By Daniel Edstrom
DTC Systems, Inc.
Those who haven’t read these should read through them for educational purposes.
California Civil Code Selections
Property of any kind may be transferred, except as otherwise provided by this Article.
A mere possibility, not coupled with an interest, cannot be transferred.
A right of reentry, or of repossession for breach of condition subsequent, can be transferred.
Any person claiming title to real property in the adverse possession of another may transfer it with the same effect as if in actual possession.
A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor.
A grant cannot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made.
A grant may be deposited by the grantor with a third person, to be delivered on performance of a condition, and, on delivery by the depositary, it will take effect. While in the possession of the third person, and subject to condition, it is called an escrow.
All written escrow instructions executed by a buyer or seller, whether prepared by a person subject to Division 6 (commencing with Section 17000) of the Financial Code, or by a person exempt from that division under Section 17006 of the Financial Code, shall contain a statement in not less than 10-point type which shall include the license name and the name of the department issuing the license or authority under which the person is operating. This section shall not apply to supplemental escrow instructions or modifications to escrow instructions. This section shall become operative on July 1, 1993.
Redelivering a grant of real property to the grantor, or canceling it, does not operate to retransfer the title.
Grants are to be interpreted in like manner with contracts in general, except so far as is otherwise provided in this Article.
A clear and distinct limitation in a grant is not controlled by other words less clear and distinct.
If the operative words of a grant are doubtful, recourse may be had to its recitals to assist the construction.
A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.
If several parts of a grant are absolutely irreconcilable, the former part prevails.
Words of inheritance or succession are not requisite to transfer a fee in real property.
An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing.
Any person in whom the title of real estate is vested, who shall afterwards, from any cause, have his or her name changed, must, in any conveyance of said real estate so held, set forth the name in which he or she derived title to said real estate. Any conveyance, though recorded as provided by law, which does not comply with the foregoing provision shall not impart constructive notice of the contents thereof to subsequent purchasers and encumbrancers, but such conveyance is valid as between the parties thereto and those who
have notice thereof.
Every grant of an estate in real property is conclusive against the grantor, also against every one subsequently claiming under him, except a purchaser or incumbrancer who in good faith and for a valuable consideration acquires a title or lien by an instrument that is first duly recorded.
Where a grant is made upon condition subsequent, and is subsequently defeated by the non-performance of the condition, the person otherwise entitled to hold under the grant must reconvey the property to the grantor or his successors, by grant, duly acknowledged for record.
An instrument purporting to be a grant of real property, to take effect upon condition precedent, passes the estate upon the performance of the condition.
From the use of the word "grant" in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs, and assigns, are implied, unless restrained by express terms contained in such conveyance:
1. That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee;
2. That such estate is at the time of the execution of such conveyance free from incumbrances done, made, or suffered by the grantor, or any person claiming under him.
Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.
The term "incumbrances" includes taxes, assessments, and all liens upon real property.
Instruments entitled to be recorded must be recorded by the County Recorder of the county in which the real property affected thereby is situated.
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.
(a) The acknowledgment of an instrument shall not be taken unless the officer taking it 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 section "satisfactory evidence" means the absence of information, evidence, or other circumstances that 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) (A) The oath or affirmation of a credible witness personally known to the officer, whose identity is proven to the officer upon presentation of a document satisfying the requirements of paragraph (3) or (4), that the person making the acknowledgment is personally known to the witness and that each of the following are true:
(i) The person making the acknowledgment is the person named in the document.
(ii) The person making the acknowledgment is personally known to the witness.
(iii) 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.
(iv) The person making the acknowledgment does not possess any of the identification documents named in paragraphs (3) and (4).
(v) The witness does not have a financial interest in the document being acknowledged and is not named in the document.
(B) A notary public who violates this section by failing to obtain the satisfactory evidence required by subparagraph (A) shall be subject to a civil penalty not exceeding ten thousand dollars ($10,000). An action to impose this civil penalty may be brought by the Secretary of State in an administrative proceeding or a public prosecutor in superior court, and shall be enforced as a civil judgment. A public prosecutor shall inform the secretary of any civil penalty imposed under this subparagraph.
(2) The oath or affirmation under penalty of perjury of two credible witnesses, whose identities are proven to the officer upon the presentation of a document satisfying the requirements of paragraph (3) or (4), that each statement in paragraph (1) 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 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 (F), 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 or other identifying number, and, in the event that the document is a passport, shall have been stamped by the United States Citizenship and Immigration Services of the Department of Homeland Security:
(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 driver's 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 and Rehabilitation, if the inmate is in custody.
(F) An employee identification card issued by an agency or office of the State of California, or by an agency or office of a city, county, or city and county in this state.
(G) An inmate identification card issued prior to January 1, 1988, by the Department of Corrections and Rehabilitation, if the inmate is in custody.
(c) An officer who has taken an acknowledgment pursuant to this section shall be presumed to have operated in accordance with the provisions of law.
(d) A 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.
(e) A 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 1189.
(a) (1) Any certificate of acknowledgment taken within this state shall be in the following form:
State of California )
County of___________ )
(here insert name and title of the officer),
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 his/her/their signature(s) on the
instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed
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.
(2) A notary public who willfully states as true any material fact that he or she knows to be false shall be subject to a civil penalty not exceeding ten thousand dollars ($10,000). An action to impose a civil penalty under this subdivision may be brought by the Secretary of State in an administrative proceeding or any public prosecutor in superior court, and shall be enforced as a civil judgment. A public prosecutor shall inform the secretary of any civil penalty imposed under this section.
(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) On documents to be filed in another state or jurisdiction of the United States, a California notary public may complete any acknowledgment form as may be required in that other state or jurisdiction on a document, provided the form does not require the notary to determine or certify that the signer holds a particular representative capacity or to make other determinations and certifications not allowed by California law.
(d) An acknowledgment provided prior to January 1, 1993, and conforming to applicable provisions of former Sections 1189, 1190, 1190a, 1190.1, 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.
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.
(a) Proof of the execution of an instrument, when not acknowledged, may be made any of the following:
1. By the party executing it, or either of them.
2. By a subscribing witness.
3. By other witnesses, in cases mentioned in Section 1198.
(b) Proof of the execution of a grant deed, mortgage, deed of trust, quitclaim deed, or security agreement is not permitted pursuant to Section 27287 of the Government Code, though proof of the execution of a trustee's deed or deed of reconveyance is permitted.
(c) Any certificate for proof of execution taken within this state may be in the following form, although the use of other, substantially similar forms is not precluded:
State of California )
County of __________ )
On ____ (date), before me, the undersigned, a notary public for the state, personally appeared ____ (subscribing witness's name), personally known to me (or proved to me on the oath of ____ [credible witness's name], who is personally known to me) to be the person whose name is subscribed to the within instrument, as a witness thereto, who, being by me duly sworn, deposed and said that he/she was present and saw ____ (nameUs] of principalUs]), the same person(s) described in and whose name(s) is/are
subscribed to the within and annexed instrument in his/her/their authorized capacity(ies) as (a) party(ies) thereto, execute the same, and that said affiant subscribed his/her name to the within instrument as a witness at the request of ____ (nameUs] of principalUs]).
WITNESS my hand and official seal.
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.
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.
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.
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.
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.
1216 – Revocation
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.