There exist principles of law upon which most lawyers in a given field agree, but are more or less unstated by statutes or courts. These abound in certain corners of Oregon land use law and are rarely — if ever — contested.

One such common principle is that lots or parcels created before Oregon’s land use planning system remain lawful for sale or development, even if they don’t meet current standards. It therefore came as a shock to some when, in December 2024, the Oregon Land Use Board of Appeals (LUBA) appeared to significantly alter this principle by suggesting that large remainder parcels — from which child parcels were created long before local government subdivision or partition regulations — could be unlawful due to the vagaries of how these parcels were described on a deed.

However, the Court of Appeals recently said aloud what many of us in the legal profession had assumed: parent parcels, the boundaries of which were established by lawfully conveying away one or more child parcels, are legally established units of land and can themselves be lawfully conveyed.

This issue threatened to create significant problems for buyers and sellers of land throughout Oregon because, within the state, it is unlawful for a seller to convey a lot or parcel that is not a lawfully established unit of land. See ORS 92.018. In many cases, lots or parcels being bought or sold were created through a partition or subdivision process and are unambiguously lawful. However, older parcels (those created before Oregon’s land use planning system began to take effect in the mid-1970s) were often created by deed when the owner of land sold a portion of that land to another person. Any portion of the parent parcel retained by the seller then became a “remainder” of that owner’s original parent parcel.

These parcels are ubiquitous throughout Oregon, and LUBA’s decision potentially made them impossible to convey without a lengthy local land use process. This not only created potential new liability for sellers, but it also provided fodder for new challenges to the proposed use or development of what, until LUBA’s decision, had been universally accepted as lawfully established parcels.

The Oregon Court of Appeals resolved this issue earlier this year in Carroll v. Lane County. The parent parcel at issue in Carroll was lawfully established by deed in 1905. Subsequently, portions of the parent parcel were lawfully split off through three conveyances between 1905 and 1908. As a result, the parent parcel was split into four separate units of land, consisting of the three units of land that were created by deed, and a fourth unit of land constituting the remainder parcel that was not subsequently conveyed away. In simple terms, this remainder parcel was described as its original size, minus the early-1900s conveyances. 

LUBA concluded that, even though these conveyances occurred some 70 years before county partition approval would have been required, the parent parcel’s “simple existence as a remainder(parcel) does not create a legal lot,” and that a distinct description of the remainder parcel is required to establish the remainder parcel as a lawfully established unit of land.

The Court of Appeals reversed this conclusion, holding that a lawfully established unit of land can be“created by a deed, even if it is not specifically described, when the resulting unit of land is a legal consequence of the deed itself.”

In other words, assuming that the boundaries of a parcel are knowable from recorded deed records, a parcel can still be created as a consequence of later transactions, and such parcels are legally established if those transactions would have been legal at the time they were completed. This interpretation echoes the prior consensus among lawyers and planners practicing in this area. It also aligns with the legislative intent of Oregon land use law to treat units of land “that were brought into existence through land use transactions before land use regulations applied” as lawfully established.

The court’s holding in Carroll has provided much-needed certainty to the state of the laws governing the legality of older parcels created by deed, rather than by subdivision or partition plat. It particularly confirms that the thousands of parcels that were created as remainder parcels resulting from deed conveyances are “lawfully established “by deed or land sales contract, if there were no applicable planning, zoning, or subdivision or partition ordinances or regulations.” See ORS 92.010(3)(a)(B)(ii).

What’s more, according to the court, “whether a deed is ambiguous is a legal, not factual, question,” and factual matters concerning legal descriptions are only relevant insofar as the descriptions themselves are ambiguous. Even if a description of a remainder property must be determined in relation to the parcels previously carved out of that property, the court correctly concluded that the boundaries of such property are certainly knowable and can be unambiguous, as they were for the remainder parcel in Carroll. Once the remainder parcel has been shown to lawfully exist, subsequent conveyances concerning that property may not, on their own, undermine the protections Oregon law provides to grandfathered parcels. This is particularly significant given that a “lawfully created lot or parcel remains a discrete lot or parcel unless the lot or parcel lines are vacated, or the lot or parcel is further divided as provided by law.” See ORS 92.017.

Thus, Carroll quells certain disputes concerning the meaning of deed instruments, which are increasingly litigated in cases where development permits turn on the legality of the lot or parcel at issue. While not a panacea for the variety of unintended problems created by Oregon’s lawful establishment requirement for lots and parcels, Carroll represents an important step in clarifying how this area of land use law is interpreted and litigated.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.

Column first appeared in the Oregon Daily Journal of Commerce on August 15, 2025.