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Local Regulations and the Subdivision of Property

April 20, 2022

Land in Florida continues to be rapidly developed due to the economic growth still taking place in the state. The housing market currently remains strong, and new residential developments (both apartments and single-family homes) are triggering more retail and commercial developments to support them. As developments of all types are moving into what have traditionally been more rural areas, it is not unusual for owners of large tracts of land to sell off parts of their land for development.

If you are buying a parcel of property in Florida, and it is only a portion of a larger tract of land owned by the seller, you may not be aware that the local government having jurisdiction over that land may be entitled to deny you permits to improve your parcel unless you comply with their subdivision regulations. Failure to comply can cause issues for your lender, cost you time and money, and delay your proposed project.

The best way for a buyer to address this issue is to get the seller to comply with these regulations as a condition to the buyer’s obligation to close. The seller will have an incentive to cooperate because the seller may also be denied future permits for their remaining portion of the land if the regulations are not followed.

Most local jurisdictions in Florida have adopted subdivision regulations governing the subdivision of property and requiring local government approval of same, with a few exceptions. The reason for this is that the local government does not want an owner selling off parts of its property without making adequate provision for access and utilities, since a buyer of such a parcel who determines that it does not have those benefits will be complaining to the local government about it.

Subdivision approval may require platting, but less formal methods may be permitted, such as so-called “lot splits.” Both are typically done with the assistance of a civil engineer and surveyor, and must follow the procedures set out in the local government’s subdivision regulations. Platting takes longer, but is a permanent solution. A “lot split” is usually allowed only once, so a parcel that has been the subject of an approved “lot split” typically cannot be further subdivided later.

Some local governments may allow the subdivision of land if it has been the subject of a preliminary or final subdivision plan, even if it is not yet platted. These plans are prepared and approved in anticipation of platting.

If a mortgage encumbers a parcel that is part of a larger property owned by a borrower, it is possible that a foreclosure of the mortgage (which would result in the transfer of title to the mortgaged parcel) would trigger a violation of local subdivision regulations. This does not mean that the mortgage cannot be foreclosed, or that title to the mortgaged parcel cannot be transferred. The County Property Appraiser will take note of the transfer of record title and will typically assign a new tax parcel number to the parcel that is transferred; however, that does not necessarily cure a subdivision violation.

The local government’s remedy for a subdivision violation is generally the withholding of governmental permits and approvals with respect to any parcel that was not legally subdivided, until the violation is cured by arranging for the parcel to comply with the regulations. Each jurisdiction’s remedies for a violation are set forth in its own subdivision regulations.

If a parcel of property is already a platted tract or lot (or multiple ones) on a recorded subdivision plat approved by the local government, it is legally subdivided. If the parcel already has its own real property tax parcel number assigned by the County, sometimes it is assumed that the parcel is in compliance with subdivision regulations, but that may not be the case. A zoning report or an estoppel letter from the local government can be obtained to confirm whether the parcel is legally subdivided. Each jurisdiction has its own requirements and fees for estoppel letters, some requiring significant lead time.

Sometimes parties to transactions involving parcels with potential subdivision issues ask for an attorney opinion on the subject. However, land use opinions can require a lot of research, can be expensive, and are not generally given under Florida custom and practice.

If you are buying or selling land that is part of a larger parcel and are concerned about the potential impact of subdivision regulations, you should consult with an experienced real estate attorney so that you can minimize the potential for an adverse impact on your proposed transaction.

Gary M. Kaleita is a shareholder at Lowndes and has been certified by the Florida Bar as a specialist in real estate law since 1993. He can be reached by phone at 407-418-6334 or gary.kaleita@lowndes-law.com.


This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Gary

With more than 30 years of experience in real estate law, including over 20 years as a Board-certified expert in the field, Gary Kaleita has acquired the ability to navigate the complexities of sophisticated real estate deals with relative ease.

Gary has a wide variety of experience in real estate development, finance and transactions, condominiums, property owners’ associations, commercial leasing, commercial lending, and title insurance.

Gary enjoys a reputation for anticipating and avoiding problems, rather than merely reacting to them. He has years of experience handling purchases, sales and financings of commercial and residential projects, including office, industrial, retail, multi-family, single-family, condominium, resort, hotel and golf course properties. Gary has prepared and negotiated contracts for sale and purchase, performed due diligence investigations, and handled all aspects of closings, including issuance of title insurance and legal opinions. He has also performed tax free exchanges (both forward and reverse) under Section 1031 of the Internal Revenue Code, and has handled closings for housing revenue bond financing transactions with the Florida Housing Finance Corporation and various local housing finance authorities.

In the area of real estate development, Gary has assisted developers in obtaining land use approvals, plat approvals and permits for various developments from a number of jurisdictions in Central Florida, including planned developments (PD’s) and Developments of Regional Impact (DRI’s). He has drafted and negotiated complex land use documents, including development agreements, cost-sharing agreements, declarations of covenants, conditions, restrictions and easements. He also has experience in mall and shopping center developments, including outparcels, and has assisted developers with the selection, formation and operation of business entities, including commercial and residential property owners associations. He has extensive experience with the formation and operation of both commercial and residential condominiums as well.

In addition, Gary has established somewhat of a boutique practice by acting as local counsel to help out-of-state lenders, investors and law firms navigate the complexities of Florida real estate law. He is frequently engaged by large national and international law firms needing assistance on a variety of issues for their clients doing business in Florida. Gary regularly provides advice on Florida law and custom pertaining to purchase and sale contracts as well as loan documents, addresses local due diligence issues, answers questions involving titles, surveys and title insurance, and provides Florida legal opinions.

Not just another real estate lawyer, before pursuing his career in law Gary served as a U.S. Naval officer on active duty for 4 years in the Mediterranean Sea, first with a patrol gunboat squadron in Italy and then at a communications station in Greece. During this period he traveled extensively throughout Europe, the Middle East and North Africa. He believes his military experience is the source of the practical approach he has developed to problem solving.

Gary also took the initiative, after a homeowner in his own neighborhood was mauled by a Florida black bear in 2013, of researching what his homeowners’ association could do to limit the likelihood of future attacks. In the process, he became an expert in the subject of “bear-wise” communities and drafted a policy that his own homeowners’ association adopted, thereby becoming the first residential community to be officially recognized as bear-wise by the Florida Fish and Wildlife Conservation Commission (FWC). He has since written and spoken extensively on this subject, serves on the FWC’s Central Bear Management Unit Stakeholder Group, and has become a resource for FWC to educate other communities on the importance of bear-wise practices in areas of Florida containing black bear habitat.

Gary focuses on finding pragmatic solutions to complex problems, recognizing that clients want sensible and realistic advice in a timely manner so they can go about their business.

Chambers USA (2015)* reports that Gary has substantial experience acting as lender’s counsel and is acclaimed by market sources as an “extremely responsive, very practical and reasonable” practitioner.


*We make no guarantees or promises that the reader will realize the same or similar results

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