Components of a Family Transfer

• Field Survey
• Prepare Certificate of Survey (COS)
• COS Review and Approval by County Surveyor’s Office
• Set Final Monuments
• Prepare Deeds & Reality Transfer Certificates
• Submit Completed COS to Clerk & Recorder along with health approval for recording

• Prepare and Submit Exemption Affidavit to County Attorney
• Public Hearing with County Commissioners (Client Attends)
• County Commissioners’ Approval of Family Transfer exemption use

To those unfamiliar with the process, a Family Transfer may seem like a daunting, or even impossible task. The information provided in this handout is intended to serve as a guide to the process and not meant to intimidate those who are new to or unfamiliar with the Family Transfer process. Since our founding in 1972, Eli & Associates, Inc. has helped hundreds of clients successfully navigate the Family Transfer process. We look forward to helping you complete your Family Transfer.

Family Transfer Exemption: When Is It Appropriate?

• Montana law allows for the division of land that is exempt from subdivision review, under certain circumstances. The family transfer exemption is available for people who want to divide their land without subdivision review:

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76-3-207(1)(b) MCA, to wit: “divisions made outside of platted subdivisions for the purpose of a single gift or sale in each county to each member of the landowner’s immediate family;”

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• Note: An immediate family member includes your spouse, children or parents.

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• The first question to ask is : “What are you going to do with this newly created tract of land?”

If the answer is, “To give/sell to my children” or “to give/sell to my parents,” then it sounds like this is a valid use of the family transfer exemption. If the answer is, “So I can divide it off and sell to who ever has the cash,” then this division is not a valid use of the exemption, and a subdivision should be discussed.

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• Restrictions on Subsequent Transfers: In Missoula County, tracts created through family transfer should not be sold or deeded to a person other than the original transfer recipient within one (1) year of the creation of the tract. In Ravalli County, sale or transfer should not occur within three (3) years.

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Important Documents & Actions

• If available, please provide the following documents relating to the subject property to Eli & Associates:
• Names, Ages, and Addresses for Intended Recipients
• Deeds
• Easements
• Water Rights & Deeds
• Reality Transfer Certificates
• Well Logs
• Septic Permits

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• During the Family Transfer process, do not do any improvements on your land without coordinating with Eli & Associates.

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• Eli & Associates assigns a project coordinator to every project in order to ensure that there is one point of contact who can receive and distribute all information. This increases efficiency and reduces your costs. With family transfers, we recommend that you select one family member to be the point of contact for Eli & Associates. We are happy to have meetings where other family members are present, but from experience, we have found that it is best to have one person who receives and distributes information.

Important Considerations for Family Transfers

• History of the tract to be divided
• Your prior use of exemptions to Montana’s Subdivision and Platting Act
• Recipients of new tracts
• Intended use of new tracts
• If tract is located on an Indian Reservation
• Existing covenants
• Access
• Lot size
• Zoning
• Location of floodplain
• Ground Water Monitoring
• Proximity to city sewer & Mountain Water or other public water systems
• Feasibility of septic systems, wells & roads
• Financial interests encumbering property (Note: You may need to get approval from all involved financial interests)

Lot Size

Parcel size should be considered carefully in boundary relocations. A number of factors, including the following, depend on parcel size.

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Zoning and Comprehensive Plan

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• Most zoning districts require a minimum and/or maximum parcel size.
• Most zoning districts have minimum setbacks from property lines.
• Some zoning districts require homes to have a maximum or minimum number of square feet.
• Applicable comprehensive plans specify a general density (example: 6 dwelling units per acre).

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Health & Sanitation

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• If parcels use a public sewer system, there is no minimum parcel size, regardless of how water is delivered.
• If parcels use a multi-family drain field, there is no minimum parcel size, regardless of how water is delivered.
• If parcels use individual or shared drain fields and an existing off-site public water system, then the minimum parcel size is 20,000 SF.
• If parcels use individual or shared drain fields and a new multi-family or new public water system on the property, then the parcel must have enough area for a 200’ x 200’ well isolation zone (approximately 1 acre).
• If parcels use individual or shared drain fields and individual or shared wells, then the minimum lot size is 1 acre.

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House Footprint

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• If you have a particular architectural style or blueprint in mind for the home(s) on your parcels, please inform Eli and Associates in order to verify that the footprint of your home(s) will fit on the designed tracts along with easements, driveways, wells, septics, etc.

Basic Family Transfer Process

Design Health & Submit DEQ Subdivision Application

(Pay Fees)

Survey Site & Draft Preliminary COS , Maps & Diagrams

Client Provides Ownership, Recipient & Intended Use Information

Advantages of Family Transfers vs. Subdivisions

• Expedited review:

Family transfers are not reviewed for roads, access, public improvements, emergency services, utilities, zoning compliance or impacts to the following, which are reviewed for subdivisions:

• Agriculture
• Agricultural Water User Facilities
• Local Services
• Natural Environment
• Wildlife & Wildlife Habitat
• Public Health & Safety
• Lower Fees
• No Public Improvements
• Lower Eli & Associates Costs
• Less Time: 3-6 months for a family transfer compared to 9-12 months for a subdivision.

Missoula BCC Questions for Family Transfer Applicants

During the hearing with the Missoula Board of County Commissioners (BCC), the County Attorney will ask you the following questions (or similar questions):

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• How long have you owned the property?
• (If recent) Did you buy the property with the intent of dividing it?
• Do you or your transferee intend to transfer the property within the next year?
• (if minors) Do you have a trust established for the children to hold the property?
• Who Is the trustee or who controls the trust?
• If the property is sold, will the money be held in trust?
• (if not minors) Will the property be developed?
• (If not minors) Will the recipient of the property be residing on the property?
• (If not minors) Where does the recipient live now?
• Have you talked to anyone at the county about going through subdivision review?
• Are you in the business of building or developing property? Are you attempting to evade subdivision review?
• Do you understand that this request is not being reviewed for adequate access in all weather for all vehicles Including emergency services?
• Do you understand that this approval does not mean that the property is approved for zoning compliance, floodplain, or septic systems?

Ravalli BCC Questions for Family Transfer Applicants

During the hearing with the Ravalli Board of County Commissioners (BCC), the applicant must address the following:

• The nature of the claimant’s business, 
• The prior history of the particular tract in question, 
• The proposed configuration of the tracts if the proposed exempt transaction is completed, 
• Any pattern of exempt transactions that will result in the equivalent of a subdivision without local government review, and 
• The rebuttable presumptions for specific exemptions as outlined in the following sections of this 

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In addition, the applicant must rebut the following presumptions:

• Any proposed use of the family gift or sale exemption to divide a tract that was previously created through the use of an exemption will be presumed to be adopted for purposes of evading the MSPA.  
• The use of the family gift or sale exemption to divide tracts that were created as part of an overall development plan with such  characteristics as common roads, utility easements,  restrictive covenants, open space, or common marketing or promotional plan  raises a  rebuttable presumption that the use of the exemption is adopted for purposes of evading the MSPA.  
• A transfer of a parcel of land by one family member to another, by quitclaim deed, followed  by an attempted use of this exemption will result in the presumption the method of disposition is adopted for the purpose of evading the MSPA and these regulations.   The use of the exemption to create more than one additional or remaining parcel of less than  160 acres in size is presumed to be adopted for the purpose of evading the MSPA and these  regulations.

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Restrictions on Subsequent Transfer.  The transfer or potential sale of the gifted tract created by the family gift or sale exemption within three years of creation of the tract will result in the presumption that the use of the exemption was adopted for the purposes of evading the MSPA and the recordation of the instrument of conveyance of a parcel created by family gift or sale within three years of creation may be subject to refusal of the Clerk and Recorder. 

Basic Requirements for the Health Application Packet

• Waiver and Exemption Request

(Review Fee) – if needed

• Lot Layout
• Commissioner’s Approval Letter and Public Comments Related to Health
• MDEQ Subdivision Application (signed by owner/applicant)

(Review Fee)

• Background Maps
• Floodplain Maps
• USGS Topographic Map
• Soils Map
• Soil Descriptions
• Soil Profile Hole Test Results (Please Notify Eli if you have access to a backhoe that can dig 10-foot holes)
• Percolation Test Results
• Well Pump Tests – if needed

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• Water Tests: Bacteriological, Low-level Arsenic, Specific Conductance, Background Nitrates
• Hydraulic Conductivity Determination
• Supporting Well Logs
• Non-Degradation of Groundwater Determination
• Previous Health Approvals
• Existing Sewer Permits
• Storm Water Management Study
• Drainfield Engineering Report & Plans
• Drainfield Specifications
• Shared Users Agreement for Water & Sewer – if needed
• Receipt for Septic Tank Pumping
• Statement Concerning the Condition of Existing Septic System

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Well Logs & Septic Permits

Sample Well Log

Sample Septic Permit

Well logs and septic permits for existing systems are essential pieces of information for both subdivision and health applications. Property owners can often supply these document to Eli & Associates, saving both time and money.

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Well Logs

• If a well log is not available for an existing well, property owners may be required to create one. This would require measuring down the well shaft to the water level and running pump tests. In some cases, a 24-hour pump test may be required.
• If a well is noncompliant, a waiver will be needed. The health department may also require that a cistern be built or the well be re-drilled.

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Septic Permits

If a septic permit is unavailable, the tank and drain field may need to be uncovered and located.

If a septic system is noncompliant it may have to be rebuilt or abandoned.

State Health Fee Schedule

&

Calculation Sheet

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Note: In addition to the fees listed here, Ground Water Monitoring (GWM) may be required for some projects.

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The basic fee for GWM is $255.00 plus a distance charge and charges for any additional test sites.