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A legal lot verification is a formal local government determination that a lot is legal, and thereby developable, because it was lawfully established before there were applicable minimum lot size or other ordinance provisions that would otherwise prohibit its creation. State law recognizes a 鈥渓awfully established unit of land鈥� where these is evidence that the land was 鈥渃reated by deed or land sales contract if there were no applicable planning, zoning or subdivision or partition ordinances or regulations.鈥� The evidence necessary to show that a property was 鈥渓awfully established鈥� may require tracking the history of conveyances over time. This exacting and tedious effort of tracing and construing deeds over time sometimes leads to interesting litigation, as demonstrated by two recent cases originating in Lane County.

Carroll v. Lane County dealt with a legal lot verification for a 0.45-acre reminder parcel that was never described in a deed. Rather, in the early 1900s, portions of a 40-acre-plus parent parcel were conveyed to others by deed, leaving only a small strip bounded by a river and the northern parent parcel line unconveyed. Petitioners applied to Lane County for a lot verification determination. The county denied the application, relying on a maxim of deed construction that provides that, unless there is evidence to the contrary, title to narrow strips of land is assumed to attach with the conveyed property to the grantee. This most often comes up in questions about land bordering a street or stream where the court has applied this maxim to also include within the conveyance narrow areas within the middle of a street or the bed of a stream. Relying on this maxim and because it was not otherwise described, the county presumed conveyance of this 0.45 acre was inadvertently omitted from the larger conveyance.

Petitioners appealed the county鈥檚 denial to the Oregon Land Use Board of Appeals. LUBA鈥檚 analysis focused on the state law definition of a 鈥渓awfully established unit of land,鈥� which requires evidence from deeds that the unit was 鈥渃reated.鈥� Finding no deed reflecting a metes and bounds description of the subject property that would affirmatively create this parcel, LUBA affirmed the county鈥檚 denial. Petitioners sought review by the Oregon Court of Appeals. The Court of Appeals analysis begins with the finding that a unit of land can be created as a legal consequence of conveying some, but not all, of a property. Where a grantor retains ownership of what is not conveyed, that deed of conveyance 鈥渃reates鈥� a remainder parcel.

The court rejected the county鈥檚 reliance on the real estate maxim by first noting that it applies only in very limited circumstances dealing with title boundary disputes where there is a question of ownership of tidelands or areas occupied by streets. More importantly, this maxim applies only where the terms of the conveyance are ambiguous. Here, there was no dispute over ownership and there was no confusion over the metes and bounds descriptions of the various areas conveyed. Therefore, the court concluded that a 1908 deed conveying other portions of property away had the legal consequence of creating the remainder parcel that was entitled to a legal lot verification from the county.

The second case, Leckie v. Lane County, deals with the effect subsequent conveyances through partition plats have on lands containing historic subdivision lines. In this case, the petitioner sought a legal lot verification to acknowledge a lot line reflected in a 1912 subdivision plat for a parcel that included more than one of those historic lots. In 1977 and again in 1981, previous owners-in-interest partitioned the land, further breaking up the parent parcel. The recorded partition plats did not reflect the historic subdivision plat lines. In 1984, the county adopted zoning that required an 80-acre minimum parcel size for a new dwelling. In 1989, the owner of the remainder parcel, relying on the historic subdivision line, conveyed a 40-acre portion to the petitioner and kept the remainder. The petitioner sought a legal lot verification that the 40 acres was a 鈥渓awfully established unit of land.鈥�

The county denied the verification finding that the 1977 partition vacated the historic 1912 lot lines and therefore the 1989 conveyance served to create the unit in violation of the minimum lot size. LUBA affirmed the county鈥檚 decision. Seeking review by the Court of Appeals, the petitioner argued that determining whether a unit of land was 鈥渓awfully created鈥� focuses exclusively on the time that the unit was created and not actions that come afterward. Agreeing with the county and LUBA, the court affirmed. The court explained that nothing in the 1977 partition plat indicates the existence of the 1912 lots, noting that it is 鈥渨ell established鈥� that a 鈥減artition has the effect of vacating previous lot lines where 鈥� the partition map does not indicate the continued existence of the lots that were partitioned.鈥� Although the 1981 partition map did indicate the division from the 1912 lots, it is noted in dashed lettering, which the court took to indicate a lack of intent to continue those parcels.

Both cases illustrate the exacting level of deed analysis required to complete a legal lot verification that can and often does go back through numerous conveyances well over 100 years. The fact that LUBA and the Court of Appeals have adopted a common practice of embedding land division maps within the text of these decisions is immensely helpful to track the court鈥檚 reasoning. Lot verification is most often a prefatory step in developing a dwelling on rural land and cases like this are likely to come up more often as the pressure for housing continues to increase.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 50 years of experience. Contact him at [email protected].

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither author nor the 91视频 guarantees the accuracy or completeness of any information published herein.