Maine is one of the more heavily forested and undeveloped states in the country. This means Maine is home to a great number of large undeveloped parcels of land. One common question of landowners is, what is required when it is time to split that land up between multiple owners?
The short answer to the above question, and the vast majority of legal questions, is it depends. This will depend on facts such as; how many lots the land is being divided into and who the owners of the new lots are going to be. In the simplest scenario, a lot is divided in two and you will prepare a deed (or deeds) to the new owners. Care should be taken to ensure the new lots both meet minimum lot size requirements, but overall there is not a huge regulatory burden to this simple division.
When dividing lots in more than just two lots, it’s time to start thinking about the potential for subdivision review by your town. Subdivision review is handled at the municipal level, generally, by a Planning Board. If subdivision review is required lots should not be conveyed until the plan is approved and the plans are recorded with the registry of deeds. Some larger subdivisions will also require state review under the Site Location of Development Act (which will be discussed at a later date).
When is subdivision review required?
To determine if subdivision review is required, we first need to look at the legal definition of a subdivision. Maine statute provides for two kinds of subdivisions, a land subdivision and a building subdivision. A land subdivision is defined as “the division of a tract or parcel of land into 3 or more lots…” 30-A M.R.S.A. § 4401(4)(emphasis added). Initially, Maine’s Supreme Court has held that a land subdivision does not include the division of building, “in defining a subdivision as involving the creation of ‘lots’ from a ‘parcel of land’, the statute refers unmistakably to an interest on the ground.” Town of York v. Cragin, 541 A.2d 932 (1988).
Since the Cragin case, the subdivision definition has been amended to include building divisions. Section 4401(4) provides three circumstances in which a building is divided that would require subdivision review; “division of a new structure”, “construction or placement of 3 or more dwelling units” and finally, “division of an existing structure or structures previously used for commercial or industrial use into 3 or more dwelling units”.
There are exceptions to the above definition such. For example, gifts to relatives, conveyance to governmental body, transfers to conservation organizations like land trusts, transfers for conservation purposes. So really a land division will require an analysis of the full facts behind the division to determine if full municipal review is required.
You need to go through municipal subdivision review, now what?
A key justification behind subdivision review is the idea of ensuring new development is not going to place an undue burden on public resources. Each additional unit of housing is going create added burden on public resources like roads, sewer, public safety departments, etc. Subdivision review requires developers and municipalities to take those impacts into account. A large part of the review process is going to involve discussing these issues. Further, subdivision review is also going to look at the proposals impacts on natural resources, such as wetland and water bodies.
Once you determine that your division is subject to subdivision review, what does that mean for you? Subdivision review requires detailed submissions of site plans showing the new lots, any private roads, common areas to be managed by a homeowner’s association (HOA). Documents will need to be drafted laying out how any common areas will be managed. The HOA should be in place prior plan approval.
To conclude, the division of real estate requires serious consideration and planning. A full subdivision requires a team of qualified professionals to be successful. Consult with a real estate and land use attorney if you own a lot that you would like divided.
*Blog posts are meant to be brief introductions to legal issues. All posts are for educational purposes and are not a substitute for direct consultations with an attorney regarding your situation.