Alabama Attorney General Opinion 1979-0215

OFFICE OF THE ATTORNEY GENERAL )1/40— 00Q/5- CHARLES A. GRADDICK ATTORNEY GENERAL STATE OF ALABAMA MAY 31 ling 0.44./TY WILLIAM M. 141 ItIteCUTIVI AfI AOMIMI WASOMOMO S. TuaNcie 44 1.11.11014 C14,41, Aft ALAIAMA 33333 *MIA 13081. en-also JANI3 ADMINI 1V4 A11111 Mr. Robert M. Tyson, Jr. Mayor City of Robertsdale Post Office Drawer CC Robertsdale, Alabama 36567 Municipalities -- Robertsdale, City of -- Planning Commissions Conveyance of more than one portion of a parcel of land to heirs for homestead purposes does not constitute a subdivision as contemplated in Code of Alabama 1975, 511-52-1(6). Dear Mayor Tyson: The Office of the Attorney General has received your opinion request seeking a clarification of the term "subdivision". Your request presents the following factual information: I. Farmer Jones, with 160 acres, decides to deed his three children 40 acres, with he and his wife retaining his home place and 40 acres. (a) He deeds these without compensation other than the consideration necessary for legality. (b) He deeds these with token payment from the children. Mr. Robert M. Tyson, Jr. Page Two I/. Farmer Smith, who owns 80 acres, deeds each of his four children a five-acre home site. (a) He deeds these without compensation other than the consideration necessary for legality. (b) He deeds these with token payment from the children. You ask if subdivisions would be created in situations I or II. It is the opinion of this office that there is no intent to create a subdivision in either instance I or II. Code of Alabama 1975, 511-52-1(6) provides: (6) SUBDIVISION. The division of a lot, tract or parcel of land into two or more lots, plats, sites or other divisions of land for the purpose, whether immediate or future, of sale or of building develop- ment. Such term includes resubdivision and, when appropriate to the context, relates to the process of subdividing or to the land or territory subdivided. In an interpretation of this section in an opinion to Hon. Russell B. Johnson, Planning and Industrial Development Board under date of July 28, 1960, a copy of which is enclosed, this office held: I am of the opinion that a "subdivision" is created when a person divides a tract of land into two or more lots with the intent to convey, either presently or in the future, more than one of such lots. However, a "sub- division" is not created by a person who sells or offers for sale only one lot which is part of a larger tract owned by him. Mr. Robert M. Tyson, Jr. Page Three Therefore, the answer to the first question quoted hereinabove depends upon the intent of the owner of the tract of land. If he intends to convey both lots, a "subdivision" would be created. If he intends to convey only one lot and retain the remainder of his large tract, a "sub- division" would not be created. Of course, the intent of the owner of the large tract is a question of fact which must be decided in each case. The facts presented in situations I and II clearly show that the owner of the land is dividing a tract of land into two or more lots for the purpose of distribution to heirs, not for development as a subdivision as contemplated in the quoted statute . Thus, no subdivisions are created. The amount of consideration involved in the conveyance of the land has no bearing on whether a subdivision is created. See also: Opinion to Honorable G. William Noble, Mayor of Gardendale under date of April 11, 1979. It is the further opinion of this office that, unde'r the facts as presented in your request, there are no conditions under which these lands are deeded to create a subdivision as comes within the purview of said S11-52-1(6). Your last inquiry is whether the City of Robertsdale can add a definition of the word "development" so as to exclude from subdivision regulation the transfer of property to heirs when such transfer is not for the purpose of development. It is apparent, under the facts presented in your request, that the purposes for which the transferred lands will be used are not for sale or resale, nor is the construction of a homestead by an heir considered as a development as contemplated in the statute. Any clarification of the statute, if considered necessary, should be by a rule of law either through court actions, legislation, or an opinion of this office. In this Mr. Robert M. Tyson, Jr. Page Four instance, this opinion should suffice until a contra ruling by a court of competent jurisdiction. It is hoped that this response fully answers your question. If, however, we may be of further assistance, please do not hesitate to call on us. Sincerely, CHARLES A. GRADDICK Attorney General bY-(ii4411.44410:0A.... Rand h G. Lurie Assistant Attorney General RGL:cd enc. THE ATTORNEY GENERAL STATE OF ALABAMA • MONTGOMERY, ALABAMA 3613 A. ICK Honorable G. William Noble Mayor City of Gardendale Gardendale, Alabama 35071 Municipalities - Planning and Zoning - Gardendale, City of. Leases of parcels of land for building development may create a "subdivision" for purposes of municipal subdivision regulation. Opinion by Assistant Attorney General Smith. Dear Mayor Noble; This office has received your opinion request of February 5, 1979 regarding a clarification of the subdivision.regulations of the City of Gardendale. Before answering your question, it appears that a clari- fication of the term "subdivision" is needed. In your opinion request you state: Under the subdivision regulations of the City of Gardendale when a single tract of land is divided into two par- cels a subdivision of said tract is required, or if a portion of a single tract of land is sold to another party a subdivision is required. Honorable G. William Noble Page Two It is apparent that your interpretation of your subdivision regulations is in direct conflict with the statutory authority authorizing a municipality to regulate subdivisions of land. For purposes of regulation by a municipality, the word "subdivision is defined in Code of Alabama 1975, §11-52-1 (6) as: The division of , a lot; tract orparcel:'. of land into two or more lots, plats, sites or other divisions of land for the purpose, whether immediate or future, of sale or of building development. Such term includes resubdivision and, when appropriate to the context, relates to the.process of subdividing or to the land or territory subdivided. In an opinion to Honorable Russell B. Johnson, Planning and In- dustrial Development Board, under date of July 28, 1970, a copy of which is enclosed, this office stated: I am of the opinion that a "subdivision" is Created when aperson:divides'e•tract of land into two or more lots with the intent to convey, either presently or in the future, more than one of such lots. However, a "subdivision" is not created by a person who sells or offers for sale only one lot which is a part of a larger tract owned by him. In that opinion this office concluded: If he intends to convey both lots, a "sUbdivision" would be created. If he intends to convey only one lot and re- tain the remainder of his large tract, a "subdivision" would not be created. Of course, the intent of the owner of the large tract is a question of fact which must be decided in each case. Hon. William Noble Page Three It is therefore, apparent that the City of Gardendale has no statutory authority to enforce subdivision regulations on a division of land for sale unless the owner of the large tract in question intends to convey more than one of the lots created in the•.division of land. However, the question presented in your request re, quires an' interpretation of an additional portion of Section 11-52-1(6), supra, not specifically discussed in the opinion to Honorable Russell B. Johnson, supra, Your request states: Our question is what would be the effect of a long term lease wherein the owner retained title to the property, but entered into a long term lease arrangement for development with another party? Should this be considered as a transfer of interest requiring a subdivision of the property. The answer requires consideration of the meaning of the phrases "for the purpose, whether immediate or future, , . . of building development" as found in Section.11-52-1(6), supra, • It is clear under this portion of Section 11-52-1(6) that a "subdivision" may be created without intent by the owner' to sell any portion of the land divided. Thus, an owner-of property.could create a "subdivision" by lease,. if for, the purpose of building deVelopment. However, the rationale used in the Johnson opinion would be applicable to the lease of land, as well as the sale of land: A "subdivision" is created when a person divides a tract of land into two or more parcels with the intent to lease for building development, either presently or in the future, more than one of such parcels. However, a subdivision is not created when a a person leases or offers for lease for building development only one parcel which is a part of a larger tract owned by him. It is, therefore, the opinion of this office that leases of real property may, if for purposes of building development, create a "subdivision." If the person intends to lease both parcels for building development, a "subdivision" would be .created. If the person intends to lease only one parcel and re- tain the remainder of the large tract, a "subdivision" would not be created. Of course, the intent of the owners of the large tract is a question of fact which must be decided in each case. Hon. G. William Noble Page. Four You do not ask, nor does this office by this opinion attempt to answer, whether the lessee of land might subse- quently create a "subdivision" of the leased land. Further- more, this opinion does not deal with questions which might arise should an owner of property begin building development on•his property. without the conveyance of any -interest in the land to another nor does this opinion attempt to answer problems which might be presented if a property owner sold one parcel and leased another. • I do hope that this response fully answers your question. If, however, this office may be of further assistance, please do not hesitate to call on us. Sincerely, cab A. SacMak) CHARLES A GRADDICK “ Attorney General CAG/cjs