Does an overall metes and bounds description result in a merger?

[dedkad]

I'm going to call this a hypothetical situation because I don't have all the details. One lot was originally created circa 1945 by deed. The other lot came about, say in 1950, by being a remnant of a different deed, and was never deeded out on its own.

In 1984 the two lots were deeded over to one party using a single metes and bounds description that encompassed the entirety of both lots. Did this action by the owner result in a merger?

I've read Civil Code section 1093, which provides as follows:  “Absent the express written statement of the grantor contained therein, the consolidation of separate and distinct legal descriptions of real property contained in one or more deeds, mortgages, patents, deeds of trust, contracts of sale, or other instruments of conveyance or security documents, into a subsequent single deed, mortgage, patent, deed of trust, contract of sale, or other instrument of conveyance or security document (whether by means of an individual listing of the legal descriptions in a subsequent single instrument of conveyance or security document, or by means of a consolidated legal description comprised of more than one previously separate and distinct legal description), does not operate in any manner to alter or affect the separate and distinct nature of the real property so described in the subsequent single instrument of conveyance or security document containing either the listing of or the consolidated legal description of the parcels so conveyed or secured thereby.” This code section was created in 1985, which was after the subject deed occurred.

In PEOPLE BROWN v. TEHAMA COUNTY BOARD OF SUPERVISORS, the appeals court considered a similar situation with two parcels being described with one metes and bounds description. If you read the findings in this link http://caselaw.findlaw.com/ca-court-of- ... 26735.html and look at Section C.1 (Parcel Counting - Section 10) you'll see that for various reasons the appeals court constituted that this situation resulted in a merger. They looked at intent and considered the use of "lot" in the singular instead of plural to indicate intent of the deed, they noted that neither lot in this case was ever deeded out separately, and they indicated that even though the legislature expressed the contrary, Civil Code 1093 could not be applied retroactively.

These are some of my questions.
1. How narrow or broad is the Brown v. Tehama decision applied with your local jurisdictions? For instance, do all factors in the case need to be met to consider it a merger (plural vs. singular description of "lot", no previous separate deeds, metes and bounds description, pre-1985 deed when Civil Code 1093 was enacted, etc.), or just some of them.
2. What if one lot was previously deeded out separately but the other wasn't, as in my hypothetical case?
3. What if both lots were previously deeded out together in a single deed but were described separately, such as Lot 1 and 2 of ..., in the legal description of that deed? Does People v. Brown apply in that case?
4. If you deed out the following "real property" as opposed to "real properties", does that indicate intent to only end up with one parcel?
5. Since we are talking hypothetical, what if the metes and bounds deed had occurred after 1985, when that Civil Code section was created?

[dmi]

no unless the SMA provisions on merger have been overturned by the Brown v Tehama.

[William Magee]

Dedkad, you stated that the court made the following finding: "they indicated that even though the legislature expressed the contrary, Civil Code 1093 could not be applied retroactively "

However, this is not really the case. The court questioned whether 1093 is retroactive, however the court explicitly stated the following:

"while we have reason to question the declaration's accuracy, there is no need here to actually determine whether section 1093 accurately expresses the law as it was before 1986. Accordingly, we will assume for purposes of this case that it does"

It is also key to understanding Brown v Tehama, that the original parcels in question were split by deed into fractions and remainders. The court found that this fractionalized partioning of the original lots resulted in the resulting actual parcel sizes and quantities. Basically the owners redivided the lots and the court ruled the original lots boundaries ceased to exist due to the apparent intent of redivision and reconfiguration.

This is unlike the hypothetical situation you propose and it is clear in the court's decision that the legislative finding of 1093 being declatory of existing law was not overturned by the case, even though the justices questioned it.

[dedkad]

dmi wrote:
> no unless the SMA provisions on merger have been overturned by the Brown v
> Tehama.

Can you direct me to the section(s) in the SMA that address voluntary mergers by the Owner? All the sections I see seem to relate to an agency-initiated merger.

[dedkad]

William - This is where it gets tricky:

"We are not inclined to create a rule of common law from whole cloth and apply it to transactions that occurred more than 100 years ago.   Moreover, we are particularly reluctant to extend the rule stated in Civil Code section 1093 to situations beyond the scope of the statutory language because, notwithstanding the Legislature's assertion in the statute, we have reason to question whether the rule stated in the statute actually existed before the statute was enacted.   No one has cited, nor have we found, any authority (other than Civil Code section 1093 itself) supporting the assertion that before 1986, a consolidated legal description used in a deed to convey two or more parcels that had previously been separately and distinctly described in one or more instruments of conveyance or security documents could not be deemed to merge the preexisting parcels absent an express written statement of the grantor contained in the later deed.   In other words, we have found no evidence that the rule stated in Civil Code section 1093 was the law before the statute was enacted.

As far as we can determine, historically the law that governs the interpretation of deeds has been that “the intention of the parties is the controlling consideration” (Machado v. Title Guarantee and T. Co., supra, 15 Cal.2d at p. 186, 99 P.2d 245), and “[i]n construing a doubtful description in a grant, the court must assume as nearly as possible the position of the contracting parties, and consider the circumstances of the transaction between  them, and then read and interpret the words used in the light of these circumstances” (Thompson v. Motor Road Co., supra, 82 Cal. at p. 501, 23 P. 130).   This law did not make an express statement of merger by the grantor an absolute prerequisite to finding an intent to merge two or more previously separate parcels. The Legislature's assertion that a statute is declaratory of existing law does not make it so, if the law found in the code books and case books does not in fact support that assertion.   Nevertheless, because the validity of Civil Code section 1093, as it applies to the situations specifically described in the statute, has no bearing on the outcome of this case (as will be shown), we need not actually determine whether the Legislature's assertion in the statute was accurate.   We do, however, conclude the apparent absence of any law consistent with the antimerger rule in Civil Code section 1093 prior to the statute's enactment is further reason for us to decline the county defendants' request that we recognize an analogous antimerger rule that applies to fractional parcels that have never before been separately and distinctly described, and that we apply that rule to transactions that occurred more than 100 years ago. - See more at: http://caselaw.findlaw.com/ca-court-of- ... U3iSK.dpuf"

[Warren Smith]

The owner-initiated merger would be one that is provided for in a local ordinance. The SMA provisions outline the requirements - particularly notices to affected owners - but if an owner applies for what is usually termed a "voluntary" merger, the local ordinance should authorize the general procedure.

This would be pursuant to section 66451.21

[steffan]

dedkad wrote:
> dmi wrote:
> > no unless the SMA provisions on merger have been overturned by the Brown v
> > Tehama.
>
> Can you direct me to the section(s) in the SMA that address voluntary mergers by the
> Owner? All the sections I see seem to relate to an agency-initiated merger.

66499.20.3 provides for owner initiated merger, but it requires the local agency have an ordinance in place to be effective.

Warren, 66451.21 pertains to the process for creation of ordinance for agency only initiated mergers.

[dedkad]

I'm researching the local ordinances now (lots of gaps, unfortunately, that will take many hours or research to fill in). It appears the time period for a city-mandated merger pursuant to the SMA has long since passed (assuming these were non-conforming lots at the time). According to the City regs I could find, it looks like either a LLA or a Notice of Merger would need to have been recorded to effectuate a merger. Honestly, I don't care if they have one lot or two. I just don't want to risk a lawsuit if Brown v. Tehama overrides the City regs if someone can argue that the intent of owner was to merge the lots when they deeded them together with a single metes and bounds description.