Focus, Law, and Real Estate

Land Division Act could lead to lawsuits

Whether stacking division and re-division rights is legal is up for interpretation.

January 30, 2015
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Vagueness in the 1997 Land Division Act might soon lead to court battles if the Michigan legislature doesn’t step in with a bill clarifying the law’s intent.

Mika, Meyers, Beckett & Jones attorney Ronald Redick said the Land Division Act specified the number of divisions and re-divisions allowed for a continuous piece of land under common ownership, but it did not provide an indication of whether those divisions and re-divisions could be used together.

“In 1997, the concept of a parent parcel was developed, which means continuous land under common ownership as of March 31, 1997,” Redick explained. “Based on parent parcels that existed as of that date, there is a certain number of times that land can be divided without going through the more elaborate platting process.”

The splits depend on the size of the land. A landowner is eligible to create four parcels from a 10-acre parcel and one additional parcel for each full 10 acres after that.

“If you have a 20-acre parcel, you could create five parcels through division,” Redick explained. “(With a) 30-acre parcel, you could create six resulting parcels through division.”

The act also included re-division rights after a 10-year period.

“At that time, you can take some more divisions without going through the platting process,” Redick said.

He noted the confusion arises with those re-division rights.

“Let’s suppose somebody took a number of divisions in the year 2000 but not all of the divisions they could have taken,” he said. “Then 10 years later, they seek to exercise re-division rights. The question is, do you still get all of the original divisions you were entitled to plus the re-division rights, or are you only allowed to take one or the other?”

Receiving all the division and re-division rights is called stacking.

“Just about everybody who has examined this issue has decided the intent of the legislation on this point is nearly impossible to discern, whether stacking was intended or not,” he said.

“My personal view on the subject is that stacking is probably not in the intended result. The result is, you get to take the maximum of whatever your original divisions are or your re-division rights, whichever is greater, but not both.”

Redick said developers tend to fall on the side of allowing stacking, while municipalities tend to oppose that interpretation.

“It is probably going to result in lawsuits to resolve this because the act as written is indecipherable on this point,” he said.

Redick noted this is just now becoming an issue because not until 2007 was a piece of land eligible for re-divisions based on the 1997 law.

He said it would be advantageous if the Michigan legislature stepped in and passed a bill clarifying whether or not stacking can occur.

“It’s important for the legislature to address this because it is more beneficial than private parties having to incur the cost of litigation to sort it out on a case-by-case basis,” he said.

Currently, the legislature does not have any bills pending that would clarify the intent of the Land Division Act on this issue.

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