PRESENT:   All the Justices

COREY NEJATI, ET AL.
                                               OPINION BY
v.   Record No. 121728                    JUSTICE WILLIAM C. MIMS
                                            September 12, 2013
STEPHEN P. STAGEBERG, ET AL.

      FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                     Gordon F. Willis, Judge

     In this appeal, we consider whether zoning laws may

restrict the sale of real property and particularly whether

Code § 15.2-2254 limits the ability of a seller to convey

severalty interests.

           I.   BACKGROUND AND MATERIAL PROCEEDINGS BELOW

     In 2005, Kristopher Angstadt acquired a parcel of real

property in the City of Fredericksburg.   The tax map maintained

by the City of Fredericksburg Commissioner of Revenue indicated

that the parcel was a single lot.   However, the Commissioner’s

records also indicated that in 1942 it had been listed as two

separate “tax parcels.”

     In 2008, Angstadt hired Long Surveying, L.L.C. (“Long

Surveying”), to prepare a survey of the property.   The survey

drew boundary lines that corresponded to the boundaries of the

two tax parcels shown on the Commissioner’s records from 1942.

The larger lot depicted on the survey was designated 901

Hanover Street (the “Hanover Property”), and the smaller lot

was designated 802/804 Littlepage Street (the “Littlepage
Property”).   Angstadt recorded the survey; however, he did not

submit it for approval by the City as a subdivision as set

forth in Code § 15.2-2254 and Fredericksburg City Code (“City

Code”) § 78-1304(a).

     Angstadt subsequently transferred the two purported lots

to his real estate company, Properties By Us, L.L.C. (“PBU”),

by two separate deeds.    PBU converted a duplex on the

Littlepage Property into a two-story apartment building.   The

Hanover Property was left undeveloped.

     In June 2008, PBU conveyed the Littlepage Property,

including the apartment building, to Corey and Robabeh Nejati

by a deed that referenced and incorporated the previously-

recorded survey.   Two months later, in August 2008, PBU

conveyed the Hanover Property to Stephen Stageberg.    This deed

also referenced and incorporated the survey.

     By separate contract, PBU agreed to build a single family

house for Stageberg on the Hanover Property.    However, when PBU

applied for a zoning variance, the City’s Zoning Administrator

concluded that a house could not be built on the Hanover

Property since it had not been subdivided, and therefore did

not exist as a separate lot, pursuant to Code § 15.2-2254 and

City Code § 78-1304(a).    Stageberg subsequently exhausted his

administrative remedies but was unable to obtain a variance.




                                 2
     After reaching a settlement agreement with the title

insurance company that insured his interest in the Hanover

Property, Stageberg filed a quiet title action against the

Nejatis in the Circuit Court of the City of Fredericksburg. 1

Stageberg alleged that the legal effect of the 2008 deeds from

PBU to himself and to the Nejatis was to create a tenancy in

common of the undivided parcel acquired by Angstadt in 2005,

without regard for the Littlepage Property and Hanover Property

boundaries as described in the survey and the 2008 deeds.    The

Nejatis responded that the 2008 deeds created two distinct

estates in severalty, each with boundaries as described in the

survey. 2

     In a letter opinion, the circuit court held that the

claimed estates in severalty were impermissible because such

result would effectively circumvent the requirements for a

valid subdivision under Code § 15.2-2254(3) and City Code § 78-

1304(a).    Thus, the circuit court concluded that Stageberg and

the Nejatis were tenants in common of the whole property.    The

court determined the percentage ownership based on the original


     1
       Angstadt, his corporate alter egos, several financial
institutions, and the trustees on the deeds of trust were also
named as party-defendants. None of these parties have filed
appearances in this Court.
     2
       Alternatively, the Nejatis argued that because their deed
was recorded first, it conveyed the whole property to them,
leaving nothing for PBU to convey to Stageberg. However, they
did not pursue this argument on appeal.

                                 3
purchase prices that the parties had paid, which resulted in

the Nejatis owning a 71.43 percent interest and Stageberg

owning a 28.57 percent interest in the undivided parcel.    This

appeal followed.

                          II.   ANALYSIS

     The dispositive issue on appeal is whether the circuit

court erred in holding that Stageberg and the Nejatis share

ownership of the undivided parcel as tenants in common rather

than as tenants by severalty.

     It is well established in Virginia that a tenancy in

common may be created when “a deed is of a given quantity of

land, parcel of a larger tract, and the deed fails to locate

the quantity so conveyed by a sufficient description.”     Hodges

& DeJarnette v. Thornton, 138 Va. 112, 118, 120 S.E. 865, 867

(1924) (internal quotation marks omitted).   In such instances,

a tenancy in common results because “no one knoweth his own

severalty; and hence the possession of the estate necessarily

is in common until a legal partition [is] made.”   Id. at 119,

120 S.E. at 867 (internal quotation marks omitted).   However,

when a deed “locates the lands by name or metes and bounds so

that each party knows his land[s] or where they are located

with such certainty that a surveyor can take the [deed] and

locate them, . . . the [transferees] . . . hold in severalty,




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and not as tenants in common.”   Id. at 121, 120 S.E. at 868

(internal quotation marks omitted).

     In this case, both Stageberg and the Nejatis know with

certainty the property they purchased pursuant to their deeds.

The Nejatis’ deed describes their property as:

       ALL THAT certain lot or parcel of land with all
       rights and privileges appurtenant thereto,
       situate, lying and being in the City of
       Fredericksburg, Virginia, and known as #802,
       #804 Littlepage Street, containing 1,725.24
       square feet as shown on a plat of survey dated
       April 2, 2008, by Long Surveying, L.L.C., Land
       Surveyors, which plat is recorded in the Clerk’s
       Office of the Circuit Court of the City of
       Fredericksburg, Virginia, as Instrument No.
       080000914; and commonly known as 802 and 804
       Littlepage Street.

Stageberg’s deed describes his property similarly:

       ALL THAT certain lot or parcel of land with all
       rights and privileges appurtenant thereto,
       situate, lying and being at the northwest corner
       formed by the intersection of Hanover and
       Littlepage Streets, in the City of
       Fredericksburg, Virginia, and containing
       2,185.97 square feet as shown on a plat of
       survey dated April 2, 2008, by Long Surveying,
       L.L.C., Land Surveyors, which plat is recorded
       in the Clerk’s Office of the Circuit Court of
       the City of Fredericksburg, Virginia, as
       Instrument No. 080000914; and commonly known as
       #901 Hanover Street.

     The plat of survey by Long Surveying is expressly

referenced and incorporated into both deeds.   It is an accurate

description of the properties conveyed.   See Richardson v. J.S.

Hoskins Lumber Co., 111 Va. 755, 757, 69 S.E. 935, 936 (1911);



                                 5
State Savings Bank v. Stewart, 93 Va. 447, 453, 25 S.E. 543,

544 (1896) (“Where a map of land is referred to in a deed for

the purpose of fixing its boundaries, the effect is the same as

if it were copied into the deed.”).

     This property description in the deeds and plat of survey

is sufficient to create estates in severalty.    There are well-

defined boundary lines, precise square footage, and a metes and

bounds description for each parcel.   Thus, the deeds clearly

“locate[] the lands by name or metes and bounds so that each

party knows his land[s] or where they are located.”   Hodges,

138 Va. at 121, 120 S.E. at 868 (internal quotation marks

omitted).

     Stageberg’s only argument is that the description provided

in the survey is rendered “indefinite” by Angstadt and PBU’s

failure to comply with Code § 15.2-2254 and City Code § 78-

1304(a).

     Code § 15.2-2254 states in relevant part:

     2. No plat of any subdivision shall be recorded
     unless and until it has been submitted to and
     approved by the local planning commission or by the
     governing body or its duly authorized agent, of the
     locality wherein the land to be subdivided is located
     . . . .

     3. No person shall sell or transfer any land of a
     subdivision, before a plat has been duly approved and
     recorded as provided herein . . . . However, nothing
     herein contained shall be construed as preventing the
     recordation of the instrument by which such land is



                               6
     transferred or the passage of title as between the
     parties to the instrument. 3

Neither Angstadt nor PBU submitted the survey for approval

prior to conveying the Littlepage and Hanover Properties.

Stageberg argues that until the parties comply with this

requirement, the boundaries set forth in the survey are subject

to change.   Therefore, he claims that the deeds are not

sufficiently definite to create estates in severalty, and the

parties own the whole property as tenants in common.

     Stageberg contends that the language set forth in Code §

15.2-2254(3) is limited to the “parties to the instrument.”     In

other words, he argues that because he was not a party to the

Nejatis’ deed, their title to the Littlepage Property was not

perfected against him.   Consequently, Stageberg claims that he

and the Nejatis own the whole property as tenants in common,

regardless of the boundaries described in the survey and

incorporated in the deeds.   We disagree.

     Failure to comply with Code § 15.2-2254 results in

significant limitations on the use of the property by the

owner; however, it does not prevent conveyance of the property.

Stageberg’s argument runs contrary to the long-standing

presumption in favor of the right to free alienation of

property.    See Lipps v. First Am. Serv. Corp., 223 Va. 131,

     3
       City Code § 78-1304 contains substantively identical
provisions.

                                 7
135, 286 S.E.2d 215, 218 (1982); Cribbins v. Markwood, 54 Va.

(13 Gratt.) 495, 506 (1856).

     Although this Court has not directly addressed the

consequences of not complying with Code § 15.2-2254, the

Attorney General has concluded that the predecessor statute,

former Code § 15.1-473, 4 only restricts the use of unlawfully

subdivided property and does not affect the property interests

transferred by deed.   See 1989 Op. Atty. Gen. 100.

Specifically, the Attorney General stated that “[a]n injunction

obtained pursuant to [former] Code § 15.1-499 . . . would not

be an effective remedy to prevent the transfer of title

pursuant to a subdivision created in violation of . . . the

subdivision ordinance.   Any future development of the divided

property, however, could be restricted.” 5   Id.   Although it is

not binding on this Court, an Opinion of the Attorney General


     4
       Title 15.1 was recodified in 1997 as Title 15.2. 1997
Acts ch. 587. The recodification made no substantive changes
relevant to this appeal.
     5
       This conclusion has twice been reached by Virginia
circuit courts. See Leighton v. Virginia Dep’t of Health, 2001
Va. Cir. LEXIS 1, at *4 (Fauquier Cnty. Cir. Ct. 2001)
(“[F]ailure to comply with applicable subdivision regulations
does not prevent . . . the passage of title as between the
parties to the instrument. However, a failure to properly
subdivide the parcel . . . places significant limitations on
the use of the property by the owner.”); Justus v. Lowell, 28
Va. Cir. 505, 508-10 (Loudoun Cnty. Cir. Ct. 1992) (“[W]hile
the provisions of § 15.1-473 [Code § 15.2-2254’s predecessor],
place limitations on the use and development of ‘subdivided’
land, . . . they are not, absent enforcement, a bar to the
alienation of land.”).

                                8
is “persuasive” and may be used as an aid in construing

legislative intent.   Clinchfield Coal Co. v. Robbins, 261 Va.

12, 18, 541 S.E.2d 289, 292 (2001).

     Transfers of property in violation of Code § 15.2-2254 are

not free from consequence.   Code § 15.2-2254(4) provides:

         Any person violating the foregoing provisions
         of this section shall be subject to a fine of
         not more than $500 for each lot or parcel of
         land so subdivided, transferred or sold and
         shall be required to comply with all provisions
         of this article and the subdivision ordinance.

(Emphasis added.)   Clearly, persons who take title to

unapproved lots are subject to laws regulating how such

property may be developed.   This necessarily results in

Stageberg being unable to build a house on his property.

However, it does not change the property interests conveyed to

Stageberg and the Nejatis pursuant to their deeds. 6

     As discussed, the 2008 deeds were unambiguous as to the

descriptions of the properties conveyed.   Accordingly,

Stageberg and the Nejatis hold the Littlepage and Hanover

Properties in severalty, not as tenants in common.




     6
       Although compliance with Code § 15.2-2254 is not a
prerequisite to the ability to convey title, this does not
guarantee that the title conveyed is marketable. See e.g.,
Justus, 28 Va. Cir. at 510-11. Stageberg initially filed
claims against the seller for breach of contract, breach of
covenants of title, and/or rescission. However, he
subsequently nonsuited those claims.

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                        III.   CONCLUSION

     For the foregoing reasons, we will reverse the judgment of

the circuit court and remand for further proceedings consistent

with this opinion. 7

                                            Reversed and remanded.




     7
       Because we find that Stageberg and the Nejatis hold
distinct estates in severalty, we need not address the circuit
court’s allocation of ownership interests as tenants in common.

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