Berkeley Municipal Code Ch. 21.60 Enforcement of Title Provisions

The following actions are prohibited:

A. No person shall offer to sell or lease, to contract to sell or lease, or to finance any parcel or parcels of real property or to commence construction of any building for sale, lease or financing thereon, except for model homes, or to allow occupancy thereof, for which a final map or parcel map is required by this chapter until such map thereof, in full compliance with the provisions of this title, has been filed with the county recorder for record.

B. No person shall sell, lease or finance any parcel or parcels of real property or commence construction of any building for sale, lease or financing thereon, except for model homes, or to allow occupancy thereof, for which a final map or parcel map is required by this title or the Subdivision Map Act, until such map thereof in full compliance with the provisions of this title and the Subdivision Map Act has been filed for record by the county recorder.

C. Conveyances of any part of a division of real property for which a final or parcel map is required by this chapter shall not be made by parcel or block number, initial or other designation, unless and until such map has been filed for record by the county recorder.

This section does not apply to any parcel or parcels of a subdivision offered for sale or lease, contracted for sale or lease, or sold or leased in compliance with or exempt from any law (including a local ordinance), regulating the design and improvement of subdivisions in effect at the time the subdivision was established. (Ord. 5793-NS § 2 (part), 1987)

The following remedies are provided by this title:

A. Any deed of conveyance, sale or contract to sell real property which has been divided, or which has resulted from a division, in violation of the provisions of this title or the Subdivision Map Act, is voidable at the sole option of the grantee, buyer or person contracting to purchase, their beneficiaries, personal representative, or trustee in solvency or bankruptcy, within one year after the date of discovery of the violation; but the deed of conveyance, sale or contract to sell is binding upon any successor in interest of the grantee, buyer or person contracting to purchase, other than those above enumerated, and upon the grantor, vendor, or person contracting to sell, or their assignee, beneficiary or devisee.

B. Any grantee, or their successor in interest, of real property which has been divided, or which has resulted from a division in violation of the provisions of this title or the Subdivision Map Act may, within one year of the date of discovery of such violation bring an action in the superior court to recover any damages they have suffered by reason of such division of property. The action may be brought against the person who divided the property in violation and against any successors in interest who have actual or constructive knowledge of such division of property.

The provisions of this section shall not apply to the conveyance of any parcel of real property identified in a certificate of compliance filed pursuant to Section 66499.35 of the Subdivision Map Act or identified in a recorded final map or parcel map, from and after the date of recording. The provisions of this section shall not limit or affect in any way the rights of a grantee or their successor in interest under any other provision of law.

This section does not bar any legal, equitable or summary remedy to which the City or other public agency, or any person, firm or corporation may otherwise be entitled, and the City or other public agency, or such person, firm or corporation may file a suit in the Superior Court of Alameda County, to restrain or enjoin any attempted or proposed subdivision for sale, lease or financing in violation of this title. (Ord. 5793-NS § 2 (part), 1987)

The City shall not issue a permit or grant any approval necessary to develop any real property which has been divided, or which has resulted from a division, in violation of the provisions of this title or the Subdivision Map Act if it finds that development of such real property is contrary to the public health or the public safety. The authority to deny such a permit or such approval shall apply whether the applicant therefor was the owner of the real property at the time of such violation or whether the applicant therefor is the current owner of the real property with, or without, actual or constructive knowledge of the violation at the time of the acquisition of their interest in such real property. (Ord. 5793-NS § 2 (part), 1987)

The City, in issuing a permit or granting approval for the development of any such real property, may impose those additional conditions as would have been applicable to the division of the property at the time the current owner of record acquired the property, and which had been established at such time by the Subdivision Map Act or local ordinance enacted pursuant thereto, except that if a conditional certificate of compliance has been filed for record under the provisions of this title only such conditions stipulated shall be applicable. (Ord. 5793-NS § 2 (part), 1987)

A certificate of compliance may be recorded as provided in this section:

A. Any person owning real property within the City of Berkeley may request the director of planning to determine whether such real property complies with the provisions of this title and the Subdivision Map Act.

B. Upon making such determination, the Director of Planning shall cause a certificate of compliance to be filed for record with the county recorder. The certificate of compliance shall identify the real property and shall state that the division of land complies with applicable provisions of the City of Berkeley Municipal Code and the Subdivision Map Act.

C. If the Director of Planning determines that such real property does not comply with the provisions of the municipal code or Subdivision Map Act, they may, as a condition to granting a certificate of compliance, impose such conditions as would have been applicable to the division of the property at the time the current owner of record acquired the property, and which has been established at such time by ordinance. Upon making such a determination and establishing such conditions the Director of Planning shall cause a conditional certificate of compliance to be filed for record with the county recorder. Such certificate shall serve as notice to the property owner who has applied for the certificate pursuant to this section, a grantee of the property owner, or any subsequent transferee or assignee of the property that the fulfillment and implementation of such conditions shall be required prior to subsequent issuance of a permit or other grant of approval for development of the property. Compliance with such conditions shall not be required until such time as a permit or other grant of approval for development of such property is issued.

D. A recorded final map or parcel map shall constitute a certificate of compliance with respect to the parcels of real property described therein.

E. A fee shall be paid to the City of Berkeley in accordance with the current master fee schedule, for making the determination and processing the certificate of compliance, at the time this determination is requested. (Ord. 5793-NS § 2 (part), 1987)

Whenever the Director of Planning has knowledge that real property has been divided in violation of the provisions of this title or the Subdivision Map Act, they shall cause to be mailed by certified mail to the then current owner of record of the property a notice of intention to record notice of violation, describing the real property in detail, naming owners thereof, and describing the violation, and stating that an opportunity will be given to the owner to present evidence. The notice shall specify a time, date, and place for a meeting at which the owner may present evidence to the Director of Planning why the notice should not be recorded.

The meeting shall take place no sooner than thirty days and no later than sixty days from date of mailing. If, within fifteen days of receipt of the notice, the owner of the real property fails to inform the City of their objection to recording the notice of violation, the secretary of the Planning Commission shall record the notice of violation with the county recorder. If, after the owner has presented evidence, it is determined that there has been no violation, the Director of Planning shall mail a clearance letter to the then current owner of record. If however, after the owner has presented evidence, the secretary of the Planning Commission determines that the property has in fact been illegally divided, the Planning Commission shall record the notice of violation with the county recorder. The notice of violation, when recorded, shall be deemed to be constructive notice of the violation to all successors in interest in such property. (Ord. 5793-NS § 2 (part), 1987)