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Underwriting Manual: TX

15.40

Plats Of Subdivisions

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Underwriting Manual Subtopic
15.40.1

In General

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Underwriting Manual Subtopic
15.40.2

Dedicated Areas

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Area formally dedicated and accepted. If the dedicated area has been formally accepted by any public authority the area must be considered public property (fee or easement). Any attempted sale of the same would be governed by the legal dispositions that regulate the sales of property held by political bodies for public purposes.Area formally dedicated but never accepted.Even where the public authority does not accept a particular “street“,“public park“, or any other area so designated on a plat, the general rule is that the owner subdivider, by platting land and conveying lots with reference to the plat, will be estopped to deny the dedication of the areas of the tract marked on the plat as “streets”,  “public parks“, etc., as against his grantees, or will even be stopped to deny such dedication as against the public.

However, it should be noted that the approval of a subdivision plat by city or other public body is not an automatic acceptance of the “streets“, “parks“, or any other public area depicted on the plat.

The release of the dedicated area from the condition of “public property“ would require the following:·         A formal “declaration of rejection or abandonment“ executed by the proper authority.·         A formal “declaration of revocation“ executed by the owner or developer of the platted area.·         The express written consent of all of the record owners (100%) and mortgagees (100%) and parties in interest (100%) of every lot or part of lot that constitute the subdivision.Area formally dedicated for private use or not dedicated but shown marked for a specific use. Any dedication or reservation for the exclusive use of the owners of lots within the subdivision does restrict the right of the subdivider to use, sell, or encumber the dedicated or reserved area.

Any lot owner in the subdivision has a private right to have the are used as platted and may obtain a court order forbidding any other use.

Any attempted sale of any reserved (marked) land must be formally consented by all of the record owners (100%) of lots or parts of land that constitute the subdivision.
Underwriting Manual Subtopic
15.40.3

When Streets as Shown on the Recorded Plat of the Subdivision Are Not Dedicated for Public Use

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Each lot purchaser automatically acquires an easement of passage over the streets and alleys on the recorded plat or map of the subdivision, even though the deed to the lot makes no mention of such right.There is no need to raise the “lack if access“ exception as long as the subdivision itself, as a whole or unit, has access to any public street or road.
Underwriting Manual Subtopic
15.40.4

Insuring The Whole Plat Of A Subdivision

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The use of the following description would result in the insurance of the whole subdivision:“All of Blackacres, a subdivision of land in ________________ (city, if within one), County , State of _____________, according to the recorded plat thereof. “It should be taken into consideration that, when insuring the whole plat of a subdivision, if the legal description being used refers exclusively to the name of the subdivision without specifically stating the lot numbers contained within the same, it becomes indispensable to show, among others, the following exceptions in Schedule B:
  • “All those portions of the property dedicated for public roads by the recorded plat of said subdivision. “
  • “All those portions of the property, if any, dedicated for (park, public use, etc.) purposes by the recorded plat of said subdivision. “
  • “All the easements, setback lines and restrictions established by the recorded plat of said subdivision. “
In addition, the description in Schedule A should also expressly except those portions of the land described in Schedule A, if any, which are not vested in the owner stated in the (commitment) (policy).NOTE: A more precise and less dangerous manner to insure the whole are is to describe it as follows;“Lots 1 to 24, inclusive, in Block 1; Lots 1 to 17, inclusive, in Block 2, in Blackacres, a subdivision of land in . . . “By simply not including in the description of the property the parcels marked for “public use“,“park purposes“, or “reserved“, and any are dedicated for public or private roads, it does not become necessary to set up exceptions for utility easements, restrictions, setback lines and anything else that actually might effect the described lots. Plats-Dormant Subdivisions - HB 3161 (effective 6/14/01)
Amended Section 232.002, Local Government Code, provides that the approval of a subdivision plat by a county commissioners court expires fifty years after approval if no portion of the land subdivided under the plat is sold or transferred before January 1 of the 51st year after the year in which the plat was approved.
Underwriting Manual Subtopic
15.40.5

Title Insurance Guidelines Relative to the Examination of Platted Lands

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The following items must be considered:
  • Whether the “dedicator“ or “subdivider“ owned all the land within the plat prior to the recording thereof.
  • Whether the land was affected by any lien or encumbrance, and whether the same was properly  released or the lender joined the plat by signing it.
  • Whether the plat was executed and acknowledged by the owner of the land and his/her spouse.
  • Whether the plat was executed and acknowledged by an mortgagee (if any) and by any other party in interest (if any).
  • Whether any city, county, state, or federal authority, agency or department had to consent, approve or authorize the plat.
  • Whether the plat of the subdivision has legal access to any legally established public street or road.
  • Whether access to the platted subdivision is by means of an appurtenant easement, and whether the easement has been legally established.
  • Whether the plat, either by formal dedication or by depiction establishes building lines, easements, covenants or restrictions, streets, alleys or roads.
  • Whether the plat contains any “dedicated“ area (park, school, church, square, etc.) or any “reserved“ area.
  • Whether there is any reservation in favor of the developer.
  • Whether there is any overlap between the land occupied by the subdivision and the land of any adjoining property.
  • Whether the rights of the lot owners have not been violated in connection with any attempted change or correction of the plat subsequent to its execution and recording.
  • Whether unpaid or delinquent taxes and assessments are affecting the whole subdivision.
  • Whether any conveyance of any part of the subdivision was made prior to the recording of the plat.
  • Whether any part of the platted area has been replatted or resubdivided.
Underwriting Manual Subtopic
15.40.6

Requirements for Plats

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See Tex. Local Gov. Code Sec. 212.004 and 232.0015. (a) The owner of a tract of land located within the limits or in the extraterritorial jurisdiction of a municipality who divides the tract in two or more parts to lay out a subdivision of the tract, including an addition to a municipality, to lay out suburban, building, or other lots, or to lay out streets, alleys, squares, parks, or other parts of the tract intended to be dedicated to public use or for the use of purchasers or owners of lots fronting on or adjacent to the streets, alleys, squares, parks, or other parts must have a plat of the subdivision prepared. A division of a tract under this subsection includes a division regardless of whether it is made by using a metes and bounds description in a deed of conveyance or in a contract for a deed, by using a contract of sale or other executory contract to convey, or by using any other method. A division of land under this subsection does not include a division of land into parts greater than five acres, where each part has access and no public improvement is being dedicated.  (See also 232.0015 discussed later in this section.)
 
   (b) To be recorded, the plat must:
 
   (1) describe the subdivision by metes and bounds;
 
   (2) locate the subdivision with respect to a corner of the survey or
   tract or an original corner of the original survey of which it is a
   part; and
 
   (3) state the dimensions of the subdivision and of each street, alley,
   square, park, or other part of the tract intended to be dedicated to
   public use or for the use of purchasers or owners of lots fronting on
   or adjacent to the street, alley, square, park, or other part.
 
   (c) The owner or proprietor of the tract or the owner's or proprietor's agent must acknowledge the plat in the manner required for the acknowledgment of deeds.
 
   (d) The plat must be filed and recorded with the county clerk of the county in which the tract is located.
 
   (e) The plat is subject to the filing and recording provisions of Section 12.002, Property Code.NOTE: Under Local Government Code 232.0015 platting outside of Cities (SB 710; Sections 232.0015, Local Government Code) Effective 9/1/99
The law now requires platting if an owner divides land into two or more parts to lay out a subdivision, lots, or streets, alleys, squares, parks, or other parts to be dedicated to public use or for use of owners fronting on the parts. The law exempts sales of tracts exceeding 10 acres in area if the owner does not lay out part of the land for use by the public or adjoining owners (e.g. streets or parks). [See new exemptions from platting with County in Exhibit 4]Company Policy: The title insurance policy does not insure against subdivision violations unless a notice of enforcement appears in the public records.
Underwriting Manual Subtopic
15.40.7

Replatting

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See Tex. Local Gov. Code Sec. 212.014

 

A replat of a subdivision or part of a subdivision may be recorded and is controlling over the preceding plat without vacation of that plat if the replat:
 
   (1) is signed and acknowledged by only the owners of the property being
   replatted;
 
   (2) is approved, after a public hearing on the matter at which parties
   in interest and citizens have an opportunity to be heard, by the
   municipal authority responsible for approving plats; and
 
   (3) does not attempt to amend or remove any covenants or restrictions.

See also Texas Bulletin TX2013007 -  LEGISLATIVE UPDATES 2013 Part II relating to expediting the subdividing of property without vacating the plat from a city of more that 1.9 million (Houston and Dallas) to 1.3 (San Antonio).

Underwriting Manual Subtopic
15.40.8

Penalty for Not Platting

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See Tex. Prop. Code Sec. 12.002

 

a) The county clerk or a deputy of the clerk with whom a plat or replat of a subdivision of real property is filed for recording shall determine whether the plat or replat is required by law to be approved by a county or municipal authority or both. The clerk or deputy may not record a plat or replat unless it is approved as provided by law by the appropriate authority and unless the plat or replat has attached to it the documents required by Subsection (e) or by Section 212.0105 or 232.023, Local Government Code, if applicable. If a plat or replat does not indicate whether land covered by the plat or replat is in the extraterritorial jurisdiction of the municipality, the county clerk may require the person filing the plat or replat for recording to file with the clerk an affidavit stating that information.
 
   (b) A person may not file for record or have recorded in the county clerk's office a plat or replat of a subdivision of real property unless it is approved as provided by law by the appropriate authority and unless the plat or replat has attached to it the documents required by Section 212.0105 or 232.023, Local Government Code, if applicable.
 
   (c) Except as provided by Subsection (d), a person who subdivides real property may not use the subdivision's description in a deed of conveyance, a contract for a deed, or a contract of sale or other executory contract to convey that is delivered to a purchaser unless the plat or replat of the subdivision is approved and is filed for record with the county clerk of the county in which the property is located and unless the plat or replat has attached to it the documents required by Subsection (e) or by Section 212.0105 or 232.023, Local Government Code, if applicable.
 
   (d) Except in the case of a subdivision located in a county to which Subchapter B, Chapter 232, Local Government Code, applies, Subsection (c) does not apply to using a subdivision's description in a contract to convey real property before the plat or replat of the subdivision is approved and is filed for record with the county clerk if:
 
   (1) the conveyance is expressly contingent on approval and recording of
   the final plat; and
 
   (2) the purchaser is not given use or occupancy of the real property
   conveyed before the recording of the final plat.
 
   (e) A person may not file for record or have recorded in the county clerk's office a plat or replat of a subdivision of real property unless the plat or replat has attached to it an original tax certificate from each taxing unit with jurisdiction of the real property indicating that no delinquent ad valorem taxes are owed on the real property. This subsection does not apply if more than one person acquired the real property from a decedent under a will or by inheritance and those persons owning an undivided interest in the property obtained approval to subdivide the property to provide each person with a divided interest and a separate title to the property.
 
   (f) A person commits an offense if the person violates Subsection (b), (c), or (e). An offense under this subsection is a misdemeanor punishable by a fine of not less than $ 10 or more than $ 1,000, by confinement in the county jail for a term not to exceed 90 days, or by both the fine and confinement. Each violation constitutes a separate offense and also constitutes prima facie evidence of an attempt to defraud.
 
   (g) This section does not apply to a partition by a court.