STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5361

September 12, 1978

SUBDIVISION CONTROL ACT:

Division of land creating five or more parcels

Where land has been divided into five or more parcels for the purposes of sale, it is necessary to plat the land even though no sale has been made of any of the parcels.

Where a property owner divides a parcel of land into four parcels and subsequently divides one of the tracts into three parcels for the purposes of sale, it is necessary to comply with the provisions of the Subdivision Control Act. This is true even if the proprietor retains several parcels.

Where a property owner conveys two contiguous parcels to the same purchaser at different times, the two parcels may be merged and treated as a single parcel for the purposes of determining whether five or more parcels have been created.

Where a property owner divides his land into less than five parcels and a purchaser of one of the parcels enters into a contract to sell the purchased parcel without recording the contract, the original property owner, assuming he has no actual knowledge of the sale, may treat the remaining tracts of land as if the land sold had not been further subdivided.

Honorable Kirby Holmes

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion concerning the terms 'subdivide' and 'subdivision' as they apply to specific examples of partitions or divisions of land pursuant to the Subdivision Control Act, 1967 PA 288, MCLA 560.101 et seq, MSA 26.430(101) et seq.

The words 'subdivide' and 'subdivision' are defined in 1967 PA 288, supra, Sec. 102(d) as follows:

My response to your questions will be made in the context of six examples of sequences of conveyances; each of which illustrates and explains the legal issues involved.

Jackson held title to an 80-acre tract of land, and in 1972 the following events occurred;

(a) Jackson divides his holdings into seven parcels, A, B, C, D, E, F and G as follows: (see illustration 1)

(b) Jackson retains lots A, B, C and D,

(c) Jackson sold lots E, F and G to Jones,

(d) In 1975 Jones sells F to Forbes.

Question: Since Jackson has retained four of the seven parcels, has there been a subdivision of the 80-acre tract which requires the filing of a plat?

Answer: A letter opinion to Representative Roy Smith dated December 19, 1967, states:

Thus, when Jackson had divided his lands into seven parcels for purposes of sale, six of which had an area of 10 acres or less in size, the fact that Jackson sold contiguous tracts of land to Smith and to Jones subsequent to effecting a division or partition of his lands does not reduce the number of tracts of less than 10 acres which Jackson had divided for purposes of sale. It is therefore my opinion that Jackson has created '5 or more parcels of land' and was required to make and record a plat of his subdivision in 1972.

Jackson partitioned or divided his 80-acre tract of land prior to sale in 1972, into four parcels: (see illustration 2)

Jackson sells parcel B to Smith in 1972. Jackson sells parcel D to Jones in 1972.

Question: Is it necessary to plat in compliance with the Subdivision Control Act?

Answer: Since there were less than 5 parcels involved, it is clear that the conveyance to Smith of parcel C and Jones of parcel D did not result in a Subdivision Control violation.

In 1975, Jones divides parcel D of illustration 2 into three tracts, D-1, D-2, D-3 using illustration 2(a), with respective areas of 1, 1 and 8 acres.

Question: Is it necessary to file a plat and, if so, by whom?

Answer: In this case Jones is required to plat his subdivision of parcel D into parcels D-1, D-2 and D-3 because Jackson's subdivision of his lands before the sale to Smith and Jones created four parcels (A, B, C, D in illustration 2); Jackson's retention of parcel A and C does not permit him to treat them as one lot because his original division of the land into four parcels was for purpose of sale.

(a) Jackson divides his 80-acre tract into three parcels with the following acreage: (illustration 3)

(b) Jackson conveys B to Smith,

(c) Jackson conveys C to Jones.

(d) Jones divides his 10-acre parcel C into 3 parcels; these being:

(e) Jones conveys C-2 to Forbes, (illustration 4)

Question: May Jackson sell a sixth parcel D (see illustration 4) to Jones if, combined with parcel C-3, it results in a single 13-acre parcel D + C-3?

Answer: Jackson may convey parcel D to Jones, the owner of C-3, without violating the Subdivision Control Act, supra. This conveyance does not create a fifth parcel of an area less than 10 acres, since title to both C-3 and D are unified and become one contiguous tract for purposes of determining whether a subdivision of five parcels or more has occurred.

(a) Jackson in 1972 divides his 80-acre tract into five parcels: (illustration 5)

(Since 4 of the 5 parcels had less than 10 acres, it was not necessary to plat at that time.)

(b) Jackson conveys the 8-acre parcel C to Jones in 1972 and thereafter, in 1976, creates and conveys parcel F to Jones, a merger thereupon being effected,

(c) In 1982 the division for sale of parcel C becomes 10 years old, but parcel F was purchased in 1976 and merged with C to form one 13-acre parcel CF.

Question: Since parcel C no longer exists, does this effect the further division of parcel CF?

Answer: After 1986 (on the 10th anniversary of the merger of C and F) the thirteen acre parcel CF may be divided into no more than 4 parcels with an area of 10 or fewer acres without necessity of platting.

(a) Jackson in 1972 divides his 80-acre tract into 3 parcels: (see illustration 6)

(b) Jackson conveys B to Smith in 1972,

(c) Jackson conveys C to Jones in 1972,

(d) Smith in 1973 contracts with Casey to sell and convey the south one acre (parcel D) of his tract, this contract is not recorded and is unknown to any local authorities, neither has Jones knowledge of the contract, (see illustration 7)

(e) Jones in 1975 divides his 10-acre tract into 3 parcels, C-1, C-2 and C-3,

(f) In 1977 Casey wants to pay off his land contract and build a residence.

Since the land contract between Smith and Casey of parcel D did constitute a partition of tract B and since that transaction, combined with partition of tract C by Jones resulted in the creation of 5 lots of less than 10 acres in size, the questions are:

1. What was the effect of the division of parcel B by the land contract between Smith the Casey?

2. What must be done under the Subdivision Control Act to remedy the situation?

Answer: It was not necessary to file a plat when Smith contracted to sell parcel D. When Jones divided and sold his parcel, he was without notice of Smith's contract with Casey. It was therefore competent for Jones to sell his lands and since he had no notice of Smith's partition, no violation of the Subdivision Control Act, 1967 PA 288, supra, Sec. 266, can be ascribed to Jones; neither should Jones bear the responsibility for making and recording a plat to cure any violation of the plat act, 1967 PA 288, supra, Sec. 265. While Smith's and Casey's failure to record their contract does not invalidate the contract, they are required to plat parcels B and D in accordance with the Subdivision Control Act.

In summary, it is my opinion that the provisions of 1967 PA 288, Sec. 102(d), supra, require application of the following principles:

Frank J. Kelley