associated with the initial batch of division rights which were allocated to parent parcels and tracts, redivision rights lack some certainty about the starting point of any analysis. We will no longer have a common point in time to look to as a reference for the commencement of a land division analysis. Each separate parcel or tract must be analyzed from the time it is created, and this time may vary considerably from other parcels or tracts arising from the same parent parcel or parent tract, or from neighboring properties.
Section 108(5) next provides that a “parcel or tract created by an exempt split or a division may be further partitioned or split without being subject to the platting requirements of the LDA,” if three enumerated conditions are satisfied: (1) a 10-year waiting period; (2) the availability of redivision rights under a new formula predicated on the acreage of the area being split; and (3) compliance with the same general criteria which otherwise apply to land divisions.
Ten-Year Waiting Period
To qualify for the exercise of redivision rights, the land owner must demonstrate that “not less than 10 years have elapsed since the parcel or tract (created by the exempt split or division) was recorded.” This is a curious phrase for several reasons. First, the 10-year clock is tied to the date the parcel or tract “was recorded,” rather than “created.” Presumably, the act of recording is different from the act of creation. This may occur, for example, in the case when a deed to a parcel is executed and then not recorded for a period of time. Of course, “recording,” rather than “creation,” is probably a more desirable benchmark as the public act of recording provides objective and easily verifiable evidence of an intent to create parcels or tracts.
The “parcel or tract was recorded” language is a little strange to real estate practitioners. We routinely record deeds, land contracts, or memorandums of land contracts (in order to evidence the transfer of ownership of land).14 We occasionally record leases or memorandums of lease in order to evidence lease transactions (divisions and exempt splits can also arise by the lease of land for a period in excess of one year).15 The statutory language regarding the recording of “parcels or tracts” may have been a cautious attempt to encompass all possible ways that land transactions implicated by the LDA are effectuated.
Unfortunately, the broad scope of this language may be used to validate other types of recorded documents, such as surveys, and justify their use as a starting point for the running of the 10-year redivision clock. Prior to 1997, it was a regular practice to record surveys which complied with Section 132 of the LDA in order to evidence a proprietor’s intent to split a parcel into resulting parcels, and thereby start a new 10-year clock running with respect to the recorded survey parcels, without transferring title to any of the parcels reflected in the survey.16 If recorded surveys are indeed included within the meaning of the phrase “parcel or tract was recorded,” this would certainly be an ironic result as it was largely regarded that the LDA incorporated the term “parent tract” for the sole purpose of aggregating and eliminating any benefit from so-called paper splits which arose from surveys of record before March 31, 1997.17 Whenever one or more parcels which shared a common property line were under common ownership as of March 31, 1997, they were aggregated and treated the same as a single parcel. It is not evident why the legislature would craft the LDA to re-authorize so-called “paper splits” 10 years after they were consciously eliminated.
New Formula for Redivision Rights
The new base formula for redivision rights follows the format of the original formula for land divisions found in Section 108(2) of the LDA in substantial part, with a few significant changes. First, the new base redivision formula reduces the number of resulting parcels which may be available to a land owner for parcels or tracts which are smaller than 20 acres in size.18 The original formula automatically allowed 4 resulting parcels, regardless of the size of the parent parcel or parent tract. Whether all of these authorized divisions could be taken in the real world generally depended upon limitations found outside of the LDA, such as density requirements in applicable municipal zoning ordinances. The redivision formula only allows 2 resulting parcels for the first 10 acres or fraction thereof, plus one for each additional whole 10 acres in the parcel or tract.
Unlike the division formula, the redivision formula includes two alternative caps on the maximum number of resulting parcels which may be generated from the base redivision formula. The statute introduces the caps by saying that a proprietor qualifies for a number of resulting parcels under either the base redivision formula or under the capped formula, “whichever is less.” The “whichever is less” language means that the caps are only relevant if there is sufficient acreage in the parcel or tract for the cap to apply. In other words, the caps limit rights under the general redivision formula; they do not grant additional split rights. Since the two different caps are stated in the alternative and separated by “or,” presumably the cap which allows the greater number of division rights will be applicable.
In general, the caps will allow up to 7 resulting parcels, unless certain cluster conditions apply, in which case up to 10 resulting parcels are allowed. This means that in the absence of the cluster conditions being applicable, the redivision formula stops benefiting property owners when the parcel or tract being measured has more than 60 acres. A 70-, 120-, or 240-acre parcel has the same number of resulting parcels from the formula as a 60-acre parcel. This is dramatically different from the original division formula, which continued to grant additional division rights indefinitely based upon the acreage of the parcel.
The clustering condition, which allows up to 3 additional resulting parcels if the parcel or tract otherwise has enough acreage to qualify for the additional resulting parcels, is simple and somewhat familiar because clustering of resulting parcels has been one way that a parent parcel or parent tract was allowed to qualify for additional division rights under Section 108(2) of the LDA. Under the redivision provisions, if all but one of the resulting parcels is situated on 40 percent or less of the area of the parcel or tract being evaluated, the higher 10-parcel cap applies. That’s it. Of course, in order to claim 10 resulting parcels, you will need to have 90 acres or more of land area. This may not make the higher cap meaningful in the vast majority of land division transactions.
It is important to note that the redivision provisions do not have any mechanism which is similar to the two bonus provisions which authorized additional division rights as long as the parent parcel or parent tract was at least 20 acres in size. Bonus divisions were popular and most real estate practitioners have qualified their clients’ property for additional division rights by creating and utilizing a new street, public or private, to service the resulting parcels, or by clustering the lots so that at least one resulting parcel was created with 60 percent or more of the land area of the overall parent parcel or parent tract.19 Neither of these “good planning techniques” will generate bonus redivision rights in the future. The use of clustering will simply allow the cap on redivision rights to rise if a proprietor has sufficient acreage to take advantage of the higher cap.
Compliance with General Land Division Criteria
The LDA requires that all resulting parcels which arise from the exercise of redivision rights satisfy Section 109 of the Act. This final condition for redivision approval is probably the easiest to understand as we have all worked with Section 109 of the Act and our local municipalities’ land division ordinances, when applicable, to obtain approvals for land splits.20 The LDA sets forth several criteria which must be evaluated by the local municipality (city, township or village) or authorized county in order to determine whether a proposed land split qualifies as a division.
The applicant for a land division must first demonstrate to the governmental authority that each resulting parcel has an adequate and accurate legal description, by including the same in a tentative parcel map, drawn to scale, showing area, parcel lines, public utility easements, and accessibility. The tentative parcel map must also provide some historical background about the original parent parcel or parent tract associated with the divisions or exempt splits which are the subject of the redivision application, in a manner which is sufficient to demonstrate that redivisions are available to be taken.
Each applicant must demonstrate that the resulting parcels satisfy the State’s lot width to depth ratio, or any local ratio adopted in place of the state standard under a land division ordinance.21 The state standard, which applies to parcels or tracts of 10 acres or less which are not retained by the applicant, requires that each resulting parcel have a depth of not more than 4 times the width.22 A municipality (or authorized county) may require a smaller or greater depth to width ratio in a land division through its land division ordinance.
The depth to width ratio also does not apply to any resulting parcels which are “retained by the applicant,” regardless of the presence of any local land division ordinance.
Each resulting parcel must have a width and area not less than that required by an ordinance adopted to carry out the provisions of the Act.23 If there is no applicable land division ordinance, width and area are not valid criteria for municipal review of a division. Each resulting parcel must be accessible in order to qualify for a division.24
Finally, if any of the resulting parcels are development sites, the applicant must prove that adequate easements for public utilities exist from the resulting parcel to existing public utility facilities.
Looming Problems with the Operation of the Redivision Provisions
Despite the apparent familiarity of the manner in which redivision provisions will operate, there are subtle and potentially serious gaps and problems lurking in the background of the LDA which will need to be addressed by the courts, if not earlier modified by legislative action. These problems may be summarized as: (1) the uncertain status of land retained by a proprietor; (2) the transfer of stacked division rights; (3) dealing with inchoate redivision rights; and (4) the problem with tracts. All of these issues will be discussed within the context in which they will likely arise, i.e., the undying quest by real estate practitioners to maximize the number of resulting parcels attributable to land.
Land Retained by a Proprietor
One of the first issues which will rise to the forefront of any redivision analysis is whether property retained by the proprietor who initiates a division or exempt split (the “remainder property”) is also considered to be “created by an exempt split or a division” for purposes of Section 108(5) at the time the first resulting parcel is “created” from the parent parcel or parent tract.25 If it is not “created” at the time the first division is taken, is it ever created? If so, when? The possible answers to this inquiry are best illustrated by an example. The answer to this question is important because it may affect the commencement of the 10-year redivision clock for all of the parcels or tracts created from the splitting of the parent parcel or tract.
Assume that a parent parcel contains 18 acres on March 31, 1997 and it is lawfully divisible into four resulting parcels. All four divisions are approved at the same time by the local municipality in April, 1997. A closing is held for the first three parcels on the same date in April, 1997, and they are simultaneously conveyed by deed to three unrelated parties. The proprietor retains the fourth parcel until it can be sold. The fourth parcel typically would not be described in any of the deeds for the three sibling parcels. It exists by implication because everything around it has been conveyed away and it is a remnant of the original parent parcel. Has it been created? Probably yes. Did it receive a separate tax parcel identification number and legal description by the local assessor, and separate property description? Yes. Has it been recorded? Yes, no, well, maybe. Certainly the deed to the parcel was recorded more than ten years ago. There would generally be no deed from the grantor to himself with the separate legal description of the remainder parcel because this is not necessary to convey property one already owns to himself under general principals of Michigan real estate law.
Obviously, one can argue that the remainder parcel was created by implication when the other three deeds were recorded and, therefore, its 10-year clock began to run for redivision rights (like the other three parcels which were conveyed to third parties). There is some fairness to this position.26 Otherwise, the remainder parcel will not enjoy redivision rights until it is conveyed. On the other hand, one can argue that the parcel has not been “recorded” until a deed (or other instrument of conveyance) containing its description has been recorded. The latter interpretation would deny redivision rights to the parcel until a reconveyance of the parcel. Each outcome has dramatically different consequences for the sibling parcels. As there is no definitive answer to this inquiry at this time, this pivotal issue will likely be one of the first redivision questions that the courts address.
Addressing the Uncertain Consequences of Stacking
Stacking (or layering) arises when the proprietor of a parcel or tract enjoys unused division rights and redivision rights at the same time. This situation will routinely happen under the LDA. This happens, for example, whenever a resulting parcel is transferred with division rights shortly after land division approval is obtained, and then simply retained by the grantee for the 10-year waiting period. Stacking does not pose any analytical difficulties in most factual situations. The fundamental problem with stacking is that the rights associated with exercise of redivision rights are slightly different than those with conventional division rights, and there is no conceptual framework in the LDA to deal with the consequences of “stacking” when the differences arise.
Division rights which initially arose on March 31, 1997 (“original division rights”) can be used anywhere within the original parent parcel or parent tract. Divisions created by the exercise of redivision rights, however, appear limited to the geography of the parcel or tract created from a recorded exempt split or division that is at least ten years old. They may not be available for use anywhere within the parent tract or parent parcel. The original division rights may also be augmented by bonus provisions in the LDA which award two additional split rights if certain “good planning techniques” are utilized in the effectuation of the splits: (1) the creation of new drives or roadways, public or private; or (2) clustering.27 These provisions do not apply to divisions created by the exercise of redivision rights. It is probably fair to assume that the original division rights are more valuable than the later-acquired redivision rights, because they are more applicable and/or versatile. Both types of rights may be sold and transferred, either at the time a division is made of such parcel or tract, or at any time subsequently. Both types of division rights are transferable by the same language which appears in a deed:28
The grantor grants to the grantee the right to make [insert number] division(s) under section 108 of the land division act, Act No. 288 of the Public Acts of 1967.
The obvious question is whether there is any way to keep the “old” division rights separate from the new “redivision” division rights (and thereby retain the more valuable “conventional” division rights when a transfer of less than all rights is desired)? How does a proprietor use the statutory language and convey one type of division right but not another? What happens in the event no distinction is made? The LDA does not provide any clear answers to the inquiries. There is no “FIFO” (first in, first out) rule. In all likelihood, the statutory language will need to be augmented by the legislature or by language added to the deed by real estate practitioners. Whether the courts will respect additional deed language based upon the general notion that it is within the grantor’s power to allocate such rights is unknown.
Dealing with Inchoate Redivision Rights
Original division rights simply arose from the LDA on March 31, 1997 and immediately vested in the proprietors of parent parcels and parent tracts. Redivision rights are more complicated. They are conceived when a parcel or tract is created from an exempt split or division and they must matriculate for ten years before they vest into a state of being which makes them divisions. The original boundaries of parent parcels and/or parent tracts do not change for LDA purposes as redivision rights matriculate, even though these parcels or tracts may change ownership, or physically change by being partitioned, split, or merged with other properties.29
The period of matriculation has caused and will likely continue to cause confusion and tensions between the original proprietor of land and his grantees until the courts or the legislature better define the ownership of redivision rights. It is not uncommon for proprietors to believe that ownership of the inchoate redivision rights (those rights, if any, which arise immediately following the creation of a resulting parcel from a division or exempt split) gives them the right to control the destiny of the divisions which will result when the 10-year holding period has been satisfied, even if they do not own the subject property at the time the rights vest into divisions.30 Most do not know why they believe what they believe but they generally trace the notion back to the concept that you only give away what you expressly give away under the LDA. Both sides to this issue agree that the statutory deed language of Section 109(3) does not purport to transfer anything other than full-blown division rights. Under this reasoning, if inchoate redivision rights can not transfer, they must remain in the hands of the original proprietor.
This argument runs into difficulties when Subsection 109(3) of the LDA is examined in closer detail. This provision also provides that “in the absence of a statement conforming to the requirements of this subsection, the right to make divisions under 108(2), (3) and (4) stays with the remainder of the parent tract or parent parcel retained by the grantor.” It is obvious that this provision does not reference Section 108(5) of the LDA, the source of redivision rights. If one was preserving the status of inchoate redivision rights, this would have been the likely place to do so. The better reading of the LDA is that it rewards the proprietor of land who satisfies the requirements of the redivision provisions at the time a request for division approval is made to the local municipality. In other words, redivision rights appear to simply spring up in the hands of the land owner when conditions are ripe, just like the original batch of division rights arose on March 31, 1997. No action is required to be taken by the original proprietor of the parent parcel or parent tract to independently transfer inchoate redivision rights to a grantee. Redivision rights arise from the attributes of the resulting parcels alone.31 They are not dependent upon any actions of a proprietor who may have owned the land for a period of time while the redivision rights were matriculating.
Is it necessary to deal with unripened–inchoate–redivision rights until they vest into being? The answer is a qualified “yes.” Real estate practitioners will likely seek assurances from sellers, governmental authorities and title insurance companies about the status of such rights every time the parcel or tract to which they appertain is valued and transferred, just in the same manner that assurances were previously obtained from transferors of division rights. Properties with inchoate redivision rights which matriculate in 2 years may be worth more than similarly-situated properties whose rights do not matriculate for 8 years.
The Problem with Tracts
The most troublesome new concept in the redivision provisions involves the use of the tract concept as a starting point in the formulas for redivision rights. The redivision provisions are the only place in the LDA where the consequence of a division or exempt split is referred to as a “tract”; elsewhere, the consequence of splitting is always a “parcel.” Section 109(2) of the LDA, for example, states that the right to make divisions exempt from the platting requirements of the LDA can only be transferred from “that parent parcel or parent tract to a parcel created from that parent parcel or parent tract.”32 The familiar form used by the State Tax Commission to administer the LDA–the Notice to Assessor of Transfer of the Right to Make a Division of Land (Form L-4260a)–uses the following phrases mandated by Section 109:
3. Were there any unallocated divisions transferred to the newly created parcel? If so, how many?
4. How many unallocated divisions were transferred to the newly created parcel?33
Even the redivision provisions say that the consequence of a splitting or partitioning action under their formulas is a resulting parcel (with no reference to the formation of a tract).34
Was the use of the term “tract” a calculated expression of legislative intent, or a simple mistake made in the rush of a legislative whirlwind to recess? For the reasons which will be discussed, real estate practitioners can only hope it was a mistake. Unfortunately, the term is used six times in Section 108(5) and (6), thus indicating that some conscious forethought may have been given to its inclusion.
What does it mean to be a tract created by the recording of an exempt split or division? At what point in time is the tract measured? May parcels outside of the original parent parcel or parent tract of the subject parcel be aggregated with the subject parcel to constitute a “tract” for purposes of a redivision analysis? How does the 10-year clock begin to run with respect to such tracts? What social policy is being implemented by the inclusion of this term? These are all great questions but unfortunately, there are few clues in the LDA about how they should be answered. The mere fact that parcels are being aggregated for counting purposes under the redivision formulas may allow parcels which were acquired at different times, and held for different holding periods, to be bootstrapped together, and thereby either accelerate or delay the exercise of redivision rights, depending upon the circumstances. It all depends upon when a tract is measured.
When to Measure a Tract
The LDA is unclear as to when and how to measure a parcel or tract whose acreage is being used to compute redivision rights, in marked contrast to the way in which these terms were handled with the initial divisions of a parcel or tract.35 There is no starting point with the definition of these terms. Section 102(g) of the LDA defines “parcel” as “a continuous area or acreage of land which can be described as provided in the act,” and Section 102(h) of the LDA defines “tract” as “2 or more parcels that share a common property line and are under the same ownership.” When these terms are used to determine whether an original division can be taken, they are always modified by the adjective “parent,” and when used in this manner, they mean “a parcel or tract . . . lawfully in existence on the effective date of the amendatory act that added this subdivision,” or March 31, 1997.36 Similar treatment is used when the terms are employed in Section 109b of the LDA, dealing with certain non-accessible parcels of 20 acres or more.37
There is no parallel concept like “parent tract” or “parent parcel” which pegs a specific date or event for redivision purposes, nor does the LDA provide any clues about what date or event was intended. There are at least three possible dates which could be used for the purpose of determining the meaning of these terms and, as might be expected, each different date produces different results when a tract is involved. These dates are: (1) the date when the parcel or tract was first recorded;38 (2) the 10- year anniversary of the date when the parcel or tract was first recorded; and (3) the date when a land division based upon the parcel or tract is approved or taken. There are vast differences in treatment based upon the date selected and quite frankly, since it is not clear what policy objective was sought by the inclusion of the term tract, it is not obvious which date makes sense and should be employed.
Examples
For example, assume that after March 31, 1997, a land owner purchases and records his deeds to two contiguous parcels (2 acres and 29 acres) from two different proprietors and two different parent parcels. Both grantors retained the balance of their parent parcels and no division rights were assigned. Five years later, the land owner conveyed 11 acres (from the 29 acre parcel) to his southerly neighbor as an exempt transfer of land to an adjacent parcel of land. Six additional years pass. The land owner conveys the 2 acre parcel (as originally configured) as a second exempt transfer of land to another adjacent owner of land. Twelve years after he received his initial conveyances of 31 acres, the land owner decides he wants to exercise his redivision rights and split his remaining land. He learns that his land must be aggregated into a tract in order to determine how many parcels are available by the exercise of his redivision rights. When are these determinations made?
If the status is determined when he initially acquired and recorded deeds to the two parcels–the date they were created and recorded and the first possible date a tract was formed–he would have two parcels (2 acres and 29 acres), or a tract of 31 acres. There may not be anything in the LDA which prevents land from two different parent parcels or parent tracts to be aggregated for purposes of redivision analysis.39 Presumably, the formulas of subsection 108(5)(b) require us to aggregate the land as a tract to determine the number of redivision rights because it will result in a lesser number.40 This would give the landowner the possibility of creating 4 resulting parcels under the formulas of Section 108(5), depending upon the configuration of the splits (and local zoning). This interpretation basically ignores what happens during the 10-year matriculation period of the redivision rights. What happens to the grantee of the 11 acres and the grantee of the 2-acre parcel? Aren’t they part of the same tract which is being analyzed? When, if ever, are they considered severed from such tract? The LDA does not say.
If the tract status is determined on the date when the land owner first owned the two parcels for 10 years (presumably the date his redivision rights vested), he would have two parcels (2 acres and 18 acres), or a tract of 20 acres and he would have 3 resulting parcels available to him, depending upon the configuration of the resulting parcels (and local zoning). This conclusion begs some questions. Do all of the parcels of a tract have to be owned for the same period to be counted? Is the tract’s identity forever established on the 10-year anniversary? If the description of the tract changes for any reason during the 10-year period, does a new 10-year clock start running? Doesn’t Section 108(5)(a) refers to the concept of “parcel” or “tract” as if it was determined in the past, when “the parcel or tract was recorded?” The LDA does not provide any clear answers.
If the tract status is determined when the land owner applies for divisions by exercising his redivision rights, or takes the redivisions by recording a deed or other conveyance, the land owner would only have one parcel of 18 acres and he would be limited to the creation of two resulting parcels. While this is not as many redivision rights as are available under the other scenario, this result is certainly easier to calculate and more predictable. It also recognizes the dynamic nature of land ownership patterns and provides opportunities for planning by placing the date of reckoning entirely within the control of the land owner who undertakes the splitting activity. Better planning by the land owner may have resulted in more divisions–for example, if he had waited until after he had exercised redivision rights to transfer land to his neighbors, he would have more split rights. In this last example, the land owner who makes otherwise exempt transfers of land to his neighbors, before he applies for redivision approval, is treated differently from a land owner who first obtains redivision approval before transferring land to a neighbor.
What if the example is more complicated and the landowner acquired his initial parcels at different times, e.g., the first 2-acre parcel in April, 1997, a second 3-acre parcel on April 1, 1999, a third 22-acre parcel in 2002, and a fourth 4-acre parcel in 2003? If we assume no transfers to adjacent parcels of land, how many acres are in the land owner’s tract on April 2, 2009–5 or 31? In other words, is it possible to include the additional 26 acres in the “tract” which the land owner acquired in 2002 and 2003, because he now owns four parcels which share a common property line (e.g., the definition of a “tract”), or is the land owner limited to considering only the first 5 acres which he acquired in 1997 and 1999 as part of the “tract” because only 10 years have lapsed on those parcels? If the third parcel to be acquired is not included in the bundle of land aggregated for the “first tract,” is there a second composite “tract” which arises after the third parcel is owned for 10 years, or would the land owner only have one earlier tract and two extra parcels which have not yet achieved tract status–a tract with 5 acres, one parcel with 22 acres, and one with 4 acres? If separate, do each qualify for the minimum redivision rights under the formulas of Section 108(5) which would allow the land owner to create two resulting parcels for each parcel or tract, for a total of six parcels (two for the first tract, and one for each subsequent parcel which trips the 10-year mark)?
If the status of the “tract” is determined on the 10-year anniversary of ownership of the first parcel the land owner acquired in 1997, or on the date he applied for a land division based upon his redivision rights on April 2, 2009, he could either have one tract of 31 acres (because he owned all four parcels), or one tract with 5 acres, and one tract with 26 acres, depending upon whether it is necessary for him to own both parcels for the full 10-year period.
If the status of the “tract” is determined without regard to whether 10 years of ownership has lapsed on all of the parcels in the tract, the land owner would have a single tract of 31 acres and qualify for 4 resulting parcels, depending upon the configuration of the splits (and local zoning). If a second, third or fourth parcel is aggregated for purposes of determining whether a tract exists, it would not make any difference whether the land owner acquired the additional parcels five years after the first, or five minutes before the land division application was made.41
If the status of the “tract” is determined by having all of the parcels in the tract qualify for the 10-year holding period, no redivision of the parcels of the tract could occur prior to 2013 in the foregoing example.
The uncertainty about how to administer the tract provisions, as well as the real possibility that land areas under ownership by different parties at different points in time may have to be included in each party’s land division analysis, and possibly counted differently by each party and to the exclusion of the other party, will make any analysis under the redivision provisions extremely complicated and fraught with peril. This peril will increase significantly if it involves a tract with multiple parcels which have changed hands. The uncertainty about the new redivision provisions may also encourage something we have not seen for at least ten years–a rush to the local register of deeds to record splits before some one else grabs them. The only way to make the process more certain is to ask the municipality for approval and record the divisions before anyone else in your possible tract does the same.