DEEDS IN GENERAL

DEEDS IN GENERAL

When properly executed, delivered and accepted, a deed transfers title to real property from one person (the
grantor) to another person (the grantee). Transfer may be voluntary, or involuntary by act of law, such as a
foreclosure sale.

There are several different essentials to a valid deed:

1. It must be in writing;

2. The parties must be properly described;

3. The parties must be competent to convey and capable of receiving the grant of the property;

4. The property conveyed must be described so as to distinguish it from other parcels of real property.;

5. There must be a granting clause, operative words of conveyance (e.g., “I hereby grant”);

6. The deed must be signed by the party or parties making the conveyance or grant; and

7. It must be delivered and accepted.

Contrary to the law and established custom in other states, the expression “to have and to hold” (called the
“habendum clause” of a deed) is not necessary, nor are witnesses or seal required. The deed should be dated,
but this too is not necessary to its validity.

Any form of written instrument containing the essentials above set out will convey title to land. A typical grant

deed may be in the form as follows:

“I, John A. Doe, a single man, grant to Emma B. Roe, a widow, all that real property situated in Sacramento
County, State of California, described as follows: Lot 21, Tract 62, recorded at Page 91 of Book 7 of Maps of
Sacramento County, filed January 21, 1965. Witness my hand this tenth day of October, 1983.

(Signed) John A. Doe”

Usually, a deed is executed for consideration, but this is not essential for a valid transfer. Moreover, even when
consideration is given for the property, this point need not be mentioned in the deed. However, it should be
noted that lack of consideration may affect the rights of the grantee as against the rights of certain third parties
because the recording statutes are intended to protect bona fide purchasers.

For example, a transfer made without consideration by a grantor who is or will thereby be rendered insolvent, is
fraudulent as to grantor’s creditors and those creditors may have the deed set aside in a court action.

A deed need not be acknowledged, nor need it be recorded. However, both acknowledgment and recordation
are part of the standard operating procedure in real estate transfers for very good reasons.

Acknowledgment

An acknowledgment is a formal declaration before a duly authorized officer, such as a notary public, by a
person who has executed an instrument that such execution is his or her act and deed. The piece of paper (or
form) executed by the officer before whom the formal declaration was made (for example, the grantor in a grant
deed) is a Certificate of Acknowledgment. This certificate is either printed right on the grant deed itself or is a
separate piece of paper which is stapled to the grant deed. The acknowledgment of a writing is a way of
proving that the writing was in fact signed (or executed) by the person who purported to sign (or execute) the
writing. Moreover, an acknowledgment is a safeguard against forgery and false impersonation. Duly
acknowledged writings are entitled to be introduced into evidence in litigation without further proof of
execution.

Many instruments are not entitled to be recorded unless acknowledged. Unless by statute an acknowledgment is
made essential to the validity of an instrument, the instrument itself is valid between the parties and persons
having actual notice of it, though not acknowledged. The time of acknowledgment is almost invariably
immaterial if the rights of innocent third parties do not intervene.

Where acknowledgments may be taken and by whom. Anywhere within the state, proof or acknowledgment
of an instrument may be made before a justice, retired justice or clerk of the Supreme Court, or District Court
of Appeal, or the judge or retired judge of a superior court, or, after September 17, 1959, a notary public.
(Before that date a notary could not act outside the notary’s own county.)

In this state and within the city, county, city and county, or district for which the officer was selected, or
appointed, acknowledgment of an instrument may be made before either: a clerk of a municipal or justice court;
a county clerk; a court commissioner; a judge or retired judge of a superior, municipal or justice court or certain
other local officials. (Civil Code Section 1181)

Acknowledgments may be made and taken by any deputy of the foregoing, duly authorized by law. Also,
certain military officers are authorized to take acknowledgments of persons serving in the armed forces. (Civil
Code Section 1183.5)

The principal form of acknowledgement authorized by California law is provided for in Civil Code Section
1183.5. An acknowledgment taken outside this state, must be in accordance with the forms, provisions, and
laws of this state. If not, it should have attached thereto a certificate of a clerk of the court of record of the
county or district where the same was taken, or of a consul or consular agent of the U.S., or judge if in a foreign
country. The certificate of acknowledgment must state that it is in accordance with the laws of the state, the
United States or the foreign country in which it was taken and that the officer taking the same was authorized
by law to do so and that the signature is true and genuine.

A form of acknowledgment called an “Apostille” may be used in California to authenticate a certificate of
acknowledgment drafted in a foreign country.

If the certificate of acknowledgment is sufficient in other respects, it will not be invalidated by a mistake in the

date or even by the absence of a date. It is sufficient that such date appears by evidence within the instrument
itself and, in the absence of proof to the contrary, it may be presumed that the acknowledgment was taken on
the date of the execution of the instrument or at least before the recordation thereof.

Where the date of the deed is subsequent to that of the acknowledgment, the later date may be taken as the true
date of the deed. The certificate must be authenticated by the signature of the officer followed by the name of
his or her office. An official seal must be affixed if the officer is by law required to have a seal.

In California, a notary public must provide and keep an official seal, which must clearly show, when embossed,
stamped, impressed or affixed to a document, the name of the notary, the State Seal, the words “Notary Public,”
the name of the county wherein the bond and oath of office are filed, and the date the notary public’s
commission expires. In addition the Notary Stamp contains the sequential identification number (commission
number) assigned to the notary public, as well as the identification number assigned to the seal manufacturer or
vendor. Because the legal requirement that the seal be photographically reproducible, the rubber stamp seal is
almost universal; however, notaries public may use an embosser seal in addition to the rubber stamp.

A notary public is required to keep one active sequential journal at a time of all acts performed as a notary
public. The journal must be kept in a locked and secured area, under the direct and exclusive control of the
notary public. The journal must include the items shown below. (Government Code Section 8206 (a))

• Date, time, and type of each official act (e.g. acknowledgment, jurat).

• Character of every instrument sworn to, affirmed, acknowledged or proved before the notary public (e.g.
deed of trust).

• The signature of each person whose signature is being notarized.

• A statement that the identity of a person making an acknowledgment or taking an oath or affirmation was
based on “satisfactory evidence” pursuant to Civil Code Section 1185.

• The fee charged for the notarial service.

• If the document to be notarized is a deed, quitclaim deed, or deed of trust affecting real property or a power
of attorney document, the notary public must require the party signing the document to place his or her
right thumbprint in the journal. Government Code Section 8206 specifies alternatives if right thumbprint is
not possible.

Acknowledgments taken by officers having an interest in the transaction. In general, case law has
consistently provided that officers who take an acknowledgment of a writing should not have a direct financial
interest in the transaction. The purpose of the prohibition is to discourage fraud, and if an acknowledged
instrument discloses on its face that such conflict of interest exists, it has been held the recorded instrument
does not impart constructive notice of its contents.

No reliance should be placed on instruments acknowledged before an officer who is known to have, or who
may reasonably be expected to have, a direct financial or beneficial interest in the transaction. For example: an
officer acknowledging his own signing of a document or instrument; an officer acknowledging a mortgagor’s
execution of a mortgage naming the officer as mortgagee; and an officer acknowledging a deed in which he or
she is named as grantee.

An acknowledging officer who is one of several grantors or mortgagors may properly acknowledge signing of
the instrument by the other grantors or mortgagors, but his or her own signing must be acknowledged by a
different officer.

Effective January 1, 1978 the following statutes became effective with respect to the acknowledgments taken
by notaries public:

• Government Code Section 822.

A notary public who has a direct financial interest in a transaction can not perform any notarial act in
connection therewith. Transactions covered include the following:

1. Financial transactions in which the notary public is named, individually, as a principal.

2. Real property transactions in which the notary public is named, individually, as grantor, grantee,

mortgagor, mortgagee, trustor, trustee, beneficiary, vendor, vendee, lessor or lessee.

• Government Code Section 8224.1

A notary public can not take the acknowledgment or proof of instruments in writing executed by him or by her.

Certain instruments must be acknowledged by affected party. California law protects property owners from
unwarranted or unauthorized encumbrance of their property on the official records. Most instruments affecting
real property must be executed and acknowledged or proved by the owner of the property before the instrument
is eligible for recordation.

Among such instruments, besides conveyances, mortgages and trust deeds, are agreements for sale, option
agreements, deposit receipts, commission receipts or any affidavit which quotes or refers to these instruments.

Any instrument transferring or encumbering community property must be executed by both the husband and the
wife.

Recordation

While recording a deed does not affect its validity, it is extremely important to record since recordation protects
the grantee. If a grantee fails to record, and another deed or any other document encumbering or affecting the
title is recorded, the first grantee is in jeopardy. The recording system is established to show the sequence of
transfers or other actions affecting property, and it is foolish to fail to avail oneself of the privilege of recording.

Possession of property also gives notice of the rights of persons in possession. A person buying real property
should not rely entirely on a title policy, but should investigate to see if somebody is in possession and find out
what their rights are. The occupants might be in possession under a partly paid contract of purchase and sale, or
they could be in possession under a lease that gave them an option to buy.

Consistency of names in title instruments. Complete record title to land cannot be established unless the
various instruments in a chain of title in the recorder’s office show direct connection by name between the
different owners. Any substantial variation between the name of the grantee in one instrument and the name of
the grantor in the next instrument executed by that grantee will, irrespective of the fact that identity may be
shown by “off record” evidence, render the title defective. Furthermore, the subsequent instrument executed by
the grantor of that grantee cannot impart constructive notice of its contents to a third person.

A legal name of an individual consists of one personal, or given, name and one surname/family name. The old
common law recognized but one given name and frequently disregarded middle names or initials. It has been
stated that the insertion or omission of, or mistake or variance in a middle name or initial is immaterial.
However, while the omission or addition of a middle name or initial in an instrument affecting real property is
generally considered immaterial, a variance in middle names or initials may result in defective record of title.

Change of name. With limited exceptions, a person in whom title to real estate is vested who afterwards has a
name change must, in a conveyance of the real estate, set forth the name in which he/she took title. For
example: If a single woman acquires title as “Mary Doe” and later marries a man whose last name is Smith, she
should convey the property as “Mary Doe Smith, formerly Mary Doe” (or “who acquired title as Mary Doe”).

Generally, any conveyance, though recorded as provided by law, which does not comply with the foregoing
provision does not impart constructive notice of the contents to subsequent purchasers and encumbrancers, but
the conveyance is valid as between the parties thereto and those who have actual notice. To correct a situation
in which an incorrect name has been used in a transfer of title, it is advisable to clear title by filing a special
action and proceeding under Section 770.020 of the California Code of Civil Procedure.

Party in title instrument cannot be fictitious but may use fictitious name. A deed to a purely fictitious
person (false or feigned name) is void, but a deed to an actual person under a fictitious name by which he or she
is known or which this person assumes for the occasion is valid. If the grantee is misnamed in the deed, the
error can be corrected by a second deed to the same grantee under the true name. The grantee designated in the
deed must be a person in existence, either natural or artificial, and must be capable of taking title to the land, for
a deed to a dead person is void. A deed to the estate of a deceased person is questionable. A deed to the
administrator of the estate of a deceased person, if the administrator is duly nominated, appointed and acting,
conveys title to the heirs or devisees of the deceased, subject to administration of the estate.

For example: A better mode of granting deeds to an estate, and one which has been approved by most title
companies would be “to the heirs or devisees of John Doe, deceased, subject to the administration of his
estate.”

Delivery and Acceptance

A deed is of no effect unless delivered. But delivery in this context means more than a turning over of the
physical possession of the document. The grantor must have the intention to pass title immediately. It is
possible in some cases to have a legal delivery without the instrument actually being handed to the grantee, if
the grantor has the requisite intent to transfer title.

That intention is not present if A gives B a deed but tells B not to record it until A’s death, both parties
believing the deed is ineffective until recorded. Nor is such intention present in the typical case of cross-deeds
between husband and wife placed in a joint safe-deposit box with the understanding that the survivor will
record his or her deed.

The law presumes a valid delivery if the deed is found in the possession of the grantee or is recorded, but such
presumption is rebuttable. A deed may be entrusted to a third party (such as an escrow agent) with directions
that it be delivered to the grantee upon the performance of designated conditions. The deed itself may contain
conditions. But with reference to delivery, by statute, a grant cannot be delivered to the grantee conditionally.
Delivery to the grantee, or to the grantee’s agent as such, is necessarily absolute, and the instrument takes effect
immediately, discharged of any condition on which the delivery was made which is not expressed in the deed.
(Or, no delivery may have occurred and the deed may be found to be void.) The grantor attempting a
conditional delivery should withhold transfer of the deed to the grantee until the conditions are satisfied; or
incorporate the conditions in the deed itself; or deposit the deed into an escrow with appropriate instructions.
Transfer of a deed conditioned on the grantor’s death is ineffective as an attempted testamentary disposition
failing to meet the requirements of a will.

A duly executed deed is presumed to be delivered as of its dated date. The dated date of a deed is often
different from its recorded date. Possession or the rights thereto must be given when the deed is delivered.

Ordinarily, a deed cannot be given effect unless it is accepted by the grantee. An exception to this rule is made
when the grantee is a minor or mentally incompetent. Acceptance of a deed may be shown by acts, words or
conduct of the grantee showing an intent to accept. A deed to a governmental entity must ordinarily contain
(either on the face of the deed itself or on a separate sheet attached to the deed) a certificate of acceptance.