Signatures on Documents Affecting Title to Colorado Real Property-part I
| Publication year | 1983 |
| Pages | 61 |
| Citation | Vol. 12 No. 1 Pg. 61 |
1983, January, Pg. 61. Signatures on Documents Affecting Title to Colorado Real Property-Part I
The culmination of events involved in the transfer of land or in any transaction affecting title to real property is the closing, the time when all the documents are signed. This is usually the most mechanical stage of the transaction, but a mistake can lead to untold misery in the future. This series of articles presents an in-depth analysis of who must and who should sign land transfer documents or documents affecting title to real property and what other formalities should be observed in the execution of land transfer documents.
The information included is based on Colorado statutes, particularly those appearing in Title 38 of C.R.S. 1973, Colorado Bar Association Real Estate Standards and relevant case law and commentaries on case law. It is hoped that this material will provide a handy reference for practitioners in considering the execution of documents. The theories and practices discussed herein may provoke comment from the Colorado Real Estate Bar and such comment and discussion in enthusiastically invited.
Acknowledgments are a vital element of execution of real estate conveyance documents. Although acknowledgments are not necessary in order to record a document in Colorado, the presumptions attributed to an acknowledged document affecting title to real property make notarization worth the minor effort required to obtain acknowledgment. The following section is relevant to the signing of any such document, recorded or not.
An acknowledgment, which is substantially in the form set forth in C.R.S. 1973, § 38-35-101,(fn1) provides the following prima facie evidence:(fn2)
a) that the person whose signature is acknowledged has acknowledged that he signed the document of his free and voluntary act;
b) that when the acknowledgment is in a representative or official capacity, such person acknowledged it as his free and voluntary act in such capacity;
c) if the acknowledging person is an officer of a corporation, that the instrument was executed and acknowledged by such corporate officer with proper authority from the corporation, as the act of the corporation;
d) if the persons acknowledging are directors, etc., performing the last acts of a corporation before the time of dissolution, that the document was executed and acknowledged with proper authority; and
e) if the person acknowledging is a partner, that such person is a partner and that the instrument was executed and acknowledged by him with proper authority from the partnership, as the act of the partnership.
Proper acknowledgment, along with recordation, also provides prima facie evidence of due delivery and execution of the instrument irrespective of the length of time that elapses between the date of the instrument and the date of recording.(fn3) Properly acknowledged documents which have been recorded may be read into evidence with the same effect as the original document. All deeds acknowledged in conformance with C.R.S. 1973, § 38-35-101 receive the benefit of these presumptions.(fn4)
The persons before whom acknowledgments may be taken are set out in some detail by statute and counsel can refer to the statute to determine if the officer is proper.(fn5) Notaries public are the most common proper officers(fn6) and are required to comply with the provisions of the Notaries Public Act.(fn7)
Notaries are required to keep a journal noting all documents affecting title to real property which have been acknowledged before them. The failure to keep such a journal presumably subjects the notary to forfeiture of the bond deposited under C.R.S. 1973, § 12-55-106 and the revocation of his notarial commission.(fn8) If a notary violates the duties imposed on him by the Notaries Public Act, he is liable for all
damages proximately caused by that violation and also possibly subject to criminal prosecution.(fn9) Although the Notaries Public Act does not mention it, it has been standard practice in Colorado that a notary not be a party at interest in the transaction.
Presumably, however, the failure of a notary to perform his duties does not affect the presumptions given by an acknowledged document. Even though C.R.S. 1973, § 38-35-101(1) provides that the notary "shall" satisfy himself as to the identity of the person who is signing the document, § 101(3) states that acknowledgments provide prima facie evidence if they are correct in "form."(fn10)
The Colorado statutes provide that acknowledgments may be taken in foreign countries before a judge, court clerk, chief magistrate, town mayor or United States consular officials.(fn11) However, effective October 15, 1981, the United States became a party to the...
To continue reading
Request your trial