Chapter 19 - § 19.5 • EXECUTION
| Jurisdiction | Colorado |
§ 19.5.1—Signature
Generally, a signature is required for the validity of a deed.134 It was formerly held that a deed does not convey title to property not within its description.135 An execution by mark, duly acknowledged, is sufficient even in the absence of witnesses.136
Although there are no cases in Colorado on point, it is a general rule that a deed signed by persons named as grantors and by others is not the deed of those not named as grantors.137 This rule may be justified on the theory that, as to persons not named as grantors, there is no granting language.138
§ 19.5.2—Execution by Married Woman
Prior to February 12, 1874,139 a married woman could not convey her real estate except by substantial compliance with the statute of conveyances then in force,140 which provided that to convey her lands a married woman must unite with her husband in making the conveyance, that she must acknowledge the same separate and apart from her husband, and that the officer taking the acknowledgment must certify that the same was made upon examination separate, apart from, and out of the presence of her husband, and that the contents, meaning, and effect of her deed were by the officer fully explained to the wife.141 The 1874 Act provided, "That hereafter any woman, while married, may bargain, sell and convey her real and personal property, and enter into any contract in reference to the same, as if she were sole."
§ 19.5.3—Execution by Spouse142 Not in Title
Dower and curtesy are not recognized in Colorado,143 and Colorado is not a community property state.144 Therefore, where title is held in the name of one spouse, the other spouse need not join in the execution of a deed except (1) to release homestead rights, and (2) to exclude the value of property from the augmented estate.
A homestead occupied as a home by the owner or his or her family is exempt from execution and attachment arising from any debt, contract, or civil obligation not exceeding, currently, $60,000 in excess of liens and encumbrances at the time of levy of execution.145 Under the current homestead law, the owner of the property (or his or her spouse) may record an instrument describing the property, setting forth the nature of the owner's interest, and stating that he or she is homesteading the property. Thereafter, the signatures of both spouses are required to convey or encumber the property.146
Prior to the 1975 amendment of the homestead statute,147 property could be homesteaded only by the notation of the word "homestead" on the margin of the record of title.148 On and after the 1975 amendment, the homestead is automatic if the property is occupied as a home by the owner or his or her family and the property consists of a house and lot or lots or of a farm consisting of any number of acres.149 As a result of this legislation, it did not appear of record whether the homestead exemption had attached to any particular property.
July 14, 1975 to May 26, 1977: From July 14, 1975 to May 26, 1977, homesteaded property, including property automatically homesteaded, could be conveyed only by the signatures of both spouses.150 A recital in a recorded conveyance or encumbrance of real property of the marital status of the party executing it or that the property is or is not occupied as a home by the owner or his or her family is prima facie evidence of the facts recited.151
On and after May 27, 1977: Under the 1977 amendment of the statute prescribing how a homestead may be conveyed,152 property automatically homesteaded may be conveyed or encumbered by the owner of the property free and clear of homestead rights, and no signature other than that of the owner is required.153
Prior to July 1, 1974, the only reason for requiring the joinder of the spouse of the property owner was to release any homestead rights.154 Effective July 1, 1974, however, the Colorado Probate Code and its concept of augmented estate created another reason for spousal joinder.155
§ 19.5.4—Execution by Attorney-In-Fact
A power of attorney must relate to property which is adequately described or sufficiently referred to.156 However, the power of attorney need not particularly and separately describe each specific tract of land which the attorney-in-fact is authorized to sell.157 The former Colorado statutory power-of-attorney form for real property did not provide a space for the description of the real property, nor did the instructions incorporated in the form advise the person completing the form that a description was required.158 The current statutory form of power-of-attorney for real property does not provide a space for the description of the real property, nor do the current instructions incorporated in the form advise the person completing the form that a description is required.159 A description could be inserted in paragraph 3 (additional powers) or paragraph 4 (special instructions) of the form.
A power of attorney authorizing the attorney-in-fact to "sell" certain real property permits only the negotiation of a purchase contract, and does not authorize the attorney-in-fact to execute a binding agreement to sell or to convey the property.160 The former Colorado statutory form of statutory power of attorney for real property did not specifically authorize the attorney in fact to convey real property,161 nor does the current statutory form of statutory power of attorney.162 However, the statutory construction of the former statutory power-or-attorney form for real property did authorize the attorney-in-fact to convey,163 as does the current statutory construction.164 A general power of attorney to encumber real estate, without declaring for whose benefit it may be encumbered, does not authorize an attorney-in-fact to encumber it for himself or herself or any third person.165
All powers of attorney for real estate and other purposes are valid until revoked as provided in the power of attorney or as provided by law.166
A power of attorney terminates when:
• The principal dies;
• The principal becomes incapacitated,167 if the power of attorney is not durable;
• The principal revokes the power of attorney;
• The power of attorney provides that it terminates;
• The express purpose of the power of attorney is accomplished; or
• The principal revokes the agent's authority or the agent dies, becomes incapacitated, or resigns, and the power of attorney does not provide for another agent to act under the power of attorney.168
An agent's169 authority terminates when:
• The principal revokes the authority;
• The agent dies, becomes incapacitated, or resigns;
• An action is filed for the dissolution or annulment of the agent's marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or
• The power of attorney terminates.170
Unless the power of attorney otherwise provides, an agent's authority is exercisable until the authority terminates, notwithstanding a lapse of time since the execution of the power of attorney.171
Termination of an agent's authority or of a power of attorney is not effective as to the agent or another person who, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.172
The execution of a power of attorney does not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney is revoked or that all other powers of attorney are revoked.173
A power of attorney, duly proved or acknowledged, must be recorded.174 However, as in the case of conveyances, recording goes to notice, not validity, and an unrecorded power of attorney is valid as against persons with notice. Although a power of attorney need not be recorded before the conveyance is executed, it must have been granted before the conveyance is executed in order that the conveyance be executed "during the existence of the power."175 An exception may exist where the power of attorney contains a ratification of the attorney-in-fact's previous acts.176
The principal should be named as the grantor in the conveyance and the principal's name should be signed by the attorney-in-fact, but other forms of signature may suffice where it is apparent that the intention is to transfer the title of the principal.177 In particular, where the attorney-in-fact owns no interest in the land, a conveyance by him or her in his or her own name, without referring to the power, is an execution of the power effective to transfer the land.178 Incapacity of the principal of a power of attorney that is not durable179 does not revoke or terminate the power of attorney as to an agent or other person who, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.180
§ 19.5.5—Execution by Corporation
A private corporation, authorized by law to convey, mortgage, or lease any of its real estate, may convey, mortgage, or lease the same in the manner authorized by the real property statutes181 or by instrument under its common seal, subscribed by its president, vice president, or other head officer. A corporation is not precluded from using some other form of execution.182 A corporate instrument affecting title to real property, executed by the president, vice president, or other head officer of the corporation, in the form required or permitted by law, is deemed to have been executed with proper authority in the usual course of business, and is binding and conclusive upon the corporation as to any bona fide purchaser, encumbrancer, or other person relying on the instrument.183
§ 19.5.6—Execution by State of Colorado
C.R.S. § 36-1-104(1) provides:
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