Untitled California Attorney General Opinion ( 1999 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
BILL LOCKYER
Attorney General
:
OPINION : No. 99-201
:
of : May 11, 1999
:
BILL LOCKYER :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
THE HONORABLE THOMAS F. CASEY III, COUNTY COUNSEL,
COUNTY OF SAN MATEO, has requested an opinion on the following question:
May a county recorder accept for recordation a document, denominated a
“Notice of Disclosure,” that gives notice of the proximity of an airport, power lines, and
potential traffic and parking problems to specified real property?
CONCLUSION
A county recorder may not accept for recordation a document, denominated
a “Notice of Disclosure,” that gives notice of the proximity of an airport, power lines, and
potential traffic and parking problems to specified real property.
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ANALYSIS
The present inquiry concerns the authority of a county recorder to accept for
recording a “Notice of Disclosure” as a separate document not part of a grant deed or other
legal document. The document would give notice of the proximity of perceived negative
conditions, such as an airport, power lines, and projected traffic problems or parking
limitations, to specified parcels of property. The purpose would be to make known through
a title report on the property the existence of the described conditions to prospective
purchasers. We conclude that a county recorder may not record such a document.
Several statutes govern the recording of documents by a county recorder.
Government Code section 273221 provides:
“The recorder shall record . . . all instruments, papers and notices the
recording of which is required or permitted by law.”
Section 27201, subdivision (a), provides in part:
“The recorder shall, upon payment of proper fees and taxes, accept for
recordation any instrument, paper, or notice which 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. The county recorder shall not refuse to record
any instrument, paper, or notice which is authorized or required by statute or
court order to be recorded on the basis of its lack of legal sufficiency.”
In 65 Ops.Cal.Atty.Gen. 321, 324-325 (1982), we expressed the view that “. . .
it is the ministerial duty of the county recorder to record a document which is proper in form
and complies with statutory prerequisites . . . .” Thereafter, section 27201 was enacted and
became effective on January 1, 1983. (Stats. 1982, ch. 285, § 1.) In 67 Ops.Cal.Atty.Gen.
93 (1984), we determined that the second sentence of section 27201, providing that a county
recorder shall not refuse to record any instrument which is authorized or required to be
recorded on the basis of its lack of legal sufficiency, did not supersede our earlier
determination that a document presented for recording must be proper in form and comply
with statutory prerequisites. (See also 77 Ops.Cal.Atty.Gen. 242, 246 (1994).)
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Undesignated section references herein are to the Government Code.
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Examining the statutory prerequisites for recordation, we find that 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.”
Section 27279, subdivision (a), states:
“ ‘Instrument,’ as used in this chapter, means a written paper signed by
a person or persons transferring the title to, or giving a lien on real property,
or giving a right to a debt or duty.”
Here, the proposed Notice of Disclosure would not affect or purport to affect the title or
possession of, nor would it grant or purport to grant a lien, debt, or duty respecting real
property.
In this regard, 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, supra [county recorder not authorized to record
unlicensed declaration of marriage].) In 77 Ops.Cal.Atty.Gen. 242, supra, we concluded
that a county recorder had no statutory duty to record a “Notice of Intent to Preserve an
Interest,” which purported to declare 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 observed that the
document neither affected the title to real property within the meaning of section 27280, nor
did it “preserve an interest” in real property as specifically authorized by law. (Id., at p.
244.)
In Ward v. Superior Court (1997) 55 Cal. App. 4th 60, the court considered
whether a homeowners association could record a document, entitled “Notice of Non-
Compliance with Declaration of Restrictions,” which declared that a particular homeowner
was in violation of the association’s covenants, conditions, and restrictions. The court,
noting that the document did not affect title to or possession of real property within the
meaning of section 27280 and was not an “instrument” as defined in section 27279,
concluded that there was no authority for its recordation. (Id., at pp. 64-65.) The court
explained:
“A county recorder is obligated to accept for recordation only those
documents which are ‘authorized or required by law to be recorded.’ (Gov.
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Code, § 27201.) There is no authority for the proposition that a county
recorder either must or may record documents which are not ‘authorized or
required by law to be recorded,’ i.e., there is no authority for the proposition
that the recorder must or may accept unauthorized documents for recordation.
Nor is there any authority for the proposition that parties may by private
contract create a right to record, for their own private purposes, documents
which are not ‘authorized or required by law to be recorded.’ ” (Id., at p. 66.)
The court’s observations are consistent with the rule that a public officer has only such
powers as are conferred by law.
Inasmuch as no authority for recordation may be found (cf. Ward v. Superior
Court, supra, 55 Cal.App.4th at 66; 77 Ops.Cal.Atty.Gen., supra, at 244), we conclude that
a county recorder may not accept for recordation a document, denominated a “Notice of
Disclosure,” that gives notice of the proximity of an airport, power lines, and potential traffic
and parking problems to specified real property.
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