Untitled California Attorney General Opinion

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General
:
OPINION : No. 18-303
:
of : August 23, 2019
:
XAVIER BECERRA :
Attorney General :
:
ANYA M. BINSACCA :
Deputy Attorney General :
:
________________________________________________________________________
THE HONORABLE RICHARD ROTH, MEMBER OF THE STATE SENATE,
has requested an opinion on the following question:
Government Code section 27388.1, a statute within the Building Homes and Jobs
Act, imposes a $75 fee for recording various real estate documents. Is a “record of survey,”
as described in the Professional Land Surveyors’ Act, subject to this fee?
CONCLUSION
Yes. A record of survey is subject to the $75 recording fee required by Government
Code section 27388.1, unless an exception set forth in that statute applies.
1
18-303
ANALYSIS
Government Code section 27388.1 imposes a new recording fee on real estate
documents. The purpose of the new fees is to “establish a permanent, ongoing source or
sources of funding dedicated to affordable housing development.”1
Section 27388.1 provides that, as of January 1, 2018, an extra fee of $75 must be
paid “at the time of recording of every real estate instrument, paper, or notice required or
permitted by law to be recorded, except those expressly exempted . . . .”2 We have been
asked for our opinion whether a record of survey is subject to the new fee. In order to
answer the question, we must consider whether a record of survey is the kind of document
that was meant to be included in the new rule.
The Professional Land Surveyors’ Act3 provides that records of survey may be filed
with the county surveyor in certain circumstances,4 and must be filed with the county
surveyor in others.5 In either case, the county surveyor must then “present [the record of
1
Stats. 2017, ch. 364, § 2(b)(17).
2
Gov. Code, § 27388.1, subd. (a)(1) states:
Commencing January 1, 2018, and except as provided in paragraph (2),
in addition to any other recording fees specified in this code, a fee of seventy-
five dollars ($75) shall be paid at the time of recording of every real estate
instrument, paper, or notice required or permitted by law to be recorded,
except those expressly exempted from payment of recording fees, per each
single transaction per parcel of real property. The fee imposed by this section
shall not exceed two hundred twenty-five dollars ($225). “Real estate
instrument, paper, or notice” means a document relating to real property,
including, but not limited to, the following: deed, grant deed, trustee’s deed,
deed of trust, reconveyance, quit claim deed, fictitious deed of trust,
assignment of deed of trust, request for notice of default, abstract of
judgment, subordination agreement, declaration of homestead, abandonment
of homestead, notice of default, release or discharge, easement, notice of
trustee sale, notice of completion, UCC financing statement, mechanic’s lien,
maps, and covenants, conditions, and restrictions.
3
Bus. & Prof. Code, § 8700, et seq.
4
Bus. & Prof. Code, § 8762, subd. (a).
5
Bus. & Prof. Code, § 8762, subd. (b).
2
18-303
survey] to the county recorder for filing.”6 Thus, a record of survey is “permitted by law
to be recorded,” and whether it is subject to section 27388.1’s fee requirement turns on
whether a record of survey is a “real estate instrument, paper, or notice.” For the reasons
that follow, we conclude that it is.
The “first task in construing a statute is to ascertain the intent of the Legislature so
as to effectuate the purpose of the law. In determining such intent, [we] must look first to
the words of the statute themselves, giving to the language its usual, ordinary import and
according significance, if possible, to every word, phrase and sentence in pursuance of the
legislative purpose.”7 If the statutory language is clear, we “follow its plain meaning unless
a literal interpretation would result in absurd consequences the Legislature did not intend.”8
On the other hand, where ambiguity exists, “consideration should be given to the
consequences that will flow from a particular interpretation.”9
Section 27388.1 defines a “real estate instrument, paper, or notice” as “a document
relating to real property.”10 “Real property” is “[l]and and anything growing on, attached
to, or erected on it, excluding anything that may be severed without injury to the land.”11
The Professional Land Surveyors’ Act does not directly define a record of survey, but states
that a record of survey takes the form of a map,12 and that it must show all monuments
found, the name and legal designation of the property in which the survey is located, “the
relationship of adjacent tracts, streets, or senior conveyances which have common lines
with the survey,” and “[a]ny other data necessary for the intelligent interpretation of the
various items and locations of the points, lines, and areas shown,” among other things.13
6
Bus. & Prof. Code, § 8767; see also Bus. & Prof. Code, §§ 8762, subd. (e), 8768.
7
Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-
1387.
8
Coalition of Concerned Communities, Inc. v. Los Angeles (2004) 34 Cal.4th 733, 737.
9
Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387.
10
Gov. Code, § 27388.1, subd. (a)(1).
11
Black’s Law Dictionary (10th ed. 2014) p. 1412, col. 1; see also ibid. (noting that
“real property” is also termed “real estate”); Wasatch Property Management v. Degrate
(2005) 35 Cal.4th 1111, 1121-1122 (“When attempting to ascertain the ordinary, usual
meaning of a word, courts appropriately refer to the dictionary definition of that word”).
12
Bus. & Prof. Code, § 8763.
13
Bus. & Prof. Code, § 8764.
3
18-303
Further understanding of a survey, and by extension a record of survey, can be
gleaned from the Professional Land Surveyors’ Act’s definition of land surveying, which
includes locating elevations; determining “the configuration or contour of the earth’s
surface, or the position of fixed objects above, on, or below the surface of the earth;”
locating or establishing property lines or boundaries “of any parcel of land, right-of-way,
easement, or alignment of those lines or boundaries;” making a survey for the subdivision
or resubdivision of land; determining the position of monuments or reference points which
mark property lines and boundaries; and determining the information shown “within the
description of any deed, trust deed, or other title document prepared for the purpose of
describing the limit of real property . . . .”14
A record of survey is a report of a field survey conducted by a licensed land
surveyor, containing a technical description of the land in question, along with the
surveyor’s opinion as to where property boundaries lie. While such reports do not
necessarily affect title to land directly, they are an indispensable aid to determining
property boundaries, and therefore they are often material to determining interests in real
property.
We acknowledge that “record of survey” does not appear in the list of documents
enumerated in section 27388.1 as examples of a real estate instrument, paper, or notice.
But that list, while illustrative, is expressly non-exclusive.15 Moreover, we note that the
Professional Land Surveyors’ Act states that a record of survey “shall be a map . . .”,16 and
maps do appear among the enumerated examples of real estate instruments given in section
27388.1.17 Reading these statutes in harmony, we have no question that a record of survey
is a document relating to real property within the meaning of section 27388.1.
Several commenters have urged us to distinguish records of survey from the items
enumerated as examples in section 27388.1, arguing that records of survey do not directly
14
Bus. & Prof. Code, § 8726.
15
Gov. Code, § 27388.1, subd. (a)(1) (“‘Real estate instrument, paper, or notice’ means
a document relating to real property, including, but not limited to, the following . . .” [italics
added]); Major v. Silna (2005) 134 Cal.App.4th 1485, 1495 (“The phrase ‘including, but
not limited to’ is a term of enlargement, and signals the Legislature’s intent that [the statute]
applies to items not specifically listed in the provision”).
16
Bus. & Prof. Code, § 8763; see also Bus. & Prof. Code, § 8770 (referring to records
of survey as “maps” in describing the recorder’s obligation to keep such records in a book
and maintain indexes by grant, tract, or subdivision).
17
Gov. Code, § 27388.1, subd. (a)(1).
4
18-303
affect title to real property, appear in a chain-of-title search, or provide constructive notice
as to rights to real property. Even if that were always true, it would not eliminate records
of survey from the purview of section 27388.1. Section 27388.1 is not limited to real estate
documents that affect title, appear in chain-of-title searches, or provide constructive notice
as to rights to real property. Rather, it applies to documents “relating to real property.”18
“The plain language of the statute establishes what was intended by the Legislature.”19
That is not to say that every record of survey recorded will be subject to the section
27388.1 recording fee. Section 27388.1 contains several exceptions, including documents
relating to transfers of residential dwellings to owner-occupiers20 and documents recorded
by state or local government entities,21 which apply to records of survey just as they would
to any real estate instrument.
In sum, section 27388.1 broadly defines real estate instruments as documents
relating to real property, and the Professional Land Surveyors’ Act describes a record of
survey as a document relating to real property. Therefore, records of survey are subject to
section 27388.1’s recording fee unless an exception set forth in that statute applies.
*****
18
Gov. Code, § 27388.1, subd. (a)(1).
19
People v. Statum (2002) 28 Cal.4th 682, 690.
20
Gov. Code, § 27388.1, subd. (a)(2)(B).
21
Gov. Code, § 27388.1, subd. (a)(2)(D). Commenters have suggested that because the
surveyor who prepares the record of survey files it with the county surveyor, who
ultimately presents it to the county recorder for filing, the act of submitting the record of
survey to the county surveyor should not be subject to the fee imposed by section 27388.1
“at the time of recording.” Others have suggested that the county surveyor’s presentation
of a record of survey to the county recorder would always qualify for the government-
entity exemption. We take no position on those arguments at this time. This opinion is
limited to determining whether records of survey fall within the documents covered by
section 27388.1.
5
18-303