Legal Question in Real Estate Law in California

Lost original grant deed to revocable living trust

a negligent attorney never recorded original signed grant deed transferring property to parents revocable living trust - now Father is deceased and mother suffers from dementia . Is there any way to record a clear copy?

this was notarized at the time. This has become critical because the property is up for sale.

Asked on 7/03/06, 1:27 pm

3 Answers from Attorneys

Robert Mccoy Law Office Of Robert McCoy
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Re: Lost original grant deed to revocable living trust

Probably. You will need to petition the court. But I am wondering why the property is up for sale, and if transfering the property into a trust would do you any good; i.e. if the property is in foreclosure, it is irrelevant whether it is in a trust or not.

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Answered on 7/03/06, 1:50 pm
Ken Koenen Koenen & Tokunaga, P.C.
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Re: Lost original grant deed to revocable living trust

You may need a court order. Not too difficult, but time consuming. There could be a shorter, easier way.

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Answered on 7/03/06, 3:23 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law
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Re: Lost original grant deed to revocable living trust

I don't see foreclosure mentioned in your question.

Here's the answer as I see it. A deed is valid between the parties and others with notice of it, whether or not it is recorded, and whether or not it is notarized for that matter, so long as it is properly drawn in writing, signed by the grantor, and delivered to the grantee within the lifetime of the grantor. In your case, I think the issue of delivery is critical to the validity of the deed. Since the grantee here would be the trust, I'd say delivery was accomplished if the deed had been given, by the attorney, to either of your parents (assuming they were co-trustees, of course) during their joint lifetimes. Otherwise, the deed is subject to challenge and a court action to quiet title may be necessary (even though no one is raising a challenge).

Now, as to recording. If the deed is in proper format (signed, notarized, contains legal description of property, etc.) the county recorder should accept it for recording, despite the lapse of time between its date and the date of recording.

Recording instruments long after they are executed is bad practice, but not all that uncommon, and sometimes intentional. The major problem is that the interest represented by the unrecorded instrument (ownership, a lien, etc.) is known to and therefore binding upon only those with actual or "constructive" knowledge of the instrument. Therefore, another and conflicting instrument duly recorded ahead of the unrecorded instrument takes priority as to buyers, lienors, etc. in good faith without knowledge of the unrecorded instrument.

Hopefully, in your case, there have been no other instruments recorded with respect to your parents' home.

I strongly recommend getting local professional advice. If the house is being offered through a real estate professional, determine which escrow company will be used, and have a discussion with their legal staff as to whether this will affect marketability of title or availabilityof title insurance. This would be potentially free, and competent, legal advice. Alternatively, find your own local real estate lawyer.

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Answered on 7/03/06, 3:33 pm

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