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It is only after the well reviewed plat is recorded that you discover that misspelled word, (it hides until the plat is recorded) or the client realizes that they may need to change a lot line, set back, or reduce a common area.  Making a change to a plat, when everything is still owned by the developer can be fairly simple.  Making changes after lots have been conveyed may be complicated as certain equities and implications may have taken affect.

Certainly everyone recognizes that restrictions and restrictive covenants control what you can build and what you can do with your real property. The subdivision plat, however, is not readily identified as a restrictive instrument, but usually as a descriptive reference for the lots and dedication of the access.  The subdivision plat, however, is often intended to have a restrictive effect.  An easy example would be the inclusion of building set back lines shown on the plat.  These set back lines become a restriction on where the improvements can be located on a lot.  

It has become common place not to explicitly convey an easement to a lot purchaser, when the conveyance is according to a recorded map detailing lots, streets and roads.  The certifying attorney reviews the dedication to the public of the roads and rights of way and concludes that easements have been created.  This assumption is correct even if those street and roads have not been taken over by the public, because such a conveyance by a developer impliedly grants a private easement to the purchaser to use those roads and rights of way for purposes of ingress and egress.[i]   This implied dedication, however, does not limit itself only to easements and rights of way and can include common area, parkland, playgrounds and other amenities shown on the plat.  

In the Cleveland Realty Company v. Hobbs[ii], the court stated:

Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into streets, lots, parks and playgrounds, a purchaser of a lot or lots acquires the right to have the streets, parks and playgrounds kept open for his reasonable use, and this right is not subject to revocation except by agreement. Steadman v. Pinetops, 251 N.C. 509, 112 S.E.2d 102; Conrad v. West End Hotel & Land Company, 126 N.C. 776, 36 S.E. 282. It is said that such streets, parks and playgrounds are dedicated to the use of lot owners in the development. In a strict sense it is not a dedication, for a dedication must be made to the public and not to a part of the public. Jackson v. Gastonia, 246 N.C. 404, 98 S.E.2d 444. It is a right in the nature of an easement appurtenant. Whether it be called an easement or a dedication, the right of the lot owners to the use of the streets, parks and playgrounds may not be extinguished, altered or diminished except by agreement or estoppel.  Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Todd v. White, 246 N.C. 59, 97 S.E.2d 439.

This is true because the existence of the right was an inducement to and a part of the consideration for the purchase of the lots. Hughes v. Clark, 134 N.C. 457, 46 S.E. 956, 47 S.E. 462; Conrad v. West End Hotel & Land Co., supra. Thus, a street, park or playground may not be reduced in size or put to any use which conflicts with the purpose for which it was dedicated. Home Real Estate Loan & Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13; Conrad v. West End Hotel & Land Co., supra. 

This is especially true when a developer has recorded a plat that shows a common area, and has conveyed out several lots.   The developer could not re-subdivide this common area into additional lots without the prior platted lot owners releasing their interest in the property or joining in the re-dedication.  There is not an easy solution to this unanimous requirement, but a prudent draftsman could include in a declaration of covenants, conditions and restrictions, prior to any transfers, a means to facilitate less then a majority requirement to change or alter the plat(s) even after lots are conveyed to purchasers.  This ability to change the plat and alter common areas and park land will be limited by the recent case of Ledges v. Armstrong[iii] and as such any resulting changes should be reasonable in light of the previous development scheme.

It is not only the developer that can cause an implied dedication when he transfers lots.  A release deed from a lender of a lot sold to a purchaser using the recorded plat as a descriptive reference will be considered an implied consent to the dedication.[iv]  Thus a subsequent foreclosure of a superior deed of trust will not foreclose the easement dedication because of the implied waiver of the lender’s rights due to the descriptive reference and resulting implication. [v]

These resulting implied appurtenant easements are created by less then traditional means yet are subject to the traditional rules of conveyancing.[vi]  Therefore, amenities such as parkland and playgrounds, shown on a plat, must be particularly described and not ambiguous.[vii]  A vague description without boundaries entitled parkland on a recorded plat did not result in an implied easement because the property was not adequately described.[viii] 

Implied easements and dedications protect purchasers and allow them some equitable protection from the whims of the developer, or the unanticipated financial failure of the same. Yet as a servitude on the fee, the ‘same’ can be lessened with some insight and planning.  These appurtenant easements are much like wild mushrooms, you need to know exactly what they look like before you plan dinner. So like any other conveyance you should use care when examining or creating. 

 

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