On at least a couple of occasions in the past I have written about the Arizona statute that requires sellers of unsubdivided land in unincorporated areas to provide an affidavit of disclosure. A commenter recently pointed out an area of uncertainty that I believe I identified in some of my earlier writings on this subject. The area of uncertainty is a pretty fundamental one: when does the requirement apply? By the terms of the statute that imposes the requirement, Arizona Revised Statutes section 33-422, it doesn’t apply to “subdivided land.” The term “subdivided land,” however, is not defined in section 33-422 or anywhere else in title 33 of the Arizona Revised Statutes.
Nathan Hannah, Attorney
There is a definition of “subdivided lands” in title 32 of the Arizona Revised Statutes. Section 32-2101 defines “subdivided lands” as “improved or unimproved land or lands divided or proposed to be divided for the purpose of sale or lease, whether immediate or future, into six or more lots, parcels or fractional interests.” That definition is limited, however, to exclude “lots or parcels each of which is or will be thirty-six acres or more in area including to the centerline of dedicated roads or easements, if any, contiguous to the lot or parcel.” So if the parcel or parcels are 36 acres or more, they aren’t “subdivided lands” within the meaning of title 32 of the statutes. Therefore it seems that the requirement for an affidavit of disclosure wouldn’t apply.
I can’t say for sure that if a parcel is more than 36 acres, the affidavit of disclosure requirement will not apply. In fact, I think the drafters of the statute probably didn’t intend to exclude sales of parcels over 36 acres. If I were selling a parcel of more than 36 acres, I would err on the side of caution and provide the affidavit.
Section 33-422 still doesn’t specify any penalty or remedy if the seller fails to provide the affidavit, but it does say that the buyer may rescind the transaction within five days after the affidavit is provided. The statute also requires that the seller record the affidavit at the same time as the deed transferring the property to the buyer.
Most title companies in Arizona have incorporated the requirements of the statute into their procedures for closing sales of unsubdivided land in unincorporated areas. Preliminary title reports on such land now contain a legend stating that the property appears to be subject to the statute and that the affidavit must be furnished by the seller prior to closing. Sellers of such land should be prepared to provide the required affidavit to the buyer (and to the title company as well) at least seven days prior to closing, as required by the statute, in order to avoid a delay of the closing.
Nathan B. Hannah is a Shareholder in the Tucson office, and practices in the areas of estate planning and administration, real estate, and commercial transactions. He is also a noted blogger, and you can find more of his articles on his private blog,
Contact Attorney Hannah: nhannah@dmyl.com or 520/ 322-5000
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