Chapter 25 - § 25.2 • THE RECORDING SYSTEM
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§ 25.2.1—Instruments or Writings Required or Permitted to Be Recorded
In General
The declaration of a common interest community must be recorded in every county in which any portion of the common interest community is located.7 The present recording act permits the recording of "[a]ll deeds, powers of attorney, agreements, or other instruments in writing conveying, encumbering, or affecting the title to real property, certificates, and certified copies of orders, judgments, and decrees of courts of record."8 A variety of documents have been held entitled to be recorded:
• A contract of sale is "an instrument in writing . . . affecting title to real property" under the recording act.9 An option to purchase is an interest affecting title to property.10
• A receiver's receipt may be recorded;11 a United States patent may be recorded.12
• A coal lease13 or oil and gas lease14 may be recorded.
• An agreement creating a joint venture gives a venturer who pays his share of the purchase price of real estate purchased for the purposes of the venture an equitable interest in the property, and therefore the agreement is one "affecting the title to real property" which may be recorded.15
• Letters of conservatorship and orders terminating conservatorships may be filed or recorded to give notice of title as between the conservator and the protected person.16 An order for restitution may be recorded in the office of the clerk and recorder of any county in which the defendant holds an interest in real property.17
• Notices of lis pendens.18
• Location certificates for mining claims,19 including additional location certificates.20
• Mining claim maps.21
• Affidavits of annual labor, improvements, or payment of federal claim rental fee or, presumably, the maintenance fee which replaced the rental fee.22
Transcripts of Judgment and Orders for Restitution
Formerly, a transcript of the judgment docket was entitled only to be filed, but was not required to be recorded or indexed.23 This was changed, apparently by the 1927 amendment of the recording act, which provided that "[i]n all cases where by law an instrument may be filed, the filing thereof with such recorder shall be equivalent to the recording thereof."24
Foreign Instruments
With regard to foreign deeds and other writings, C.R.S. § 38-30-140 provides:
Deeds, bonds, agreements in writing, and powers of attorney for the conveyance of lands, or any interest therein, or affecting the title thereto executed in any foreign country, and the acknowledgment or proof of execution thereof, may be executed, heard, taken, and certified in the language of such foreign country, and there shall be attached thereto a translation into the English language by any person learned in the language of such foreign country and by such person sworn to be a true and correct translation thereof before any officer or court authorized to take the acknowledgment of deeds. Such deed, bond, agreement, or power of attorney, and the certificate of acknowledgment or proof thereof, may be read in evidence and recorded with like effect as if written in the English language. Such translation shall not be conclusive upon any party desiring to question the correctness thereof. No such deed or other writing shall be entitled to record unless accompanied by such sworn statement.
PUD Plans
The recording of a PUD plan under the recording act is not required because the notice goals of the recording act are satisfied by the PUD approval process. Therefore, a PUD plan is not an instrument affecting title to real property within the purview of the recording act.25 And, not being an instrument affecting title to real property, it would seem that a PUD plan is not entitled to recordation under the recording act.
Crop Rental Leases
A lease under which agricultural lands are leased on a crop rental basis and the landlord receives a share of the crop in lieu of a cash rental may be recorded.26
Wills and Probate Decrees
A will devising real property and the probate thereof, certified by the clerk of court, may be recorded. Similarly, decrees in probate determining the descent of real estate, entered by the clerk of court, may be recorded.27
Fraudulent Documents
A person who offers to have recorded a document purporting to convey, encumber, create a lien against, or otherwise affect the title to real property, knowing or having reason to know that the document is forged or groundless, contains a misstatement or false claim, or is otherwise invalid, is liable to the owner of the real property for a sum of not less than $1,000 or for the actual damages caused thereby, whichever is greater, together with reasonable attorney fees.28 One who authorized the issuance of a deed of trust and pays the recording fee "offers" the deed of trust for recording.29 A "groundless" document is one as to which a proponent can advance no rational argument based on evidence or law to support his claim of lien.30 The intent of this provision was to halt the filing of invalid liens against real property.31 This section prohibits two types of conduct: (1) the filing of a document that meets the statutory or common-law requirements necessary to create a lien, but which is "forged or groundless, contains a material misstatement or false claim, or is otherwise invalid," and (2) the filing of a document which does not comply with the statutory or common-law requirements necessary to create a lien, knowing or having reason to know that the document was unfounded.32
A document falling under (1), above, must meet only statutory or common-law requirements to create a lien. It need not, on its face, purport to create a lien to come within the purview of this section.33 With regard to a document falling under (2), above, the dispositive inquiry is whether the party knew or had reason to know that the document would unjustifiably cloud the property's title. Whether the document actually creates a lien or clouds the title is irrelevant.34 A grantee or other person purportedly benefited by such recorded document who willfully refuses to release the document of record upon request of the owner of the real property affected is liable to the owner for the damages and attorney fees mentioned above.35 This section applies only to a person who is not responsible for recording or filing the document.36
A person who, knowing that a written instrument relating to or affecting real or personal property contains a material false statement or material false information and with intent to defraud, presents or offers it to a public office or a public employee, with the knowledge or belief that it will be registered, filed, or recorded or become a part of the records of that public office or public employee, commits the crime of offering a false instrument for recording in the first degree,37 a class 5 felony.38 A person who, knowing that a written instrument relating to or affecting real or personal property contains a material false statement or material false information, presents or offers it to a public office or a public employee, with the knowledge or belief that it will be registered, filed, or recorded or become a part of the records of that public office or public employee, commits the crime of offering a false instrument for recording in the first degree,39 a class 1 misdemeanor.40
§ 25.2.2—Place of Recording
Documents Recorded in the Office of the Clerk and Recorder
Not all records maintained in the office of the clerk and recorder provide constructive notice. For example:
Reception book: The statute requiring the clerk and recorder to provide a reception book does not require that a description of the property conveyed be noted in the book.41 The purpose of the receiving book and indices is to furnish a ready and generally convenient means of reference to the matters contained in the books of record. They do not provide constructive notice to a subsequent purchaser or encumbrancer.42
Tract index: Although a county recorder is not required to keep a tract index, if he or she does so it is a public record.43 There is a suggestion in Fees-Krey44 that tract indices would provide constructive notice. It would seem, however, on the authority of People v. Ginn45 that a record not required to be kept does not provide constructive notice.
Road Book: Filing a road petition and incorporated plat46 in the road book in the office of the clerk and recorder does not constitute recording and does not provide constructive notice.47
Documents Recorded other than in the Office of the Clerk and Recorder
To hold that documents recorded elsewhere than in the office of the clerk and recorder give constructive notice would be to extend the benefits of the recording act beyond the clear intent of the legislature. Therefore, the recording of documents in a federal or state land office does not provide constructive notice.48 In Page v. Fees-Krey, Inc., the defendant had a duty of searching the bureau of land management records, not because such records provide constructive notice, but because the state of the county records was such as to put defendant on inquiry notice as to what a search of the bureau of land management records would disclose.
Survey plats deposited with the county surveyor or other county official49 do not constitute notice under the recording act.50
Nevertheless, by statute, an attorney's charging lien filed with the clerk of the court in which the cause giving rise to the lien is pending is "notice to all persons and to all parties, including the judgment creditor, to all persons in the case against whom a demand exists, and to all persons claiming by, through, or under any person having a demand in suit or having obtained a judgment . . . ."51
The term "any judgment" includes real property in which a client's interest is preserved.52
§ 25.2.3—Time of Recording
When a document has been accepted by the clerk and...
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