As you know I am not a California lawyer. So I can’t give you legal advice there. But here in Florida and in most states including California from what I have been told, there are provisions by which one can correct or amend the title chain. Without such a statute defective title could never be fixed without court action, which is something that I don’t think any of the courts want. In Florida it is called a Notice of Interest in Real Property. The statute appears below. I would suggest you talk to a lawyer who does real estate closings.
I cannot believe that California would not have some provision for correcting defective instruments regardless of whether the defect was intentional or scrivener’s error. In addition I don’t think a recording system works without requiring the recorder to accept any statement of interest or change of interest in property as defined by other recorded instruments. Recording of the rescission as an attachment to a Document that announces the rescission with reference to the other recorded documents seems to comply with that. (See below)
But it may be that the lawyer was looking for a way to directly record the notice of rescission. That might mean you asked him/her the wrong question. Attempting to record a letter of any kind would certainly fail in Florida and from what I have been told it would fail in any state. And THAT is because it is not a recordable instrument, executed with all the formalities of a deed or mortgage. It is simply a letter, with no witnesses, notary etc. Thus the solution is to execute an instrument that CAN be recorded and attach the notice of rescission as an exhibit.
My experience over the last few months is that many lawyers and pro se litigants have concluded that the rescission letter cannot be recorded. But they may have reached this conclusion because they were asking the wrong question. Indeed they may have reached this conclusion because they took the rescission letter to the recorder’s office and asked to record it. The county recorder is not authorized to record an instrument that does not conform to the formalities required by statute, as far as I know, in any state. The refusal by the county recorder is then proper. But the county recorder is required by statute to accept any document that DOES fulfill the requirements of a recordable document.
Here is the Florida statute that you or your lawyer can use for guidance in finding the authority in California and other states:
Florida Statute 712.05 Effect of Filing Notice—
(1) A person claiming an interest in land or a homeowners’ association desiring to preserve a covenant or restriction may preserve and protect the same from extinguishment by the operation of this act by filing for record, during the 30-year period immediately following the effective date of the root of title, a written notice in accordance with this chapter. Such notice preserves such claim of right or such covenant or restriction or portion of such covenant or restriction for up to 30 years after filing the notice unless the notice is filed again as required in this chapter. A person’s disability or lack of knowledge of any kind may not delay the commencement of or suspend the running of the 30-year period. Such notice may be filed for record by the claimant or by any other person acting on behalf of a claimant who is:
Such notice may be filed by a homeowners’ association only if the preservation of such covenant or restriction or portion of such covenant or restriction is approved by at least two-thirds of the members of the board of directors of an incorporated homeowners’ association at a meeting for which a notice, stating the meeting’s time and place and containing the statement of marketable title action described in s. 712.06(1)(b), was mailed or hand delivered to members of the homeowners’ association at least 7 days before such meeting. The homeowners’ association or clerk of the circuit court is not required to provide additional notice pursuant to s. 712.06(3). The preceding sentence is intended to clarify existing law.
Filed under: foreclosure |