BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1642 (Gordon)
As Amended March 29, 2012
Hearing Date: June 19, 2012
Fiscal: No
Urgency: No
TW
SUBJECT
County Recorder: Recordation of Documents
DESCRIPTION
This bill would repeal the existing acknowledgment required for
a notice of intent to preserve interest in real property to
instead require use of the general acknowledgment form. This
bill also would authorize a county recorder to record a real
property document that is required by a local ordinance to be
recorded.
BACKGROUND
An acknowledgment is the declaration, before a court or officer,
such as a notary public, by a person executing (i.e. signing and
delivering) an instrument (i.e. document) that such execution is
his or her act and deed. It is a public declaration of the fact
of the execution to all persons. The purposes of statutes
requiring acknowledgments are to: (1) entitle instruments to be
recorded; (2) prevent disputes concerning the execution of
instruments admitted to record; (3) make them admissible in
evidence; and (4) give notice to those examining the record that
execution has been made with due care.
Prior to 1990, separate forms were required for acknowledgments
by corporations, partnerships, public agencies, and
attorneys-in-fact. A separate form was also established for
out-of-state acknowledgments. AB 2581 (Tucker, Ch. 335, Stats.
1990) and SB 2251 (Seymour, Ch. 1070, Stats. 1990) established
one general use form for the acknowledgment of instruments and
most real property document acknowledgment forms were repealed
(more)
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in favor of the general use form. However, the acknowledgment
required for the notice of intent to preserve interest in real
property was not included in the 1990 acknowledgment form
update. This bill would update the acknowledgment requirement
for a notice of intent to preserve interest in real property to
conform to the acknowledgment used by other documents pertaining
to real property that are recorded with a county recorder.
This bill also would expand a county recorder's ability to
record documents. Since 1942, county recorders have been
required to record documents that are required by law to be
recorded. In 1998 and in response to an increasing trend of
anti-government groups recording false liens and other
encumbrances on the property of government agencies, public
officers and employees, SB 1759 (Ayala, Ch. 779, Stats. 1998)
revised the requirement for county recorders to record documents
required to be recorded by law and instead required county
recorders to record documents required to be recorded by statute
or court order.
Although no longer specifically authorized to record documents
required to be recorded pursuant to local ordinances, county
recorders continued to do so in reliance on an Attorney General
Opinion, which determined that a county board of supervisors
could provide by ordinance for the recording of such documents.
However, a recent unpublished court decision, County of Santa
Cruz v. Carrick (2011) Cal.App.Unpub. LEXIS 2924, has called
into question the validity of recorded notices of violations.
This bill, sponsored by the County of Santa Clara, seeks to
respond to the ruling in Carrick by requiring county clerks to
record real property documents required to be recorded pursuant
to a local ordinance. This bill also would conform the
acknowledgment requirement for a notice of intent to preserve
interest in real property to the acknowledgment form required to
be used for other real property documents that are recorded by a
county recorder.
CHANGES TO EXISTING LAW
1.Existing law requires a county recorder, upon payment of
proper fees and taxes, to accept for recordation any
instrument, paper, or notice that is authorized or required by
statute or court order to be recorded, if the instrument,
paper, or notice contains sufficient information to be indexed
as provided by statute, meets recording requirements of state
AB 1642 (Gordon)
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statutes and local ordinances, and is photographically
reproducible. Existing law prohibits a county recorder from
refusing to record any instrument, paper, or notice that is
authorized or required by statute or court order to be
recorded on the basis of its lack of legal sufficiency. (Gov.
Code Sec. 27201(a).)
This bill would require a county recorder to accept for
recordation any instrument, paper, or notice that is
authorized or required to be recorded by a local ordinance
that relates to the recordation of any instrument, paper, or
notice that relates to real property.
This bill would prohibit a county recorder from refusing to
record any instrument, paper, or notice that is authorized by
local ordinance that relates to the recordation of any
instrument, paper, or notice that relates to real property to
be recorded based on its lack of legal sufficiency.
2.Existing law provides that, if the time within which an
interest in real property expires depends upon recordation of
a notice of intent to preserve the interest, a person may
preserve the person's interest from expiration by recording a
notice of intent to preserve the interest before the interest
expires. (Civ. Code Sec. 880.310 (a).)
Existing law provides that recordation of a notice of intent
to preserve an interest in real property creates a presumption
affecting the burden of proof that the person who claims the
interest has not abandoned and does not intend to abandon the
interest. (Civ. Code Sec. 880.310 (b).)
Existing law provides that a notice of intent to preserve an
interest in real property may be recorded by any of the
following persons: (a) a person who claims the interest; or
(b) another person acting on behalf of a claimant if the
person is authorized to act on behalf of the claimant or if
the claimant is one of a class whose identity cannot be
established or is uncertain at the time of recording the
notice of intent to preserve the interest. (Civ. Code Sec.
880.320.)
Existing law provides that, subject to all statutory
requirements for recorded documents, a notice of intent to
preserve an interest in real property shall contain the
following acknowledgment of the identity of the subscribing
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individual or entity:
State of
___________________,
County of _________________,
ss.
On this _____ day of ________, in the year _____, before me
(here insert name and quality of officer), personally appeared
______________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is
subscribed to this instrument, and acknowledged that he (she
or they) executed it.
Signed: Official Seal:
Office:
(Civ. Code Sec. 880.340.)
Existing law provides that, unless the document to be recorded
is otherwise provided for by statute, as specified, before an
instrument can be recorded its execution shall be acknowledged
by the person executing it, or if executed by a corporation,
by its president or secretary or other person executing it on
behalf of the corporation, or, except for any power of
attorney, quitclaim deed, or grant deed other than a trustee's
deed or a deed of reconveyance, mortgage, deed of trust, or
security agreement, proved by subscribing witness or as
otherwise specified, and the acknowledgment or proof certified
as prescribed by law. (Gov. Code Sec. 27287.)
Existing law requires a person acknowledging an instrument to
verify, as specified, the identity of a subscribing individual
or entity to the instrument to be recorded. (Gov. Code Sec.
1185.)
Existing law provides that any certificate of acknowledgment
taken within this state shall be in a prescribed form and
include the following information:
State of California )
County of___________ )
On______________________________________before me, (here
insert name and title of the officer), personally
appeared_____________________________, who proved to me on the
basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by
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his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the laws of the State
of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signature________________________________ (Seal) (Civ. Code
Sec. 1189(a)(1).)
This bill would repeal the existing acknowledgment form for a
notice of intent to preserve interest and instead require the
notice of intent to contain a certificate of acknowledgment.
COMMENT
1. Stated need for the bill
The author writes:
Until recently, California Government Code Section 27201(a)
has authorized the recordation of an NOV �Notice of
Violation]. Until last year, many clerk-recorders around the
state relied on an Attorney General Opinion (63
Ops.Cal.Atty.Gen. 905) stating that, for the purpose of
interpreting Section 27201, the word "statute" includes local
ordinances.
However, a recent unpublished case out of the Sixth District
Court of Appeal holding otherwise, has cast doubt on the
legality of recording NOVs. In County of Santa Cruz v.
Carrick (2011 WL 1466491), the court held that a local
ordinance is not a "statute" for purposes of Section 27201
and, thus, a county (or city) is not authorized to record an
NOV. The holding in this case 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 notified when there are existing code violations on a
property. AB 1642 addresses this problem.
Further, there is another provision in this bill which relates
to the recordation of Notices of Intent to Preserve Interest.
Civil Code Section 880.340 is a statutory "format" guideline
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for a Notice of Intent to Preserve Interest. County recorders
have determined that this statute conflicts with Government
Code Section 27287 which contains a statutory requirement for
acknowledgement execution prior to recording. The section
states that the acknowledgement used follow Section 1189 or
1199 of the Civil Code. Section 27287 also contains
exceptions to the requirement, but a Notice of Intent to
Preserve Interest is not included as an exception. Thus,
county recorders are concerned that the language in Section
880.340 would be a violation of Government Code Section 27287
because it does not follow Civil Code 1189. This provision
clarifies Section 880.340 so that recordations of Notices of
Intent to Preserve Interest follow the statutory requirement
in Government Code 27287 by including an acknowledgement that
is incompliance with Civil Code 1189.
2. Authorizing recordation of local ordinance documents
Existing law requires a county recorder to accept for
recordation any instrument, paper, or notice that is authorized
or required by statute or court order to be recorded and
prohibits a county recorder from refusing to record any
instrument, paper, or notice that is authorized or required by
statute or court order to be recorded on the basis of its lack
of legal sufficiency. (Gov. Code Sec. 27201(a).) This bill
would require a county recorder to also accept for recordation
any instrument, paper, or notice that is authorized or required
to be recorded by a local ordinance that relates to the
recordation of any instrument, paper, or notice that relates to
real property and prohibit a county recorder from refusing to
record such document for lack of legal sufficiency.
Prior to 1998, county recorders were required to record
documents that were required by law to be recorded.
Subsequently, the Legislature enacted SB 1759 (Ayala, Ch. 779,
Stats. 1998), which instead required county recorders to record
documents required to be recorded by statute or court order.
The legislative history of SB 1759 shows that this change was
made in response to harassment by anti-government groups against
government agencies, public officers, and employees whereby the
anti-government groups were recording false liens and other
encumbrances on property owned by government agencies, public
officers, and employees.
Although no longer specifically authorized to record documents
required to be recorded pursuant to local ordinances, county
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recorders continued to do so in reliance on an Attorney General
Opinion, which determined that "�s]o long as the recording of
particular documents would not be in violation of pertinent
state laws, a county board of supervisors of a general law
county has the power to provide by ordinance for the recording
of such documents in addition to those documents which state law
authorizes to be recorded. However, such documents must be
recorded pursuant to the procedures specified by state law."
(63 Ops.Cal.Atty.Gen. 905 at pp. 1-2.) As such, county
recorders continued to record notices of building and zoning
violations relating to real property in reliance on local
ordinances requiring such notices to be recorded.
However, a recent unpublished court decision has called into
question the validity of recorded NOVs. The Court of Appeal,
Sixth Appellate District, held that, because the statute
requiring court recorders to record documents pursuant to
statutes and court orders, "the County was not authorized to
record the April 2006 notice of violation in the absence of a
statute or court order permitting the recordation." (County of
Santa Cruz v. Carrick (2011) Cal.App.Unpub. LEXIS 2924 at pp.
1-2.)
The Court of Appeal went on to state that "�t]he County also
contends that there is a 'strong public policy to support the
recordation of notices of building and zoning violations,' and
that '�r]ecording such notices protects innocent purchasers of
property by informing them of problems on the property.' We do
not have the power to rewrite a statute in this context. If 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 at p. 53.)
This bill would respond to the Carrick court's statement that
the statute providing for recordation of documents required to
be recorded pursuant to local ordinance be addressed by the
Legislature. The sponsor of this bill, the County of Santa
Clara Board of Supervisors, argues that "�NOVs] are a key code
enforcement tool used by virtually all cities and counties in
California. NOVs serve to put the public on notice that there
are code violations on a property. This information is
particularly important for prospective purchasers and lenders.
In most instances, a recorded NOV has the effect of precluding
the property from being sold or refinanced because lenders will
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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. . . . �This bill] would preserve the ability of
counties and cities to use this valuable code enforcement tool.
More importantly, it would protect consumers."
The League of California Cities argues that this bill clarifies
existing law and the original intent of the Legislature when it
enacted SB 1759. The League of Cities contends that "while
Government Code section 27201 specifically mentions local
ordinances, the �Carrick] court determined that the Legislature
must have intentionally excluded local ordinances as providing
sufficient authority to require recordation of a document such
as a local notice of violation. . . . �W]e believe that
instruments, papers, or notices authorized or required by local
ordinances can be and are typically recorded. Therefore, we
believe that the court erred in its decision as the reference to
local ordinances indicates that the Legislature did contemplate
that local ordinances could authorize such recordations." As
mentioned above, the reasoning behind amending the statute to
provide only for the recordation of documents required pursuant
to "statute or court order" was to address the recording of
false liens and other encumbrances on property owned by
government agencies, public officers, and employees. The
legislative history does not support the Carrick court's
assertion that the Legislature intended to exclude documents
required to be recorded by local ordinance.
As a matter of public policy, individuals and lenders interested
in a particular piece of real property should have sufficient
information regarding the property, including whether the
property is in violation of local building and zoning
requirements. As such, this bill would authorize a county
recorder to record real property documents required to be
recorded pursuant to a local county ordinance.
3. Acknowledgment of a notice of intent to preserve interest in
real property
Existing law provides that documents relating to real property
that are recorded with the county recorder must contain an
acknowledgment by another party witnessing an individual or
entity signing a document to be recorded. However, existing law
requires a notice of intent to preserve interest in real
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property to contain a different prescribed form of
acknowledgment to be signed by a witness to the signing of the
notice of intent to preserve. This bill would conform the
certificate of acknowledgment attached to a notice of intent to
preserve interest to the acknowledgment required for other real
property documents that are recorded.
In 1990, the Legislature recognized the need to replace the
multiple forms of acknowledgments of real property instruments
with a single form to reduce confusion and reduce the number of
documents rejected due to improper notary acknowledgments.
Accordingly, the Legislature enacted AB 2581 (Tucker, Ch. 335,
Stats. 1990) and SB 2251 (Seymour, Ch. 1070, Stats. 1990), which
established one general use form for the acknowledgment of
instruments and most real property document acknowledgment forms
were repealed in favor of the general use form.
However, the acknowledgment required for a notice of intent to
preserve interest in real property appears to have been
overlooked when the acknowledgment forms were updated. This
bill would conform the acknowledgment requirement for a notice
of intent to preserve interest in real property to the
acknowledgment used by other documents pertaining to real
property that are recorded with a county recorder.
Support : American Federation of State, County and Municipal
Employees; California Land Surveyors Association; California
State Association of Counties; City of Carlsbad; City of
Cathedral City; City of Saratoga; County Recorders' Association
of California; League of California Cities; Los Angeles County
District Attorney's Office; Regional Council of Rural Counties;
Town of Los Altos Hills; Town of Los Gatos; Urban Counties
Caucus
Opposition : None Known
HISTORY
Source : Santa Clara County
Related Pending Legislation : None Known
Prior Legislation :
SB 1759 (Ayala, Ch. 779, Stats. 1998) See Background and Comment
2.
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SB 2251 (Seymour, Ch. 1070, Stats. 1990) See Background and
Comment 3.
AB 2581 (Tucker, Ch. 335, Stats. 1990) See Background and
Comment 3.
Prior Vote :
Assembly Floor (Ayes 72, Noes 0)
Assembly Committee on Local Government (Ayes 8, Noes 0)
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