State statutes enable cities and counties to pass ordinances governing the division of property into subdivisions, determining the divisions of property that are not to be considered subdivisions and setting forth the necessary requirements for the legal establishment of "plats of subdivisions" (in some areas also known as "maps of subdivisions").
When the land to be insured is a lot described with reference to a recorded plat of a subdivision, it is necessary that a thorough examination of the plat be made in order to determine its effect on the land and to ascertain that all statutory requirements have been complied with.
Area formally dedicated and accepted.
If the dedicated area has been formally accepted by any public authority the
area must be considered public property (fee or easement). Any attempted sale
of the same would be governed by the legal dispositions that regulate the sales
of property held by political bodies for public purposes.
(See Parks 15.00)
Area formally dedicated but never accepted.
Even where the public authority does not accept a particular "street", "public park", or any other area so designated on a plat, the general rule is that the owner subdivider, by platting land and conveying lots with reference to the plat, will be estopped to deny the dedication of the areas of the tract marked on the plat as "streets", "public parks", etc., as against his grantees, or will even be stopped to deny such dedication as against the public.
However, it should be noted that the approval of a subdivision plat by city or other public body is not an automatic acceptance of the "streets", "parks", or any other public area depicted on the plat.
The release of the dedicated area from the condition of "public property" would require the following:
- A formal "declaration of rejection or abandonment" executed by the proper authority.
- A formal "declaration of revocation" executed by the owner or developer of the platted area.
- The express written consent of all of the record owners (100%) mortgagees (100%) and parties in interest (100%) of every lot or part of lot that constitute the subdivision.
Area formally dedicated for private use or not dedicated but shown marked for a specific use.
Any dedication or reservation for the exclusive use of the owners of lots within the subdivision does restrict the right of the subdivider to use, sell, or encumber the dedicated or reserved area.
Any lot owner in the subdivision has a private right to have the area used as platted and may obtain a court order forbidding any other use.
Any attempted sale of any reserved (marked) land must be formally consented by all of the record owners (100%) of lots or parts of land that constitute the subdivision.
Streets As Shown On The Recorded Plat Of The Subdivision Are Not Dedicated For Public Use
In most jurisdictions each lot purchaser automatically acquires an easement of passage over the streets and alleys on the recorded plat or map of the subdivision, even though the deed to the lot makes no mention of such right.
In the absence of the plat containing a statement reserving all rights and privileges not expressly granted, and providing that nothing should be taken by implication to be granted, there is no need to raise the ?lack if access? exception as long as the subdivision itself, as a whole or unit, has access to any public street or road.
Insuring The Whole Plat Of A Subdivision
The use of the following description would result in the insurance of the whole subdivision:
"All of Blackacres, a subdivision of land in ____________ ________________ (city, if within one), County , State of _____________, according to the recorded plat thereof."
It should be taken into consideration that, when insuring the whole plat of a subdivision, if the legal description being used refers exclusively to the name of the subdivision without specifically stating the lot numbers contained within the same, it becomes indispensable to show, among others, the following exceptions in Schedule B:
- "All those portions of the property dedicated for public roads by the recorded plat of said subdivision."
- "All those portions of the property, if any, dedicated for (park, public use, etc.) purposes by the recorded plat of said subdivision."
- "All the easements, setback lines and restrictions established by the recorded plat of said subdivision."
- In addition, the description in Schedule A should also expressly except those portions of the land described in Schedule A, if any, which are not vested in the owner stated in the (commitment) (policy).
Note: A more precise and less dangerous manner to insure the whole are is to describe it as follows: "Lots 1 to 24, inclusive, in Block 1; Lots 1 to 17, inclusive, in Block 2, in Blackacres, a subdivision of land in..."
By simply not including in the description of the property the parcels marked for "public use", "park purposes", or "reserved", and any are dedicated for public or private roads, it does not become necessary to set up exceptions for utility easements, restrictions, setback lines and anything else that actually might effect the described lots.
Title Insurance Guidelines Relative To The Examination Of Platted Lands
The following items must by considered:
- Whether the "dedicator" or "subdivider" owned all the land within the plat prior to the recording thereof.
- Whether the land was affected by any lien or encumbrance, and whether the same was properly disposed of.
- Whether the plat was executed and acknowledged by the owner of the land and his/her spouse.
- Whether the plat was executed and acknowledged by a mortgagee (if any) and by any other party in interest (if any).
- Whether any city, county, state, or federal authority, agency or department had to consent, approve or authorize the plat.
- Whether the plat of the subdivision has legal access to any legally established public street or road.
- Whether access to the platted subdivision is by means of an appurtenant easement, and whether the easement has been legally established.
- Whether the plat, either by formal dedication or by depiction establishes building lines, easements, covenants or restrictions, streets, alleys or roads.
- Whether the plat contains any "dedicated" area (park, school, church, square, etc.) or any "reserved" area.
- Whether there is any reservation in favor of the developer.
- Whether there is any overlap between the land occupied by the subdivision and the land of any adjoining property.
- Whether the rights of the lot owners have not been violated in connection with any attempted change or correction of the plat subsequent to its execution and recording.
- Whether unpaid or delinquent taxes and assessments are affecting the whole subdivision.
- Whether any conveyance of any part of the subdivision was made prior to the recording of the plat.
- Whether any part of the platted area has been replatted or resubdivided.