Subdividing Question

[FireFly]

I think I may need a real estate lawyer for this but I'm going to post the question here anyway to see if someone has any idea how to get out of the mess we're in...

My father has a half section of land he would like to bequeath to everyone in his will. However, my brother and mom are the only other names on the title currently and my brother also has a mortgage on it. My sister and I are uninterested in putting our names on the land due to the debt my brother already has against it.

My mother is hoping to talk some sense into my father as she would like my husband and I to build on the land so we're close to the family but we can't build if our names aren't on the title.

How hard would it be to subdivide into odd amounts? For example, we're thinking that if we subdivide the front 1/8 section off (approx 80 acres) into three lots, my brother's mortgage can go on his property and my sister and I would each have our own small piece and then the title for the rest of the land could be put into all of our names. Is this even feasible or totally impossible?

Thanks!

[You Need a Thneed]

You will likely have to talk to the municipality about the possibility of subdivision.

I imagine you will have to subdivide before you are allowed to build more than one dwelling on a property.

It's probably possible, but I doubt it will be a simple journey, unfortunately.

It depends on exactly where the land is, and what the municipality has in mind for the land.

Good Luck!

[GP_Matt]

It definitely depends on the county.
Some counties don't want to subdivide land into parcels that are too small for agricultural use.
By default a mortgage on the whole property will transfer to all the parcels. The bank will want this unless you can show that the property that retains the mortgage is worth more than the value of the mortgage.

If you are not planning to develope right away you have an option to get your name on the title without assuming your brothers debt. There are two main ways to hold title to real property. Tenants in Common and Joint Tenancy.
Joint tenancy means that you share your interest in the land. Tenants in common gives you a specific interest.
It has been a while since I looked at this stuff but I think tenants in common allows you to mortgage only the specific share that you own. Although, again the bank will be loath to relinquish their interest in the whole title unless it is only worth a fraction of the value of the land.

Another consideration with subdivision applications is that that is the only time the county can make demands on the land. The conditions can involve taking a large chunk of the land as an environmental reserve, taking municipal reserves or road right of ways. They can also ask you to build a county grade road or provide services.

[bizaro86]

For better advice, you'll need to tell us what County or Municipal District the land is in. Answers will range from "complicated but easily doable" to "not a chance in hell" depending on this information.

[FireFly]

It's in Mountain View County actually. And the land is not condusive to agricultural use. A pervious application resulted in them asking for a county grade road but that was to subdivide out what was on the south side of the creek where there was no road access. We're now looking to subdivide out the front 1/8th that attaches to the pre-existing road.

Technically we're allowed 2 dwellings per 1/4 section so a total of 4 currently. However again, with the land not in my name, no bank will give me a mortgage to build.

[FireFly]

Also, the current mortgage is only worth a fraction of the total value of the land; however the land would be worth even more if it were subdivided.

[bizaro86]

Mountain View County would likely allow you to remove 1 parcel from each quarter section relatively easily. To take more than that out of a quarter section would likely require changes to land use, engineering studies, and dedication of municipal reserve land/fees.

From their most recent guidelines:

2.3.5 The "first parcel out" of a previously unsubdivided quarter section is not permitted by right, but shall be generally supported by the County for the creation of one additional parcel, subject to redesignation and/or subdivision application and the provisions of the Land Use Bylaw and the MDP.

2.3.6 The base density of the Agricultural Land Use District is one (1) titled lot per quarter section.

2.3.7 The minimum parcel size for a new agricultural parcel shall be 8.09 hectares (20 acres). Parcel configuration should reflect the existing conditions and use of the land, and shall require redesignation to the appropriate land use district and a concurrent subdivision application

.

Source: http://www.mountainviewcounty.com/me...ubdivision.pdf

Assuming you have agricultural zoning, which is likely even if the land isn't very good for agriculture, then you could take 20 acres off each quarter and keep agricultural zoning.

However, there are two other options.

1) Single lot residential separation (max 3 acres).

2) Farmstead separation
This allows for between 2 and 10 acres to be subdivided from agricultural land. It requires there to have been a farm house on the land for a minimum of 10 years at the time you make the application.

These options both require the subdivided parcel to be redesignated away from agricultural use.

Hope that helps.