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SUBDIVISION CONTROL LAW - REMEDIES FOR INNOCENT PURCHASERS OF UNAPPROVED SUBDIVISION LOTS

In 1953, Massachusetts enacted what is commonly referred to as the "Subdivision Control Law", which is codified at G.L. c. 41, §§ 81K-81GG. The law was enacted for the purpose of

protecting the safety, convenience and welfare of the inhabitants of the cities and towns in which it is, or may hereafter be, put in effect by regulating the laying out and construction of ways in subdivisions providing access to the several lots therein, but which have not become public ways, and ensuring sanitary conditions in subdivisions and in proper cases parks and open areas.

G.L. c. 41, §81M. Accordingly, a principal concern of the statute is "the orderly expansion of the community according to accepted standards of municipal planning", accomplished by regulation of private street layout and construction, and creation or improvement of utility and drainage features in connection with the subdivision of land. H.R. 2249, 1952 Sess., Report of the Special Commission on Planning and Zoning (Mass. 1952), at 8.

Practically speaking, the Subdivision Control Law requires that a land owner who wishes to subdivide his property into two or more lots submit for approval a plan showing the proposed subdivision, as well as the existing or proposed access ways servicing the same, to the local planning board. See G.L. c. 41, § 81O. (Note, there are important exceptions to this requirement, see G.L. c. 41, §§ 81L, 81P). Predictably, there are occasions where a property owner decides to subdivide and convey a portion of his land without proper approval, leaving the legality and buildability of the subdivided lot or lots in limbo. Anticipating this problem, the Subdivision Control Law contains a remedial provision - Paragraph 3 of Section 81Y - which states:

If a subdivision of land has been made in a city or town while the subdivision control law is in effect in such city or town without a plan thereof recorded or entitled to be recorded under section eighty-one K, the person or persons executing and delivering the deed, mortgage or other instrument by which such subdivision was made shall be liable to each owner of such land or any part thereof who acquired title without notice or knowledge of such division having been made, for all damages sustained by such owner by reason of such failure to comply, in an action brought within one year after such delivery. Any person owning a lot in a subdivision, approval of which was required by the subdivision control law but not obtained, who did not make the subdivision and acquired title without notice or knowledge of the lack of such approval, may submit a plan of said lot and of the ways giving access thereto to the planning board, and such plan shall be acted upon in the same manner and with the same effect, so far as affects said lot and the rights of access appurtenant thereto, as a plan of a subdivision.

For as often as one might imagine property is subdivided without proper approval, there is a dearth of case law addressing this important statutory mechanism. Fortunately, the language of Paragraph 3 of § 81Y is relatively clear and instructive: an owner of land that was subdivided without the necessary approval under the Subdivision Control Law may (1) hold liable the prior owner/subdivider of the property by an action for damages brought within one year of the improper subdivision; or (2) if more than one year has passed since the subdivision, submit a single-lot plan to the planning board for approval under the otherwise applicable provisions of the Subdivision Control Law.

As to the first remedy, the lack of case law leaves property owners with little guidance as to the type of damages contemplated by the statute. Perhaps the buyer could recover the difference between the purchase price and the actual value of the land without subdivision approval; recoup the costs of preparing a proper subdivision plan and obtaining the requisite approvals (i.e. a plan showing subdivision from the larger parcel); or, possibly, recover the costs associated with a single-lot plan, as contemplated under the statute's second remedial option. Unfortunately, rescinding the sale of the property is not likely. The statutory language stating "liable... for all damages sustained" almost certainly limits the remedy to monetary damages, and not equitable relief - tasking the innocent property owner with obtaining municipal approval, even if the costs of such can be recouped.

As to the second statutory remedy, one Massachusetts trial court level case provides at least some guidance. In Bosworth v. Whiteside the Massachusetts Land Court outlined three prerequisites for submitting an 81Y plan for approval: (1) the applicant must be the owner of the property (a prospective buyer would not be entitled to submit an 81Y plan); (2) the property must be in a "subdivision", so as to fall under the province of the Subdivision Control Law; and (3) the owner must have acquired title to the property without notice or knowledge of the lack of subdivision approval. See Bosworth v. Whiteside, Mass. Land Ct., (Misc. Case Nos. 07-340917, 07-349281) (Nov. 21, 2011) (Piper, J.) (oral decision from the bench). If these requirements are satisfied a landowner may file a single-lot plan of the property, showing adequate access thereto, with the local planning board for consideration "in the same manner and with the same effect, so far as affects said lot and the rights of access appurtenant thereto, as a plan of a subdivision." G.L. c. 81Y. In other words, a single-lot 81Y plan is to be considered by a planning board exactly as they would consider any other subdivision plan, "and thus cannot be turned down except for violations of the [town's subdivision rules and regulations] which the [planning board] calls out in its decision." Bosworth, supra.

The Subdivision Control Law, although considered by some to be a procedural headache, attempts to limit the pitfalls of purchasing real estate by requiring certain basic amenities when new lots are created out of a larger tract of land, and provides for municipal review of the same. Even so, from time to time there are instances where a conveyance of land occurs without use of a plan and is in fact an unapproved subdivision of land, resulting in a lot that may pass through numerous owners over decades before the problem is realized. It is this exact problem that Paragraph 3 of Section 81Y is intended to remedy. The complete absence of appellate case law on this provision, however, indicates that the last word has not been written on the submission of single-lot 81Y plans for subdivision approval.

Written by Robert K. Hopkins, Esq., of Phillips & Angley. Edited by Jeffrey T. Angley, Esq. Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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