1171. Grants, absolute in terms, are to be recorded in one set of books, and mortgages in another.

Transcription

1 CIVIL CODE SECTION RECORDING TRANSFERS Mode of Recording Instruments entitled to be recorded must be recorded by the County Recorder of the county in which the real property affected thereby is situated. (1170.) Section Eleven Hundred and Seventy. An instrument is deemed to be recorded when, being duly acknowledged or proved and certified, it is deposited in the Recorder's office, with the proper officer, for record Grants, absolute in terms, are to be recorded in one set of books, and mortgages in another The duties of county recorders, in respect to recording instruments, are prescribed by the Government Code The mode of recording transfers of ships registered under the laws of the United States is regulated by Acts of Congress. SECTION Proof and Acknowledgment of Instruments The proof or acknowledgment of an instrument may be made at any place within this state before a justice, retired justice, or clerk of the Supreme Court, a justice, retired justice, or clerk of any court of appeal or judge or retired judge of a superior court The proof or acknowledgment of an instrument may be made before a notary public at any place within this state, or within the county or city and county in this state in which the officer specified below was elected or appointed, before either: (a) A clerk of a superior, municipal, or justice court. (b) A county clerk. (c) A court commissioner. (d) A judge or retired judge of a municipal or justice court. (e) A district attorney. (f) A clerk of a board of supervisors. (g) A city clerk. (h) A county counsel. (i) A city attorney The proof or acknowledgment of an instrument may be made without this state, but within the United States, and within the jurisdiction of the officer, before any of the following: (1) A justice, judge, or clerk of any court of record of the United States. (2) A justice, judge, or clerk of any court of record of any state. (3) A commissioner appointed by the Governor or Secretary of State for that purpose. (4) A notary public.

2 (5) Any other officer of the state where the acknowledgment is made authorized by its laws to take such proof or acknowledgment The proof or acknowledgment of an instrument may be made without the United States, before any of the following: (a) A minister, commissioner, or charge d'affaires of the United States, resident and accredited in the country where the proof or acknowledgment is made. (b) A consul, vice consul, or consular agent of the United States, resident in the country where the proof or acknowledgment is made. (c) A judge of a court of record of the country where the proof or acknowledgment is made. (d) Commissioners appointed by the Governor or Secretary of State for that purpose. (e) A notary public. If the proof or acknowledgment is made before a notary public, the signature of the notary public shall be proved or acknowledged (1) before a judge of a court of record of the country where the proof or acknowledgment is made, or (2) by any American diplomatic officer, consul general, consul, vice consul, or consular agent, or (3) by an apostille (certification) affixed to the instrument pursuant to the terms of The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents Any officer on active duty or performing inactive duty training in the armed forces having the general powers of a notary public pursuant to Section 936 or 1044a of Title 10 of the United States Code (Public Law and ) and any successor statutes may perform all notarial acts for any person serving in the armed forces of the United States, wherever he or she may be, or for any spouse of a person serving in the armed forces, wherever he or she may be, or for any person eligible for legal assistance under laws and regulations of the United States, wherever he or she may be, for any person serving with, employed by, or accompanying such armed forces outside the United States and outside the Canal Zone, Puerto Rico, Guam and the Virgin Islands, and any person subject to the Uniform Code of Military Justice outside of the United States. Any instrument acknowledged by any such officer or any oath or affirmation made before such officer shall not be rendered invalid by the failure to state therein the place of execution or acknowledgment. No seal or authentication of the officer's certificate of acknowledgmentor of any jurat signed by him or her shall be required but the officer taking the acknowledgment shall endorse thereon or attach thereto a certificate substantially in a form authorized by the laws of this state or in the following form: On this the day of, 19_, before me, the undersigned officer, personally appeared known to me (or satisfactorily proven) to be (a) serving in the armed forces of the United States, (b) a spouse of a person serving in the armed forces of the United States, or (c) a person serving with, employed by, or accompanying the armed forces of the United States outside the United States and outside the Canal Zone, Puerto Rico, Guam, and the Virgin Islands, and to be the person whose name is subscribed to the within instrument and acknowledged that he or she executed the same. And the undersigned does further certify that he or she is at the date of this certificate a commissioned officer of the armed forces of the United States having the general powers of a notary public under the provisions of Section 936 or 1044a of Title 10 of the United States Code (Public Law and ). Signature of officer, rank, branch of service and capacity in which signed. To any affidavit subscribed and sworn to before such officer there shall be attached a jurat substantially in the following form:

3 Subscribed and sworn to before me on this day of, 19. Signature of officer, rank, branch of service and capacity in which signed. The recitals contained in any such certificate or jurat shall be prima facie evidence of the truth thereof, and any certificate of acknowledgment, oath or affirmation purporting to have been made by any commissioned officer of the Army, Air Force, Navy, Marine Corps or Coast Guard shall, notwithstanding the omission of any specific recitals therein, constitute presumptive evidence of the existence of the facts necessary to authorize such acknowledgment, oath or affirmation to be taken by the certifying officer pursuant to this section When any of the officers mentioned in Sections 1180, 1181, 1182, and 1183 are authorized by a law to appoint a deputy, the acknowledgment or proof may be taken by such deputy, in the name of his principal (a) The acknowledgment of an instrument shall not be taken unless the officer taking it personally knows, or has satisfactory evidence that the person making the acknowledgment is, the individual who is described in and who executed the instrument. (b) For purposes of this article, "personally knows" means having an acquaintance, derived from association with the individual in relation to other people and based upon a chain of circumstances surrounding the individual, which establishes the individual's identity with at least reasonable certainty. (c) For the purposes of this section "satisfactory evidence" means the absence of any information, evidence, or other circumstances which would lead a reasonable person to believe that the person making the acknowledgment is not the individual he or she claims to be and any one of the following: (1) The oath or affirmation of a credible witness personally known to the officer that the person making the acknowledgment is personally known to the witness and that each of the following are true: (A) The person making the acknowledgment is the person named in the document. (B) The person making the acknowledgment is personally known to the witness. (C) That it is the reasonable belief of the witness that the circumstances of the person making the acknowledgment are such that it would be very difficult or impossible for that person to obtain another form of identification. (D) The person making the acknowledgment does not possess any of the identification documents named in paragraphs (3) and (4). (E) The witness does not have a financial interest in the document being acknowledged and is not named in the document. (2) The oath or affirmation under penalty of perjury of two credible witnesses, whose identities are proven to the officer upon the presentation of satisfactory evidence, that each statement in paragraph (1) of this subdivision is true. (3) Reasonable reliance on the presentation to the officer of any one of the following, if the document is current or has been issued within five years: (A) An identification card or driver's license issued by the California Department of Motor Vehicles. (B) A passport issued by the Department of State of the United States. (4) Reasonable reliance on the presentation of any one of the following, provided that a document specified in subparagraphs (A) to (E), inclusive, shall either be current or have been issued within five years and shall contain a photograph and description of the person named on it, shall be signed by the person, shall bear a serial

4 or other identifying number, and, in the event that the document is a passport, shall have been stamped by the United States Immigration and Naturalization Service: (A) A passport issued by a foreign government. (B) A driver's license issued by a state other than California or by a Canadian or Mexican public agency authorized to issue drivers' licenses. (C) An identification card issued by a state other than California. (D) An identification card issued by any branch of the armed forces of the United States. (E) An inmate identification card issued on or after January 1, 1988, by the Department of Corrections, if the inmate is in custody. (F) An inmate identification card issued prior to January 1, 1988, by the Department of Corrections, if the inmate is in custody. (d) An officer who has taken an acknowledgment pursuant to this section shall be presumed to have operated in accordance with the provisions of law. (e) Any party who files an action for damages based on the failure of the officer to establish the proper identity of the person making the acknowledgment shall have the burden of proof in establishing the negligence or misconduct of the officer. (f) Any person convicted of perjury under this section shall forfeit any financial interest in the document An officer taking the acknowledgment of an instrument shall endorse thereon or attach thereto a certificate substantially in the form prescribed in Section (a) Any certificate of acknowledgment taken within this state shall be in substantially the following form: State of California ) County of ) On before me, (here insert name and title of the officer), personally appeared, personally known to me (or 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 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. WITNESS my hand and official seal. Signature (Seal) (b) Any certificate of acknowledgment taken in another place shall be sufficient in this state if it is taken in accordance with the laws of the place where the acknowledgment is made. (c) An acknowledgment provided prior to January 1, 1993, and conforming to applicable provisions of former Sections 1189, 1190, 1190a, , 1191, and 1192, as repealed by Chapter 335 of the Statutes of 1990, shall have the same force and effect as if those sections had not been repealed The certificate of acknowledgment of an instrument executed on behalf of an incorporated or unincorporated entity by a duly authorized person in the form specified in Section 1189 shall be prima facie evidence that the instrument is the duly authorized act of the entity named in the instrument and shall be conclusive evidence thereof in favor of any good faith purchaser, lessee, or encumbrancer. "Duly authorized person," with respect to a domestic or foreign corporation, includes the president, vice president, secretary, and assistant secretary of the corporation.

5 1193. Officers taking and certifying acknowledgments or proof of instruments for record, must authenticate their certificates by affixing thereto their signatures, followed by the names of their offices; also, their seals of office, if by the laws of the State or country where the acknowledgment or proof is taken, or by authority of which they are acting, they are required to have official seals Proof of the execution of an instrument, when not acknowledged, may be made either: 1. By the party executing it, or either of them; or, 2. By a subscribing witness; or, 3. By other witnesses, in cases mentioned in Section If by a subscribing witness, that witness shall be personally known to the officer taking the proof to be the person whose name is subscribed to the instrument as a witness, or shall be proved to be such by the oath of a credible witness who is personally known to the officer taking the proof, as defined in subdivision (b) of Section The subscribing witness must prove that the person whose name is subscribed to the instrument as a party is the person described in it, and that such person executed it, and that the witness subcribed his name thereto as a witness The execution of an instrument may be established by proof of the handwriting of the party and of a subscribing witness, if there is one, in the following cases: 1. When the parties and all the subscribing witnesses are dead; or, 2. When the parties and all the subscribing witnesses are non residents of the State; or, 3. When the place of their residence is unknown to the party desiring the proof, and cannot be ascertained by the exercise of due diligence; or, 4. When the subscribing witness conceals himself, or cannot be found by the officer by the exercise of due diligence in attempting to serve the subpoena or attachment; or, 5. In case of the continued failure or refusal of the witness to testify, for the space of one hour, after his appearance. (1199.) Section Eleven Hundred and Ninety nine. The evidence taken under the preceding section must satisfactorily prove to the officer the following facts: One The existence of one or more of the conditions mentioned therein; and, Two That the witness testifying knew the person whose name purports to be subscribed to the instrument as a party, and is well acquainted with his signature, and that it is genuine; and, Three That the witness testifying personally knew the person who subscribed the instrument as a witness, and is well acquainted with his signature, and that it is genuine; and, Four The place of residence of the witness An officer taking proof of the execution of any instrument must, in his certificate indorsed thereon or attached thereto, set forth all the matters required by law to be done or known by him, or proved before him on the proceeding, together with the names of all the witnesses examined before him, their places of residence respectively, and the substance of their testimony Officers authorized to take the proof of instruments are authorized in such proceedings: 1. To administer oaths or affirmations, as prescribed in Section 2093, CODE OF CIVIL PROCEDURE;

6 2. To employ and swear interpreters; 3. To issue subpoena, as prescribed in Section 1986, CODE OF CIVIL PROCEDURE; 4. To punish for contempt, as prescribed in Sections 1991, 1993, 1994, CODE OF CIVIL PROCEDURE. The civil damages and forfeiture to the party aggrieved are prescribed in Section 1992, CODE OF CIVIL PROCEDURE When the acknowledgment or proof of the execution of an instrument is properly made, but defectively certified, any party interested may have an action in the superior court to obtain a judgment correcting the certificate Any person interested under an instrument entitled to be proved for record, may institute an action in the superior court against the proper parties to obtain a judgment proving such instrument A certified copy of the judgment in a proceeding instituted under either of the two preceding sections, showing the proof of the instrument, and attached thereto, entitles such instrument to record, with like effect as if acknowledged The legality of the execution, acknowledgment, proof, form, or record of any conveyance or other instrument made before this Code goes into effect, executed, acknowledged, proved, or recorded is not affected by anything contained in this Chapter, but depends for its validity and legality upon the laws in force when the act was performed All conveyances of real property made before this Code goes into effect, and acknowledged or proved according to the laws in force at the time of such making and acknowledgment or proof, have the same force as evidence, and may be recorded in the same manner and with the like effect, as conveyances executed and acknowledged in pursuance of this Chapter Any instrument affecting the title to real property, one year after the same has been copied into the proper book of record, kept in the office of any county recorder, imparts notice of its contents to subsequent purchasers and encumbrancers, notwithstanding any defect, omission, or informality in the execution of the instrument, or in the certificate of acknowledgment thereof, or the absence of any such certificate; but nothing herein affects the rights of purchasers or encumbrancers previous to the taking effect of this act. Duly certified copies of the record of any such instrument may be read in evidence with like effect as copies of an instrument duly acknowledged and recorded; provided, when such copying in the proper book of record occurred within five years prior to the trial of the action, it is first shown that the original instrument was genuine. SECTION Effect of Recording, or the Want Thereof Every conveyance of real property or an estate for years therein acknowledged or proved and certified and recorded as prescribed by law from the time it is filed with the recorder for record is constructive notice of the contents thereof to subsequent purchasers and mortgagees; and a certified copy of such a recorded conveyance may be recorded in any other county and when so recorded the record thereof shall have the same force and effect as though it was of the original conveyance and where the original conveyance has been recorded in any county wherein the property therein

7 mentioned is not situated a certified copy of the recorded conveyance may be recorded in the county where such property is situated with the same force and effect as if the original conveyance had been recorded in that county Every conveyance of real property or an estate for years therein, other than a lease for a term not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same property, or any part thereof, in good faith and for a valuable consideration, whose conveyance is first duly recorded, and as against any judgment affecting the title, unless the conveyance shall have been duly recorded prior to the record of notice of action The term "conveyance," as used in Sections 1213 and 1214, embraces every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or incumbered, or by which the title to any real property may be affected, except wills No power contained in an instrument to convey or execute instruments affecting real property which has been recorded is revoked by any act of the party by whom it was executed, unless the instrument containing such revocation is also acknowledged or proved, certified and recorded, in the same office in which the instrument containing the power was recorded An unrecorded instrument is valid as between the parties thereto and those who have notice thereof A certified copy of an instrument affecting the title to real property, once recorded, or a certified copy of the record of such instrument may be recorded in any other county, and, when so recorded, the record thereof has the same force and effect as though it was of the original instrument Oil and gas leases may be acknowledged or proved, certified and recorded in like manner and with like effect, as grants of real property; provided, however, that an oil and gas lease may be recorded and constructive notice of the same and the contents thereof given in the following manner: Any person may record in the office of county recorder of any county fictitious oil and gas leases. Such fictitious oil and gas leases need not be acknowledged, or proved, or certified, to be recorded or entitled to record. Such oil and gas leases shall have noted upon the face thereof that they are fictitious. The county recorder shall index and record such fictitious oil and gas leases in the same manner as other oil and gas leases are recorded, and shall note on all indices and records of the same that they are fictitious. Thereafter, any of the provisions of any such recorded fictitious oil and gas lease may be included for any and all purposes in any oil and gas lease by reference therein to any such provisions, without setting the same forth in full; provided, such fictitious oil and gas lease is of record in the county in which the oil and gas lease adopting or including by reference any of the provisions thereof is recorded. Such reference shall contain a statement, as to each county in which the oil and gas lease containing such a reference is recorded, of the date such fictitious oil and gas lease was recorded, the county recorder's office wherein it is recorded, and the book or volume and the first page of the records or the recorder's instrument number in the recorder's office wherein and at which any such fictitious oil and gas lease was recorded, and a statement by paragraph numbers or any other method that will definitely identify the same, of the specific provisions of any such fictitious oil and gas lease that are being so adopted and included therein. The recording of any such oil and gas lease which has included therein any such provisions by reference as aforesaid shall operate as constructive notice of the whole thereof including the terms, as a part of the written contents of any such oil and gas lease, of any such provisions so included by reference as though the same were written in full therein. The parties bound or to be bound

8 by provisions so adopted and included by reference shall be bound thereby in the same manner and with like effect for all purposes as though such provisions had been and were set forth in full in any such oil and gas lease. Whenever a document or paper is presented for recordation on which is set forth, apart and separated from any other writing, typing or printing thereon (1) an oil and gas lease that refers to and incorporates therein provisions of a fictitious oil and gas lease as provided herein, or (2) an oil and gas lease that refers to and incorporates therein provisions of some other instrument theretofore recorded in the office of any county recorder, and (3) such oil and gas lease, set forth on such document or paper, is, of itself, entitled to recordation, then any such other writing, typing or printing on such document or paper, whether on the reverse side from where such oil and gas lease is set forth or on the same side thereof or on the following pages, shall not be recorded by the county recorder to whom such document or paper is presented for recordation if such other writing, typing or printing is preceded by the words or clearly marked, "do not record" or "not to be recorded" or the like. In such case the county recorder shall record only the oil and gas lease set forth on such paper or document and shall not be liable for so doing, any other provisions of law to the contrary notwithstanding Contracts for the purchase or sale of standing timber or trees, for severance or otherwise, and all instruments in writing by which any estate or interest in, or right to cut, standing timber or trees is created, aliened, mortgaged or encumbered or by which the title to any standing timber or trees may be affected, may be acknowledged or proved, certified and recorded in like manner and with like effect, as grants of real property, and all statutory provisions relating to the recordation or nonrecordation of conveyances of real property and to the effect thereof shall apply to such contracts and instruments with like effect. Any such contracts for purchase and sale or instruments in writing affecting the title to standing timber or trees, executed and delivered before the effective date of the amendment of this section at the 1959 Regular Session of the Legislature but unrecorded before such date, shall become subject to all statutory provisions relating to the recordation or nonrecordation of conveyances of real property and to the effect thereof one year from said effective date.