Consider descriptions when recording subdivision plats.

Landowners and developers subdividing and selling property should understand the effect of recording a subdivision plat in the land records, and should consider the detail with which proposed infrastructure improvements and common areas are depicted. While depicting common areas and other rights-of-way might facilitate marketing the lots to prospective purchasers, it might also commit the subdivider to honoring those rights in the future – even if circumstances change. In Vermont, unless evidence of a contrary intent is shown, the recording of a subdivision plat vests upon all future lot owners certain rights to the roads, parks, and other designated rights-of-way depicted on the recorded plat.

The Vermont Supreme Court has explained that “where lots are sold by reference to a recorded plat, lot purchasers acquire a right to keep open and use roads, streets, highways, and park areas as indicated on the plat.” Clearwater Realty Co. v. Bouchard, 146 Vt. 359, 363 (1985). Purchasers are not required to show that they actually or specifically relied upon the existence of the depicted rights because the recorded plat creates an inference that purchasers relied on the depictions. Lalonde v. Renaud, 157 Vt. 281, 284 (1989). The intent of this so-called “unity” rule is to secure for purchasers the benefits that can be reasonably inferred to have induced them into the purchase. Clearwater Realty Co., 146 Vt. at 364.

In Clearwater, for example, the Court recognized the right of adjoining landowners to use a 25’-wide beach path running to Lake Champlain because it was depicted on the recorded plat, and the transfer deeds contained specific reference to the recorded plat. 146 Vt. at 360, 363. In Lalonde, the Court likewise recognized a right to use a park depicted on the recorded plat even though the transfer deeds contained no reference to any such park, but did refer to the plat. 157 Vt. at 282–83, 285.

The inference of reliance can be overcome, however, by evidence of a contrary intent. A purchaser probably did not rely on the depictions on the plat if the deed of transfer or the subdivision’s declaration of covenants expressly excludes rights to such roads and rights-of-way.  See, e.g., A2, Inc. v. Chittenden Trust Co., 2009 VT 50, ¶¶ 2–6, 186 Vt. 530 (refusing to recognize a right to sewage treatment capacity because the Declaration of Covenants specifically excluded sewage treatment allocation from the common elements); Crabbe v. Veve Assoc., 150 Vt. 53 (1988) (holding that express language in the transfer deeds precludes finding that a recorded plat creates implied rights). Likewise, a purchaser probably did not rely on depictions of improvements that are beyond the reasonable control of a developer. See Noble v. Kalanges, 2005 VT 101, ¶ 20, 179 Vt. 1 (finding unreasonable reliance on the depiction of a school because, unlike a trail, street, or open space, the construction of a school is out of the control of the subdivider).

To avoid conflicts over whether a recorded plat induced landowners into purchasing a newly subdivided lot – and thus have a right to use roads, parks, and rights-of-way depicted thereon – landowners and developers should make their intentions clear in the transfer deed and Declaration of Covenants. Well-drafted documents can reduce the risk that a landowner will successfully argue that he or she relied upon the existence of a road or park or other improvement when purchasing the lot.