BILL ANALYSIS �
AB 1642
Page 1
Date of Hearing: April 11, 2012
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 1642 (Gordon) - As Amended: March 29, 2012
SUBJECT : County recorder: recordation of documents.
SUMMARY : Requires county recorders to record any document that
relates to real property authorized or required to be recorded
by a local ordinance, and clarifies the form requirements for a
notice of intent to preserve an interest in real property.
Specifically, this bill :
1)Requires the recorder of a county, upon payment of proper fees
and taxes, to accept for recordation any instrument, paper, or
notice that is authorized or required to be recorded by a
local ordinance that relates to real property.
2)Prohibits the recorder of a county from refusing to record any
instrument, paper, or notice that is authorized or required to
be recorded by a local ordinance that relates to real property
on the basis of its lack of legal sufficiency.
3)Clarifies the form of the notice of intent to preserve an
interest in real property to replace the formal requirement of
acknowledgement by the county recorder with a statement that a
certificate of acknowledgment is required.
EXISTING LAW requires the county recorder, upon payment of
proper fees and taxes, to record any document that is authorized
or required by statute or court order to be recorded, provided
that the document meets certain standards.
FISCAL EFFECT : None
COMMENTS :
1)This bill contains two unrelated provisions of interest to
county recorders. The first provision simply revises the
requirements of a particular notice related to real property
to make clear that county recorders do not themselves conduct
acknowledgments. The second is intended to explicitly
authorize county clerk/recorders to officially record
documents authorized or required to be recorded by a local
AB 1642
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ordinance. That authorization would allow local governments
to return to the long-standing practice of recording local
Notices of Violation (NOVs) issued for property-related code
violations, a practice that was halted by the 2011 California
appellate court case County of Santa Cruz v. Carrick, due to a
perceived lack of statutory authority. The bill is sponsored
by the Santa Clara County Board of Supervisors.
2)The first provision makes a technical amendment to the
statutory format for the Notice of Intent to Preserve Interest
in real property. Such notices are used to preserve a future
interest in real property, and facilitate real property title
transactions by enabling individuals to rely on record title.
The recordation of the notice creates a presumption that the
person who claims the interest has not abandoned it, and is
often used in cases where an individual's future interest in
real property is contingent on some other action or
occurrence.
Under current law, the format for the notice includes a
section for 'acknowledgment' by the recorder, but this
requirement conflicts with Government Code Section 27287 which
contains a statutory requirement for acknowledgement of
execution prior to recording. In actual practice,
acknowledgments are performed by notary publics, not by the
recorder's office. This bill would reconcile the different
code sections by revising the form of the Notice to simply
require a certificate of acknowledgement as a precondition to
recordation.
3)The second provision relates to the recordation of local NOVs.
According to the sponsor, the Carrick decision "? is
problematic because it calls into question whether NOVs
authorized by local ordinance may be recorded and if they are
recorded, whether they are valid. Ultimately, if state law
does not recognize the authority of counties and cities to
record NOVs pursuant to local ordinances then current or
future property owners will not be put on notice that there
are existing code violations on the property?This �bill] would
preserve the ability of counties and cities to use this
valuable code enforcement tool. More importantly, it would
protect consumers."
4)According to the sponsor, "Notices of Violation (NOV) are a
key code enforcement tool used by virtually all cities and
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counties in California. NOVs serve to put the public on
notice that there are code violations on a property. In most
instances, a recorded NOV has the effect of precluding the
property from being sold or refinanced because lenders will
not provide mortgage financing for properties with existing
violations. The County of Santa Clara records NOVs for a
variety of property-related code violations including
violations of our building, zoning, grading, and environmental
health ordinances."
5)In April 2011, the California Court of Appeal, Sixth Appellate
District heard an appeal involving a dispute between the
County of Santa Cruz and an individual, Paul Carrick, whose
property had been cited for numerous code violations. In
reversing the trial court's finding for the County, the
unpublished appellate opinion found in part that state law did
not authorize the County's recording of a April 2006 Notice of
Violation on Carrick's property.
The court found that, while the County had relied on a 1980
Attorney General Opinion (63-905) for the proposition that "a
county may enact an ordinance providing for the recordation of
documents other than those specifically authorized by State
law based upon �the county's] police powers?", the Attorney
General's Opinion no longer applied because of subsequent
changes to the relevant code section.
The court noted that Government Code Section 27201(a) now
requires the recorder to accept for recordation any document
"that is authorized or required by statute or court order to
be recorded". The court also cited case law establishing that
the recorder has no authority to record unauthorized documents
for recordation. As a result, the court followed the plain
meaning of Government Code 27201(a) to find that only statutes
and court orders could authorize recordation - not municipal
ordinances like Santa Cruz County's.
Perhaps mindful that its close reading of the statute
represented a substantial change in practice for local
agencies, the court flagged the matter for the Legislature:
"�i]f the County believes that public policy supports the
recording of documents beyond those authorized by Government
Code section 27201, subdivision (a), it should address those
arguments to the Legislature." �County of Santa Cruz v.
Carrick, 2011 Cal. App. Unpub. LEXIS 2924, 53]
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6)Support Arguments : Without this change in law to formalize
the long-standing practice of recording NOVs, cities and
counties will lose a valuable tool for code enforcement while
harming public disclosure. It is also beneficial to reconcile
inconsistencies between related statutes.
Opposition Arguments : The recordation of NOVs can be abused,
with potentially negative impacts on private property rights,
so that sanctioning the practice is arguably unwise.
REGISTERED SUPPORT / OPPOSITION :
Support
County of Santa Clara Board of Supervisors �SPONSOR]
American Federation of State, County, and Municipal Employees
(AFSCME)
California Land Surveyors Association
California State Association of Counties
County Recorders' Association of California
League of California Cities
Regional Council of Rural Counties (RCRC)
Town of Los Altos Hills
Town of Los Gatos
Urban Counties Caucus
Opposition
None on file
Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958