Limited Opportunity to Restore Involuntarily Merged Lots of Record

If you own property that was originally subdivided and/or deeded with two or more lots in a configuration that differs from the depiction of your property on your municipality’s tax map, you may have an opportunity to restore it to its original configuration. The Legislature has acted to allow property owners to seek to unmerge lots that have been consolidated for tax purposes, between now and December 31, 2016. Under RSA 674:39-aa, the governing body in each community is required to consider and grant requests to restore lots to their original configuration provided:

1. The lots were involuntarily merged prior to September 18, 2010 which was the effective date of the amendment to RSA 674-39-a which prohibited municipalities from merging preexisting subdivided lots or parcels without the consent of the owner; and

2. Neither you nor your predecessor in title voluntarily merged the lots.

In the governing body’s determination of whether an owner voluntarily merged the lots, the burden of proof is on the municipality.

Examples of voluntary merger include, but are not limited to, written or oral requests by the owner documented in the assessing records, to merge the lots (often to reduce the assessed value of the real estate for tax purposes) or filing a voluntary merger form with the Planning Board under 674:39-a.

A recent decision of the New Hampshire Supreme Court in a case where a landowner’s request to restore lots had been denied by the Town of Windham, makes it clear that the governing body’s consideration is based on the facts and circumstances of each application. The “voluntariness” of a merger can be based upon:

1. The manner in which the property was conveyed and described by the owners in the chain of title (at the Registry of Deeds); use of a perimeter description rather than that of separate lots, or recording of a plan depicting the lots as merged, is clear evidence of an intention by the owner to merge the lots.

2. The physical characteristics of the lots and how they have been put to use; for example, if a home or other building has been built partially on both lots a voluntary merger can be inferred.

3. Other acts of the owner indicating an intent to merge the lots; but mere past acquiescence to taxation as a single lot does not, standing alone, support a finding of voluntary merger.

Finally, the statute makes if clear that the granting of a request to restore lots does not cure any non-conformity of the lots with existing local land use ordinances, such as lot size, frontage, or setback requirements. However, local ordinances can provide exemptions or reduced requirements for previously deeded lots of record. The scope of any so called “grandfathering” varies significantly from community to community. Some communities have no grandfathering, but allow for use by special exception. Other communities require a variance with proof of hardship, to make any building use of non-conforming lots.

A successful request for restoration has the potential to increase the assessed value of the land area involved and it is not a quest to undertake lightly. Before embarking on a restoration request, a landowner is well advised to consult with a surveyor and a real estate attorney with land use experience to determine how best to proceed.