Untitled California Attorney General Opinion ( 1994 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 94-808
of :
: November 18, 1994
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. DA VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE MARGARET SNYDER, MEMBER OF THE CALIFORNIA
STATE ASSEMBLY, has requested an opinion on the following question:
Is a county recorder required to accept for recordation a "Notice of Intent to Preserve an
Interest" that specifies an amount of money as the interest in the property and containing the "castle
doctrine," i.e., "a man's home is his castle and, hence, he may use all manner of force including deadly
force to protect it and its inhabitants from attack?"
CONCLUSION
A county recorder is not required to accept for recordation a "Notice of Intent to
Preserve an Interest" that specifies an amount of money as the interest in the property and containing
the "castle doctrine," i.e., "a man's home is his castle and, hence, he may use all manner of force
including deadly force to protect it and its inhabitants from attack."
ANALYSIS
We are asked to determine whether a county recorder must record a document the
principal substance of which declares applicable to the owner's property the "castle doctrine," i.e., "a
man's home is his castle and, hence, he may use all manner of force including deadly force to protect it
and its inhabitants from attack." We conclude that a county recorder has no statutory duty to record
such a document containing the castle doctrine.
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The force which may be justified in defense of persons or property within one's
residence is prescribed by law. (See People v. Brown (1992) 6 Cal. App. 4th 1489, 1496-1499; People
v. Owen (1991) 226 Cal. App. 3d 996, 1003-1007; People v. Gleghorn (1987) 193 Cal. App. 3d 196,
200-204.) Of course, the mere recording of some other standard of justification would not effect a
change in the law applicable to the parcel to which it refers or to the consequences for a violation of the
law. Indeed, it is settled that a recorded instrument which is not authorized by statute to be recorded,
and self-serving declarations recorded in a chain of title which are not operative in transferring or
creating a right or title, do not impart constructive notice to subsequent purchasers. (Brown v. Johnson
(1979) 98 Cal. App. 3d 844, 849-850.) Nevertheless, it remains to be determined whether the
documentary recitation in question must be recorded at all.
Government Code section 27201, subdivision (a)1 provides in part as follows:
"The recorder shall, upon payment of proper fees and taxes, accept for
recordation any instrument, paper, or notice which is authorized or required by law 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. The county recorder shall not refuse
to record any instrument, paper, or notice which is authorized or required by law to be
recorded on the basis of its lack of legal sufficiency."2
Section 27320 provides:
"When any instrument authorized by law to be recorded is deposited in the
recorder's office for record, the recorder shall endorse upon it in the order in which it is
deposited, the year, month, day, hour, and minute of its reception, and the amount of
fees for recording. The recorder shall record it without delay . . . ."
In view of the foregoing, we do not consider as the basis for our determination the legal insufficiency of
the recitation contained within the document in question, but rather whether the instrument satisfies the
requirements of section 27201, subdivision (a). Specifically, is the questioned document "authorized
or required by law to be recorded," and does it meet "recording requirements of state statutes"?
Preliminarily, we note that a public officer has only such powers as have been
conferred by law, expressly or by implication. (See 75 Ops.Cal.Atty.Gen. 1 (1992) [Secretary of State
not authorized to register domestic partners as unincorporated nonprofit corporations]; 65
Ops.Cal.Atty.Gen. 321 (1982)[county recorder not authorized to record unlicensed declaration of
marriage].) Also, while we have determined that a county may provide by ordinance for the recording
1
Undesignated section references prior to footnote 3 are to the Government Code.
2
The scope of our opinion herein pertains to documents executed after July 1, 1994, when the current language of section
27201 became operative. (Stats. 1992, ch. 87, ' 9.)
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of additional documents which would not conflict with pertinent state statutes, provided that such
documents are filed in accordance with procedures prescribed by state law (63 Ops.Cal.Atty.Gen. 905
(1980)), it is assumed for purposes of this opinion that no local ordinance authorizes the recording of
the subject document.
With respect to the prerequisite legal authority to record the proferred document, it is to
be observed generally that a document is authorized for recording by any one of more than 100 express
provisions of law contained in the various codes. (See 3 Miller & Starr, Current Law of Cal. Real
Estate (2d ed. 1989) ' 8.5.) No suggestion is made that the castle doctrine is referenced in any specific
authorizing statute.
For example, regarding recordable documents affecting realty, section 27280,
subdivision (a) provides: "Any instrument or judgment affecting the title to or possession of real
property may be recorded pursuant to this chapter."3 The document in question neither affects the title
to real property within the meaning of section 27280, nor, as we have seen, does it effect a change or
modification of the law respecting the right of possession or defense of real property.
The document under review is entitled "Notice of Intent to Preserve an Interest."
Pursuant to the Marketable Record Title Act of 1982 (Civ. Code, '' 880.020-887.090; hereafter
"Act"),4 a notice of intent to preserve an interest in real property may be recorded under specified
conditions. Section 880.310, subdivision (a) provides:
"If the time within which an interest in real property expires pursuant to this
title 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 pursuant to this title. Recordation of a
notice of intent to preserve an interest in real property after the interest has expired
pursuant to this title does not preserve the interest."
Section 880.330 states:
"Subject to all statutory requirements for recorded documents:
"(a) A notice of intent to preserve an interest in real property shall be in
writing and signed and verified by or on behalf of the claimant. If the notice is made
on behalf of a claimant, the notice shall include a statement of the authority of the
person making the notice.
3
Of course, a grant deed is an instrument affecting title to realty. (Civ. Code, ' 1053; Klamath Land & Cattle Company
v. Roemer (1970) 12 Cal. App. 3d 613, 618.) Accordingly, such an instrument containing sufficient information and satisfying
the requirements of law would, upon presentation, be accepted for recordation. (' 27201.) The duty to record would not be
vitiated by the inclusion of an extraneous recitation, such as the castle doctrine, which is void and separable from the import of
the instrument. (Cf. Wharton v. Mollinet (1951) 103 Cal. App. 2d 710, 713.)
4
Undesignated section references hereafter are to the Civil Code.
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"(b) The notice shall contain all of the following information:
"(1) The name and mailing address of the claimant. If the notice is made by
or on behalf of more than one claimant the notice shall contain the name and mailing
address of each claimant.
"(2) A statement of the character of the interest claimed. The statement shall
include a reference by record location to the recorded document that creates or
evidences the interest in the claimant.
"(3) A legal description of the real property in which the interest is claimed.
The description may be the same as that contained in the recorded documents that
creates or evidences the interest in the claimant."
Section 880.350 provides:
"(a) A notice of intent to preserve an interest in real property shall be recorded
in the county in which the real property is situated.
"(b) The county recorder shall index a notice of intent to preserve an interest
in real property in the index of grantors and grantees. The index entry shall be for the
grantor, and for the purpose of this index, the claimant under the notice shall be deemed
to be the grantor. If a notice of intent to preserve is recorded by or on behalf of more
than one claimant, each claimant shall be deemed to be a grantor and a separate index
entry shall be made for each claimant."
The purposes of the Act are to provide for the extinguishment of remote interests in real property and
for the means to preserve from extinguishment such interests, as explained in section 880.020,
subdivision (b):
"It is the purpose of the Legislature in enacting this title to simplify and
facilitate real property title transactions in furtherance of public policy by enabling
persons to rely on record title to the extent provided in this title, with respect to
property interests specified in this title, subject only to the limitations expressly
provided in this title and notwithstanding any provision or implication to the contrary in
any other statute or in the common law. This title shall be liberally construed to effect
the legislative purpose." (Emphasis added.)
The property interests specified in the Act that would otherwise expire unless a notice of intent to
preserve the interest is recorded (' 880.310, subd. (a))5 consist of ancient mortgages and deeds of trust
5
Interests that are not subject to expiration under the Act's provisions include possessory interests and interests held by
public entities. (' 880.240.)
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('' 882.020-882.040), mineral rights ('' 883.110-883.270), unexercised options ('' 884.010-884.030),
powers of termination ('' 885.010-885.070), unperformed contracts for sale ('' 886.010-886.050), and
abandoned easements ('' 887.010-887.090). The interest herein sought to be preserved is a specified
amount of money, presumably the amount invested in the property for which the castle doctrine is
declared. The interest is claimed to exist as a result of a grant deed recorded on the property.
Obviously, such interest is not described in the Act, and accordingly, the Act provides no authority for
its recordation.
Finally, we consider whether the document in question satisfies the recording
requirements of state statutes. In 67 Ops.Cal.Atty.Gen. 93 (1984) we determined that the provision
precluding the county recorder from refusing to record any instrument "on the basis of its lack of legal
sufficiency" (Gov. Code, ' 27201, subd. (a)) did not set aside the need for documents to comply with
the recording prerequisites of Government Code sections 27280-27296, or for the county recorder to
ensure that a document complies before recording it.6 Nor do we now suppose that Government Code
section 27201 sets aside or impairs the need for documents to comply with the recording prerequisites
of the Act under which the purported interest is sought to be preserved. Since the castle doctrine is
contrary to the general law which, as amended from time to time, solely determines and defines a
person's rights and interests in real property, the recording requirement of providing "a reference by
record location to the recorded document that creates or evidences the interest in the claimant" ('
880.330, subd. (b)(2)) cannot be met.
It is concluded that a county recorder is not required to accept or recordation a "Notice
of Intent to Preserve an Interest" that specifies an amount of money as the interest in the property and
containing the castle doctrine, i.e., "a man's home is his castle and, hence, he may use all manner of
force including deadly force to protect it and its inhabitants from attack."
*****
6
In another context, we determined that it is the ministerial duty of a county recorder to record a document which is
proper in form provided that it complies with statutory prerequisites. (65 Ops.Cal.Atty.Gen., supra, 324-325.)
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