Regardless of the type of interest, it’s absolutely crucial to record your client’s newly acquired real property interest. By recording the transfer, grantees, buyers, and lenders are protected against both future purchasers for value and unknown prior interests in the same property. Additionally, title insurance companies generally will only insure an interest if it’s recorded. These benefits may not attach, however, if the recordation—or the recorded instrument itself—was defective.
Here are 7 tips for properly recording your client’s real property interest.
- Record the Instrument in the Proper County. To impart constructive notice, an instrument should be recorded in each county in which the property is located. Govt C §24250. When a property straddles multiple counties, there’s some authority for the position that recording the instrument in one county will give constructive notice in that county, even if it wasn’t recorded in other counties. See, e.g., Votypka v Valentine (1919) 41 CA 74. However, the best practice is to record the instrument in each county in which the property is situated.
- Ensure Proper Format. The county recorder won’t record the document unless it complies with format requirements. Specifications include: (1) reserving the top 2 1/2 inches of the first page for recordation information; (2) reserving a minimum of 1/2-inch margins on each vertical side; and (3) reserving the top 3 1/2 inches of the first page for the name and address of the person requesting recordation and the name and address for return. Govt C §27361.6. The instrument must be sufficiently legible to produce a readable photographic record. Govt C §27361.7. In addition, if the document is a deed conveying fee title, the name and address of the person to whom future tax statements are to be mailed must be provided in the top 3 1/2 inches of the first page, though the absence of the listing won’t affect constructive notice. Govt C §27321.5. If an instrument doesn’t comply, attach a face sheet that meets the criteria and includes the title of the document. Govt C §27324.
- Describe the Property Accurately. The document must sufficiently describe the affected property. Ideally, the description should be provided either in the document itself or by reference to another recorded document containing such a description. If an instrument affects two parcels (e.g., a deed granting an easement), the document should describe both the benefited and burdened parcels. CC §1468.
- Identify the Grantor and Grantee. The document must identify the grantee and grantor, whose names must be legibly signed, typed, or printed on the document. The grantors’ names should be the same as the names used when the interests were acquired. Additionally, the names of each person executing the document must be typed or printed below or next to the signature. Govt C §§27280.5, 27288.1.
- Include Required Acknowledgments. The document must contain an acknowledgment of signature from each person whose interest is affected or alienated (e.g., each grantor, lessor, trustor under a deed of trust, or mortgagor). Govt C §27287; CC §§1180–1207. However, an otherwise valid recorded instrument imparts constructive notice one year after it has been recorded, despite a defect in the acknowledgment. CC §1207.
- Provide Contents in English. If the document or portion of the document is in a language other than English, the party requesting recordation must provide a certified translation. Govt C §27923.
- Confirm Proper Indexing. Last but definitely not least, ensure that the recorder has properly indexed the document. An improperly indexed document may not impart constructive notice to subsequent purchasers. Similarly, constructive notice is imparted from the date of proper indexing, not from the date of recording. See First Bank v East W. Bank (2011) 199 CA4th 1309; Hochstein v Romero (1990) 219 CA3d 447. Note that a county recorder may be liable for damages, if he or she willfully or negligently fails to properly index a record or to correct an indexing error. Govt C §§27203–27203.5.
For more on recordation requirements, check out CEB’s Real Property Ownership & Taxation, chap 4. For practical guidance on real property sales and other transactions, turn to California Real Property Sales Transactions and our On Demand program, Transferring Real Property.
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