The opinion
OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 90-102
of :
: OCTOBER 25, 1990
JOHN K. VAN DE KAMP :
Attorney General :
:
RODNEY O. LILYQUIST :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE JACK L. WHITE, ANAHEIM CITY PROSECUTOR, has
requested an opinion on the following questions:
1. Would creation by condominium plan of a three-dimensional division of
airspace which is then severed from any ownership interest in the underlying earth violate the
provisions of Government Code section 66426 in the absence of a tentative and final map?
2. Would a condominium project consisting of five or more divisions of airspace
within a previously created three-dimensional air cube constitute a subdivision under the terms
of Government Code section 66426 for which a tentative and final map would be required even
though such divisions of airspace are not coupled with any ownership interest in the earth
underlying the airspace?
CONCLUSIONS
1. Creation by condominium plan of a three-dimensional division of airspace
which is then severed from any ownership interest in the underlying earth would violate the
provisions of Government Code section 66426 in the absence of a tentative and final map.
2. A condominium project consisting of five or more divisions of airspace within
a previously created three-dimensional air cube would constitute a subdivision under the terms
of Government Code section 66426 for which a tentative and final map would be required even
though such divisions of airspace are not coupled with any ownership interest in the earth
underlying the airspace.
ANALYSIS
The two questions presented for resolution concern the creation of a "dirtless"
condominium project as may be authorized and regulated under two different statutory schemes:
the Davis-Stirling Common Interest Development Act (Civ. Code, §§ 1350-1373; "Development
Act") and the Subdivision Map Act (Gov. Code, §§ 66410-66499.37; "Map Act").
1. 90-102
A "dirtless" condominium project is one in which each owner receives title to his
or her individual unit plus an undivided interest in the building in which his or her unit is located.
The undivided interest in the building is usually equal for all unit owners or based upon the
square footage of each unit relative to the square footage of all units. Ownership of the building
does not include the earth beneath it. All of the "dirt" is conveyed to the homeowners' association
established for the project concurrently with the conveyance of title to the purchaser of the first
unit. Membership in the homeowners' association is incidental to unit ownership and cannot be
separated from it.
The advantages of developing a condominium project that is "dirtless" primarily
relate to the requirements imposed by the Department of Real Estate under the Subdivided Lands
Law (Bus. & Prof. Code, §§ 11000-11200) and imposed by financial institutions with respect to
construction loans for larger, phased projects. This form of real estate ownership provides
flexibility in meeting these governmental and financial requirements when developing projects
that may take years and numerous stages to complete.
We are informed that condominium project developers in Northern California
have used this concept of real estate ownership in their developments over the past several years.
Southern California developers, however, have not done so due to uncertainties in the treatment
of this nontraditional form of real estate ownership1 by two separate statutory schemes with their
apparent differences in goals and requirements.2
1. Creation by Condominium Plan
The first question to be resolved is whether the creation of a three-dimensional
division of airspace by filing a condominium plan would violate the provisions of Government
Code section 66426 in the absence of a tentative and final map. We conclude that it would.
The question posed concerns the relationship between the provisions of the
Development Act and the Map Act. A condominium plan is filed under the authority of the
Development Act, while Government Code section 66426 is one of the provisions of the Map Act
requiring the recording of a tentative and final map.
Civil Code section 1351, subdivision (e) defines a "condominium plan" as follows:
"`Condominium plan' means a plan consisting of (1) a description or
survey map of a condominium project, which shall refer to or show
monumentation on the ground, (2) a three-dimensional description of a
condominium project, one or more dimensions of which may extend for an
indefinite distance upwards or downwards, in sufficient detail to identify the
common areas and each separate interest, . . ."
1
In 65 Ops.Cal.Atty.Gen. 101, 103 (1982), we noted that in a condominium project, "the ownership
of stacked cubes of space is a decided departure from the usual maxim of cujus est solum, ejus est
usque ad coelum et ad inferos [to whomsoever the soil belongs, he owns also to the sky and to the
depths]."
2
The applicability of other statutory schemes, such as the Subdivided Lands Law, is beyond the
scope of this opinion.
2. 90-102
Government Code section 66426, on the other hand, provides:
"A tentative and final map shall be required for all subdivisions creating
five or more parcels, five or more condominiums as defined in Section 783 of the
Civil Code, . . ."
"Section 783 of the Civil Code" defines a "condominium" as follows:
"A condominium is an estate in real property described in subdivision (f)
of Section 1351. A condominium may, with respect to the duration of its
enjoyment, be either (1) an estate of inheritance or perpetual estate, (2) an estate
for life, (3) an estate for years, such as a leasehold or a subleasehold, or (4) any
combination of the foregoing."
Civil Code section 1351, subdivision (f) in turn provides:
"A `condominium project' means a development consisting of
condominiums. A condominium consists of an undivided interest in common in
a portion of real property coupled with a separate interest in space called a unit,
the boundaries of which are described on a recorded final map, parcel map, or
condominium plan in sufficient detail to locate all boundaries thereof. The area
within these boundaries may be filled with air, earth, or water, or any combination
thereof, and need not be physically attached to land except by easements for
access and, if necessary, support. The description of the unit may refer to (1)
boundaries described in the recorded final map, parcel map, or condominium
plan, (2) physical boundaries, either in existence, or to be constructed, such as
walls, floors, and ceilings of a structure or any portion thereof, (3) an entire
structure containing one or more units, or (4) any combination thereof. The
portion or portions of the real property held in undivided interest may be all of the
real property, except for the separate interests, or may include a particular three-
dimensional portion thereof, the boundaries of which are described on a recorded
final map, parcel map, or condominium plan. The area within these boundaries
may be filled with air, earth, or water, or any combination thereof, and need not
be physically attached to land except by easements for access and, if necessary,
support. An individual condominium within a condominium project may include,
in addition, a separate interest in other portions of the real property." (Emphases
added.)
The Development Act thus contemplates that the boundaries of the interests in a
condominium project may be described on a condominium plan filed pursuant to its provisions.
This would seemingly be as an alternative to describing the boundaries on a recorded final map
or parcel map3 as authorized by the Map Act. Does this mean that no subdivision map need be
filed at all?
The Development Act contains various safeguards for condominium owners,
including provisions for the enforcement of covenants and restrictions as equitable servitudes
(Civ. Code, § 1354), ingress, egress, and support easements (Civil Code, § 1361), ownership of
3
Ordinarily a parcel map would be required for subdivisions creating four or fewer
condominiums, while a tentative and a final map would be required for the creation of five or more
condominiums. (Gov. Code, §§ 66426, 66428.)
3. 90-102
the common areas (Civ. Code, § 1362), and the creation of a community association (Civ. Code,
§ 1363). It does not purport to affect or interfere with the requirements of the Map Act. Indeed,
Civil Code section 1352 states:
"This title applies and a common interest development is created
whenever a separate interest coupled with an interest in the common area or
membership in the association is, or has been, conveyed, provided, all of the
following are recorded:
"(a) A declaration.
"(b) A condominium plan, if any exists.
"(c) A final map or parcel map, if [the Map Act] requires the recording of
either a final map or parcel map for the common interest development."
In contrast to the purposes of the Development Act, the Map Act establishes
general criteria for land development planning in communities throughout the state. Cities and
counties are given authority under this legislation to regulate the design and improvement of
divisions of land in their areas through a process of approving subdivision maps required to be
filed by each subdivider. (Gov. Code, § 66411; Santa Monica Pines, Ltd. v. Rent Control Board
(1984) 35 Cal.3d 858, 869; Soderling v. City of Santa Monica (1983) 142 Cal.App.3d 501, 506-
508; South Central Coast Regional Com. v. Charles A. Pratt Construction Co. (1982) 128
Cal.App.3d 830, 844-845.)
The basic definition of "subdivision" for purposes of the Map Act is contained in
Government Code section 66424, which states:
"`Subdivision' means the division, by any subdivider, of any unit or units
of improved or unimproved land, or any portion thereof, shown on the latest
equalized county assessment roll as a unit or as contiguous units, for the purpose
of sale, lease or financing, whether immediate or future except for leases of
agricultural land for agricultural purposes. Property shall be considered as
contiguous units, even if it is separated by roads, streets, utility easement or
railroad rights-or-way. `Subdivision' includes a condominium project, as defined
in Section 1350 of the Civil Code, . . ." (Emphasis added.)4
4
"Section 1350 of the Civil Code" formerly contained the Legislature's definition of a
condominium project, but in 1985 the Legislature moved the definition to Civil Code section 1351.
(Stats. 1985, ch. 874, §§ 13-14.) We may deem the reference in Government Code section 66424
to the former statute as being to the present Civil Code provision. (See Puckett v. Johns-Manville
Corp. (1985) 169 Cal.App.3d 1006, 1009; People v. Oliver (1985) 168 Cal.App.3d 920, 926; Valley
Electric Co. v. Slagle (1956) 142 Cal.App.2d 81, 83-84.) Government Code section 9604 embodies
this principle of statutory construction as follows:
"When the provisions of one statute are carried into another statute under
circumstances in which they are required to be construed as restatements and
continuations and not as new enactments, any reference made by any statute, charter
or ordinance to such provisions shall, unless a contrary intent appears, be deemed a
reference to the restatements and continuations."
4. 90-102
Government Code section 66427 additionally provides:
"A map of a condominium project, a community apartment project, or of
the conversion of five or more existing dwelling units to a stock cooperative
project need not show the buildings or the manner in which the buildings or the
airspace above the property shown on the map are to be divided, nor shall the
governing body have the right to refuse approval of a parcel, tentative or final
map of such a project on account of design or location of buildings on the
property shown on the map not violative of local ordinances or on account of the
manner in which airspace is to be divided in conveying the condominium. Fees
and lot design requirements shall be computed and imposed with respect to such
maps on the basis of parcels or lots of the surface of the land shown thereon as
included in the project. Nothing herein shall be deemed to limit the power of the
legislative body to regulate the design or location of buildings in such a project
by or pursuant to local ordinances."
Although "[a] map of a condominium project . . . need not show the buildings or
the manner in which the buildings or the airspace above the property shown on the map are to
be divided" (Gov. Code, § 66427), the design and improvement of a condominium project are
subject to the control of the city or county under provisions of the Map Act. (See Griffin
Development Co. v. City of Oxnard (1985) 39 Cal.3d 256, 262; Soderling v. City of Santa
Monica, supra, 142 Cal.App.3d 501, 506-508; 65 Ops.Cal.Atty.Gen. 101, 102-103 (1982).)
Government Code section 66411 states in part:
"Regulation and control of the design and improvement of subdivisions
are vested in the legislative bodies of local agencies. Each local agency shall, by
ordinance, regulate and control the initial design and improvement of common
interest developments as defined in Section 1351 of the Civil Code . . . ."
(Emphasis added.)
The Map Act and Development Act may be seen as consistent and in agreement
with each other. They regulate different aspects of condominium developments, and in so doing,
each refers to the other. "Statutes in pari materia should be construed together" (Long Beach
Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d 1379, 1387), "even when
interpreting provisions in different codes" (Building Material & Construction Teamsters' Union
v. Farrell (1986) 41 Cal.3d 651, 665). "[I]f possible, the codes are to be read together and
blended into each other as though there was but a single statute [citations] . . . ." (Lara v. Board
of Supervisors (1976) 59 Cal.App.3d 399, 408-409.) The boundaries of the ownership interests
in a condominium project may properly be shown on a condominium plan rather than on a parcel
or tentative and final map, but a subdivision map must necessarily be approved and recorded as
directed by the Map Act.
Having established that the Development Act and Map Act operate together for
purposes of creating a condominium project, we are left with the issue of whether a "dirtless"
condominium project requires a different analysis or treatment. Under the two statutory schemes,
a "condominium project" is "a development consisting of condominiums" each of which "is an
estate in real property" comprised of (1) "an undivided interest in common in a portion of real
property" and (2) "a separate interest in space called a unit." In addition, a condominium may
include (3) "a separate interest in portions of the real property." (Civ. Code, §§ 783, 1351; Gov.
Code, §§ 66424, 66426.)
5. 90-102
In a dirtless condominium project, the requirement of "a separate interest in space
called a unit" is clearly satisfied. Each unit owner is deeded a separate "space" as in any other
condominium project. It is the requirement of "an undivided interest in common in a portion of
real property" that may arguably distinguish a dirtless condominium project from other
condominium projects under the two legislative acts. The owners have an undivided interest in
common in their building, but the building has been severed in ownership interest from the
underlying earth, and the latter has been conveyed to a homeowners' association. May a building
separated in ownership interest from the underlying earth constitute "real property"?
To answer this question, we look to the Legislature's treatment and use of the term
"real property." Civil Code section 658 states that "real property" includes "land," and "land" is
defined in Civil Code section 659 as follows:
"Land is the material of the earth, whatever may be the ingredients of
which it is composed, whether soil, rock, or other substance, and includes free or
occupied space for an indefinite distance upwards as well as downwards, subject
to limitations upon the use of airspace imposed, and rights in the use of airspace
granted, by law."
The statutory definition of the term "land" was amended in 1963 (Stats. 1963, ch.
860, § 2) by deleting the word "solid" and adding the last phrase beginning with the words "and
includes."5 Significantly for our purposes, the 1963 amendment was part of the same legislation
that defined the term "condominium" for the first time in a California statute. We thus believe
that these definitions of "land" and "real property" contained in the Civil Code may be applied
in the context of condominium projects as specifically contemplated by the Legislature in the
Development Act and Map Act.
With such harmonizing of the statutes, we conclude that an undivided interest in
common in a condominium building that has been severed in ownership interest from the
underlying earth would constitute "land" and "real property" under the Legislature's definitions
of these terms. Hence a dirtless condominium project may be treated the same as other
condominium projects for purposes of the Development Act and Map Act.
In summary a three-dimensional division of airspace may in part be created by the
filing of a condominium plan under the authorizing provisions of the Development Act. (See
Civ. Code, § 1351.) This statutory scheme, however, does not take the place of or supersede the
Map Act. Rather, it recognizes that subdivision maps must also be recorded if the Map Act so
requires. (Civ. Code, § 1352.) The two statutory schemes have different requirements based
upon their different goals and purposes. Although condominium project subdivision maps need
not show the buildings or manner in which the buildings or airspace are to be divided (Gov.
Code, § 66427), local governments are directed to regulate the initial design and improvement
of condominium projects through their ordinances implementing the Map Act (Gov. Code,
§ 66411). The joint operation of the Development Act and Map Act are as applicable to dirtless
condominium projects as to other condominium projects.
5
Prior to 1963, Civil Code section 659 provided:
"Land is the solid material of the earth, whatever may be the ingredients of
which it is composed, whether soil, rock, or other substance."
6. 90-102
In answer to the first question, therefore, we conclude that creation by
condominium plan of a three-dimensional division of airspace which is then severed from any
ownership interest in the underlying earth would violate the provisions of Government Code
section 66426 in the absence of a tentative and final map.
2. Map Act Enforcement
The second question deals with a three-dimensional air cube that has previously
been created pursuant to the provisions of the Map Act. Would a condominium project
consisting of five or more divisions of airspace within a previously created three-dimensional air
cube constitute a subdivision under the terms of Government Code section 66426 for which a
tentative and final map would be required even though such divisions of airspace are not coupled
with any ownership interest in the earth underlying the airspace?
As explained in answer to the first question, Government Code section 66426
requires a tentative and final map "for all subdivisions creating . . . five or more condominiums
as defined in Section 783 of the Civil Code." The latter Civil Code provision refers in turn to
Civil Code section 1351, subdivision (f), declaring that "[a] condominium consists of an
undivided interest in common in a portion of real property coupled with a separate interest in
space called a unit." An undivided interest in common in a building that has been severed in
ownership interest from the underlying earth would constitute an interest in a "portion of real
property" since it would constitute "land" as defined by the Legislature in Civil Code section 659.
While a tentative and final map would be required, the maps "need not show the
buildings or the manner in which the buildings or the airspace above the property shown on the
map are to be divided." (Gov. Code, § 66427.) The ordinances of the local government would
require examination to determine the type of documents needed by the local government for it
to review and approve the initial design and improvement of the condominium project. (Gov.
Code, §§ 66411, 66434.2.)
The background material furnished with respect to the second question focuses
upon projects built in phases, where separate buildings are constructed over a number of years.
How are the Map Act requirements to be interpreted with respect to phased developments in
which air cubes have previously been created in compliance with the Map Act?
First of all, we believe that it would be insufficient to file a subdivision map
indicating only that it is for "condominium purposes" without any indication of the number of
divisions that ultimately are to be created in the project. The Map Act contemplates that the
actual number of divisions will be indicated so that the appropriate map (parcel or tentative and
final map) will be prepared and recorded. (Gov. Code, §§ 66426, 66428.) The statutory
requirements differ for these maps (Gov. Code, §§ 66425-66450), and the local government must
be given an opportunity to perform its statutory duty to approve the entire project. It would be
a violation of the Map Act to file a parcel map "for condominium purposes" and then attempt to
create a condominium project of 20 units without appropriate government review and approval
of all the divisions to be created.
Likewise it would violate the Map Act to file a tentative and final map for 20 units
and then attempt to develop a project for 40 units. The local government cannot effectively
control the design and improvement (Gov. Code, § 66411) of a 40-unit condominium project if
it is presented with a map for a 20-unit project.
7. 90-102
In a phased condominium project to be developed over a period of years, the
ultimate number of units to be constructed may not be known at the initial planning stage.
Circumstances may change, and the building of additional units may be considered. In order for
the local government to regulate the initial design and improvement of the entire project,
additional maps would be required to correspond with proposed additional divisions, even though
the maps themselves "need not show the buildings or the manner in which the buildings or the
airspace above the property shown on the map are to be divided." (Gov. Code, § 66427.) Even
though a three-dimensional air cube is legally created, compliance with the Map Act will be
necessary for any divisions within the air cube not previously approved.
To interpret in isolation the "need not" language of Government Code section
66427 would violate the principle that "statutory sections relating to the same subject must be
harmonized, both internally and with each other, to the extent possible." (Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) Moreover, major purposes of the
Map Act are "to coordinate planning with the community pattern laid out by local authorities, and
to assure proper improvements are made so the area does not become an undue burden on the
taxpayer." (Benny v. City of Alameda (1980) 105 Cal.App.3d 1006, 1011.) The provisions of
the Map Act are to be broadly interpreted so as to prevent circumvention of its goals and
purposes. (John Taft Corp. v. Advisory Agency (1984) 161 Cal.App.3d 749, 755; Bright v. Board
of Supervisors (1977) 66 Cal.App.3d 191, 195; Hersch v. Mountain View (1976) 64 Cal.App.3d
425, 432-433; Pratt v. Adams (1964) 229 Cal.App.2d 602, 605-606.)6 A construction of the Map
Act's requirements, particularly those of Government Code sections 66411 and 66426, other than
as we have concluded would thwart the purpose of orderly community development.
In answer to the second question, therefore, we conclude that a condominium
project consisting of five or more divisions of airspace within a previously created three-
dimensional air cube would constitute a subdivision under the terms of Government Code section
66426 for which a tentative and final map would be required even though such divisions of
airspace are not coupled with any ownership interest in the earth underlying the airspace.
*****
6
In Freedland v. Greco (1955) 45 Cal.2d 462, 468, the Supreme Court reaffirmed:
"'That construction of a statute should be avoided which affords an
opportunity to evade the act, and that construction is favored which would defeat
subterfuges, expediences, or evasions employed to continue the mischief sought to
be remedied by the statute, or to defeat compliance with its terms, or any attempt to
accomplish by indirection what the statute forbids.'"
8. 90-102