California Attorney General Opinion No. 79-523

1 79-523 TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General _________________________ OPINION of GEORGE DEUKMEJIAN Attorney General Warren J. Abbott Assistant Attorney General : : : : : : : : : : : No. 79-523 August 7, 1979 SUBJECT: SUBDIVISION MAP ACT—This act requires tentative and final subdivision maps to convert an existing apartment house or single family development located on one lot to a condominium even though the condominium is located on a single lot created by an earlier approved final subdivision map. The Honorable L. B. Elam, County Counsel, County of Sacramento, has requested an opinion on the following questions: 1. Are tentative and final subdivision maps required under the provisions of the Subdivision Map Act to convert an existing apartment house or an existing clustered single family development located on one lot to the form of ownership known as condominium? 2. Are tentative and final subdivision maps required under the provisions of the Subdivision Map Act if the existing apartment house or existing single family development which is to be converted to a condominium is located on a single lot created by an earlier approved final subdivision map? 2 79-523 CONCLUSIONS 1. A tentative and final subdivision map is required under the provisions of the Subdivision Map Act to convert an existing apartment house or existing clustered single family development located on one lot to condominiums if the conversion consists of creating five or more separate ownerships. 2. A tentative and final subdivision map is required under the Subdivision Map Act to convert an existing apartment house or an existing clustered single family development to condominiums of five or more ownerships, even if the structure or structures are located on a single lot created by an earlier approved final subdivision map. ANALYSIS The Subdivision Map Act (Gov. Code, § 66410 et seq.)1 sets forth the procedure for an owner to subdivide land for the purpose of sale, lease or financing. Section 66426 requires that both a tentative and final map be filed with the appropriate city or county for all subdivisions creating . . . five or more parcels, five or more condominiums as defined in Section 783 of the Civil Code, [2] or a community apartment project containing five or more parcels. . . .”3 (Emphasis added.) “Subdivision” is defined to mean “. . . the division, 1 All section references are to the Government Code unless otherwise specified. 2 Civil Code section 783 provides: “A condominium is an estate in real property consisting of an undivided interest in common in a portion of a parcel of real property together with a separate interest in space in a residential, industrial or commercial building on such real property, such as an apartment, office or store. A condominium may include in addition a separate interest in other portions of such real property. “Such estate may, with respect to the duration of its enjoyment, be either (1) an estate of inheritance or perpetual estate, (2) an estate for life, or (3) an estate for years, such as a leasehold or a subleasehold.” 3 Section 66426 provides: “A tentative and final map shall be required for all subdivisions creating five or more parcels, five or more condominiums as defined in Section 783 of the Civil Code, or a community apartment project containing five or more parcels, except where: “(a) The land before division contains less than five acres, each parcel crested by the division abuts upon a maintained public street or highway and no dedications or improvements are required by the legislative body, or “(b) Each parcel created by the division has a gross area of 20 acres or more and has an approved access to a maintained public street or highway, or “(c) The land consists of a parcel or parcels of land having approved access to a 3 79-523 by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof . . . for the purpose of sale, lease or financing, whether immediate or future except for leases of agricultural land for agricultural purposes. . . .” (§ 66424.) These provisions make it clear that any division of land, improved or unimproved, into condominiums will come within the Subdivision Map Act. If the division results in five or more units, compliance with the provisions of that Act will require the filing and approval of tentative and final subdivision maps.4 Further, two recent additions to the Subdivision Map Act leave no doubt that the Legislature considers conversion of an existing residential property into condominiums as being subject to requirements of the Act. Section 66427.1 (added by Stats. 1976, ch. 890) prohibits the approval of “ . . . a final map for a subdivision to be created from the conversion of residential real property into a condominium project or a community apartment project . . . .” unless (1) the city or county finds that notice of the proposed conversion was given to the tenants and (2) each of the tenants was given notice of an exclusive right to purchase his or her unit.5 Section 66427.2 (added by Stats. 1977, ch. 923 public street or highway which comprises part of a tract of land zoned for industrial or commercial development, and which has the approval of the governing body as to street alignments and widths, or “(d) Each parcel created by the division has a gross area of not less than 40 acres or is not less than a quarter of a quarter section. “A parcel map shall be required for those subdivisions described in subdivisions (a), (b), (c), and (d).” 4 The division of land into fewer than five or more units would require the preparations of a parcel map unless a local ordinance, as authorized by section 66428 either requires the filing of a tentative and final map or waives the preparation of a parcel map. 5 Section 66427.1 provides: “The legislative body shall not approve a final map for a subdivision to be created from the conversion of residential real property into a condominium project or a community apartment project unless it finds both that: “(a) Each of the tenants of the proposed condominium or community apartment house project has been or will be given 120 days’ written notice of intention to convert prior to termination of tenancy due to the conversion or proposed conversion. The provisions of this subdivision shall not alter or abridge the rights or obligations of the parties in performance of their convenants, including, but not limited to the provision of services, payment of rent or the obligations imposed by Sections 1941, 1941.1 and 1941.2 of the Civil Code. “(b) Each of the tenants of the proposed condominium or community apartment house project has been or will be given notice of an exclusive right to contract for the purchase of their respective units upon the same terms and conditions that such units 4 79-523 and amended by Stats. 1978, ch. 209) provides that unless an applicable general or specific plan contain definite objectives and policies specifically directed to the conversion of existing buildings to condominium projects, the findings required by sections 66473.5, 66474, 66464.61 and 66464.60 (c) relating to consistency with general and specific plans, is not required.6 (See also the penultimate paragraph of § 66477.) Thus, there is no doubt that the Legislature intended that the conversion of an existing building to condominiums constitutes a subdivision within the meaning of the Subdivision Map Act. This would apply irrespective of the form of the existing residential building that is to be converted, whether apartment house or a clustered single family development located on a single lot. Indeed, the courts and earlier opinions of this office have always concluded that condominium projects come within the requirements of the Subdivision Map Act. Thus, in Norsco Enterprises v. City of Fremont (1976) 54 Cal. App. 3d 488, a developer sought a use permit and approval of a tentative subdivision map for conversion of 124 apartment units into condominiums, involving no physical change for the complex. The court stated (54 Cal. App. 2d 492): “Treated as condominiums, the project concededly was a ‘subdivision,’ as contemplated by section 11546 [of the Business and Professions Code]. During the pertinent period, Business and Professions Code section 11535.1 (enacted 1963, repealed, and reenacted 1974 in substantially similar form, as Gov. Code, § 66424, operative Mar. 1, (1975) will be initially offered to the general public or terms more favorable to the tenant. The right shall run for a period of not less than 60 days from the date of issuance of the subdivision public report pursuant to Section 11018.2 of the Business and Professions Code, unless the tenant gives prior written notice of his intention not to exercise the right. “(c) This section shall not diminish, limit or expand, other than as provided herein, the authority of any city, county, or city and county to approve or disapprove condominium projects.” 6 Section 66427.2 states: “Unless applicable general or specific plans contain definite objectives and policies, specifically directed to the conversion of existing buildings into condominium projects, the provisions of Sections 66473.5, 66474, and 66474.61, and subdivision (c) of Section 66474.60 shall not apply to condominium projects which consist of the subdivision of airspace in an existing structure, unless new units are to be constructed or added. “This section shall not diminish, limit or expand, other than as provided herein, the authority of any city, county, or city and county to approve or disapprove condominium projects.” 5 79-523 provided: ‘. . . “subdivision” includes a condominium project, as defined in Civil Code Section 1350, containing five or more condominiums, as defined in Civil Code Sections 783, . . .’” Also, in County of Los Angeles v. Hartford Acc. & Indem. Co. (1970) 3 Cal. App. 3d 809, suit was brought on the bond posted by the developer designed to insure payment of taxes and special assessments as required by section 66493 (formerly Bus. & Prof. Code, § 11601) as a condition to recording the final tract map. The owner of a large apartment building decided to convert it from rental apartments to condominium units. The court had no hesitancy in concluding that condominium projects are subdivisions for purposes of the Subdivision Map Act. (3 Cal. App. 2d at 814.) This office in 58 Ops. Cal. Atty. Gen. 41, 44 (1975) concluded that a condominium is merely a form of property ownership and that condominiums and the conversion of other forms of ownership thereto are subject to the Subdivision Map Act. Previously in 15 Ops. Cal. Atty. Gen. 79 (1951), 38 Ops. Cal. Atty. Gen. 129 (1961) and 39 Ops. Cal. Atty. Gen. 82 (1962) we concluded that the subdivision of land, improved or unimproved, into condominiums or community apartments was subject to the provisions of the Subdivision Map Act. In an unpublished letter opinion (I.L. 62–98, June 12, 1962) we reexamined and reaffirmed those opinions and the conclusions relating to condominiums and the Subdivision Map Act. Finally, in another unpublished opinion (I.L. 75–12, January 27, 1975) we concluded that conversion of an apartment to condominiums was a subdivision within the meaning of the Subdivision Map Act and therefore, by statutory definition, constituted a development within the meaning of the California Coastal Zone Conservation Act of 1972. The second question presented relates to whether the Subdivision Map Act applies in the case of a condominium conversion when the existing structure to be converted is located on a single lot contained in a subdivision which has received final subdivision map approval from the appropriate city or county. In our view, the above analysis would apply. By statute, a tentative and final map is required for all subdivisions creating five or more condominium units (§ 66426) and a subdivision means a division of any unit or units of improved or unimproved land for the purpose of the sale, lease or financing (§ 66424). The fact that the structure to be converted is located on a properly subdivided lot is irrelevant, since the conversion itself constitutes a separate subdivision. *****