Have you ever noticed that the things we see most often can, over time, become less visible? Like a dent in the fender of an old truck, it fits, like its been there forever, so we pay it no attention. Recently I helped a client sell his home of many years (which included two houses, two garages and two shop buildings) by subdividing it into two separate parcels. When we received the subdivision plat back from the surveyor it included several “standard” county-supplied plat notes. I’ve seen them a hundred times, so, like the dent in the fender, didn’t really give them much thought at first. But then, while going over the survey with a prospective buyer, these caveats came into focus – and simultaneously, became less clear.
Maybe I should back up just a little here and clarify that a plat is the official survey of a subdivision and shows road right-of-ways, lot boundaries, building set-backs or envelopes, utility easements, and includes a list of “notes”. In the case of this recent subdivision, there were a total of TWELVE of them.
The first one states that the lot owner is responsible for the control of undesirable noxious weeds within the boundaries of the lot and to prevent them from spreading and to comply with the mitigation recommendations of the county weed board. OK, that’s logical – who wants a festering mess of noxious weeds next door? The next one is more of a warning, or notice, that if there are irrigation rights, they may or may not, be tied to the land. The third one is a pet peeve of mine and says that outdoor lighting shall be hooded or shielded so that the light is directed downward so as not to glare into the adjacent property, or dilute the night sky. This summer we had friends from Denver visit and they were blown away by the vividness of the stars and milky way. Looking across the valley it was easy to see some obviously un-shielded lights which caused me to question the enforcement mechanism for things like plat notes (more on that in a future column).
Number four states that the property is located in an agricultural area and that normal agricultural activities will continue unabated in the surrounding areas and may not be the basis for a lawsuit except in cases of proven gross negligence. Say what? I get the intent, you can’t sue your neighbor because his cows stink. But, after that, it gets confusing because how else is “gross negligence” proven if not by a court? This apparent contradiction started to bug me enough that I asked a local attorney what he made of it. “In my opinion, that note is not correct,” was his reply. Apparently both the state statute and county regulations protect agricultural producers from nuisance lawsuits as long as they employ methods that are commonly or reasonably associated with agricultural production but neither require finding a gross negligence.
The fifth note declares that all development in Delta County is subject to the right to county’s farm policy. Six says that Colorado is an “open range” state and that it is not the responsibility of a livestock owner to fence in livestock. Good to know when the cows come marching home this fall, right? Seven just says that all utilities within the subdivision have to be placed underground. Number eight stipulates building set-backs of 25-feet from the boundaries and roads.
The next one says that the lots in the subdivision are approved for one single-family residence unless subsequently approved otherwise (but the plat of the place we split with two houses was approved in the 1970’s and didn’t have this limitation so the second house was legal) continuing, that if the owner wants to re-split the lot they have to go through the subdivision process (that’s what we did) and, finally, that if somebody wants to use the property for other than agricultural or residential purposes, they have to apply for ‘specific development’ approval.
Note ten says that if there are covenants associated with the lots that they’ll be recorded by the Clerk and Recorder. Eleven is a warning that if irrigation ditches go through the property, access for cleaning and maintenance is permitted. This can be a big deal because typically the ditch company will use a backhoe and can remove bushes and trees if they’re encroaching on the ditch bank! The final note states that the septic systems have to be engineered if they’re repaired or replaced.
That’s quite a list of stipulations that anyone contemplating purchasing a property should be aware of, right? Part of every Colorado Buy/Sell contract calls for the title company to provide a title commitment showing the exceptions and providing copies of those exceptions. The plat will be one of those listed but good luck reading it if the title company sends a 8 ½ x 11 paper copy – get a PDF file and zoom in too see what kind of notices or limitations may be lurking in the “fine print” – you’ll be glad you did.