[author: Lauren K. Keenan, Esquire]
The process of subdividing a lot is taking one existing lot and dividing it into two or more lots. Subdividing a large lot into several smaller lots can add value to the existing property (the “Parent Lot”) and is a common practice of land developers looking to maximize returns on a piece of land.
The subdivision process is typically governed by the subdivision ordinance of the county or city where the land is located. All subdivision ordinances have specific requirements that must be met (such as minimum lot size of subdivided lots, frontage requirements, etc.). Generally speaking, such ordinances are in place to add uniformity to the subdivision process and ensure the subdivided lots conform with one another.
There may be times when a property cannot qualify for subdivision under the general subdivision ordinance because it cannot meet all of the requirements within the subdivision ordinance. For example, consider a lot that is very narrow and long. If subdivided, both subdivided lots could not meet the necessary zoning requirements within the general subdivision ordinance. In such cases, a family subdivision ordinance may provide an alternative avenue to families interested in subdividing an existing lot for use by a family member or as a strategy to create additional value for future generations.
The family subdivision first came about as part of the agrarian tradition of family farmers providing lots on their own lands for their children and their children’s family. This was necessary because most of the family was dependent on the land for their livelihood, and they worked the land together so it was beneficial to live in close proximity to one another. Today, this practical reason for a family subdivision ordinance no longer exists in most places, but the ordinances remain and continue to benefit families.
Virginia Code Section 15.2-2244 authorizes family subdivisions and provides that “in any county a subdivision ordinance shall provide for reasonable provisions permitting a single division of a lot or parcel for the purpose of sale or gift to a member of the immediate family of the property owner, including family member’s spouse, subject only to any express requirement contained in the Code of Virginia and to any requirement imposed by the local governing body that all lots of less than five acres have reasonable right-of-way of not less than 10 feet or more than 20 feet providing ingress and egress to a dedicated recorded public street or thoroughfare.” Most localities in Virginia have a family subdivision ordinance in place, though they vary from one locality to the next. These ordinances are generally less restrictive than conventional subdivision laws.
There are several limitations that generally apply to family subdivision ordinances and it’s important to be aware of what they are in your locality. Virginia Code provides that under a family subdivision ordinance a lot can only be subdivided for the limited purpose of sale or gift to a member of the owner’s immediate family. The definition of immediate family might also vary depending on where you live, but Virginia Code defines it as any person who is a natural or legally defined offspring, stepchild, spouse, sibling, grandchild, grandparent or parent of the owner. A locality may choose to expand their definition of “immediate family” by including aunts, uncles, nieces and nephews.
Family subdivision ordinances only permit one such division per family member. Additionally, a locality may choose to include in its subdivision ordinance a requirement that any land to be subdivided has been owned for at least 15 consecutive years by the current owner, and that the new property owner agrees to place a restrictive covenant on the subdivided property to prohibit its transfer to a non-family member for a period of 15 years following the subdivision. Other limitations include affidavit requirements and warning label requirements for deeds. Such restrictions are generally intended to limit abuse of the family subdivision ordinance by those who might be only interested in circumventing the subdivision system.
It is important to look at the family subdivision ordinance in your specific locality to learn of any other specific limitations that might apply before deciding if this option may be right for you and your family. Family subdivision ordinances can be a useful tool to subdivide a lot and keep property within the family without having to meet all of the requirements of a general subdivision ordinance.
Lauren K. Keenan is an Associate with Bean, Kinney & Korman, P.C. in Arlington, Virginia practicing in the areas of land use law and estate planning. She can be reached at 703.525.4000 or firstname.lastname@example.org.