BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1642|
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CONSENT
Bill No: AB 1642
Author: Gordon (D), et al.
Amended: 3/29/12 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/19/12
AYES: Evans, Harman, Blakeslee, Corbett, Leno
ASSEMBLY FLOOR : 72-0, 4/23/12 - See last page for vote
SUBJECT : County recorder: recordation of documents
SOURCE : Santa Clara County Board of Supervisors
DIGEST : This bill repeals 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 authorizes a county
recorder to record a real property document that is
required by a local ordinance to be recorded.
ANALYSIS : 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 statutes and local
ordinances, and is photographically reproducible. Existing
law prohibits a county recorder from refusing to record any
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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. (Government Code (GOV)
Section 27201(a))
This bill requires 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 prohibits 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.
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. (Civil Code (CIV) Section
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 Section 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: (1) a person who claims the interest;
or (2) 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 Section
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 Section 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 Section 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
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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 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 repeals 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/21/12)
Santa Clara County Board of Supervisors (source)
AFSCME
California State Association of Counties
County Recorders' Association of California
League of California Cities
ARGUMENTS IN SUPPORT : 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
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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 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.
ASSEMBLY FLOOR : 72-0, 4/23/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Buchanan, Butler, Campos, Carter, Chesbro, Conway, Cook,
Dickinson, Donnelly, Eng, Feuer, Fong, Fuentes, Beth
Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell, Grove,
Hagman, Halderman, Hall, Harkey, Hayashi, Roger
Hern�ndez, Hill, Huber, Hueso, Huffman, Jeffries, Jones,
Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor,
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Mendoza, Miller, Mitchell, Monning, Morrell, Nielsen,
Norby, Olsen, Pan, Perea, V. Manuel P�rez, Portantino,
Silva, Skinner, Solorio, Swanson, Torres, Valadao,
Wagner, Wieckowski, Williams, Yamada, John A. P�rez
NO VOTE RECORDED: Brownley, Charles Calderon, Cedillo,
Davis, Fletcher, Furutani, Nestande, Smyth
RJG:k 6/21/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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