Constructive Notice

[E_Page]

Way to stir the pot, Larry!

You're fortunate to have a title company that has the wherwithall to look beyond the ORs.

That still doesn't mean that the RS imparts constructive notice.

[Dave Karoly, PLS]

There's nothing magic about Constructive Notice. Not every document in the O.R. books impart constructive notice, for example Wild Deeds don't impart constructive notice. Constructive Notice just means every person has notice of a thing by operation of law whether they actually do or not.

Constructive Notice is one of three types of legal notice, the other two being Inquiry Notice (for example, there's a dirt road across the property, that may obligate you to investigate to find out if there's an easement) and Actual Notice.

If I give the adjoiner a copy of my filed Record of Survey then he has actual notice of the existence of my Record of Survey. It doesn't necessarily mean he's bound by it, just that he now is on notice of it. However, if I don't give him a copy then the law will not place the knowledge of it upon him.

I believe the main reason R/S maps don't impart Constructive Notice is that they are not in the Chain of Title.

I've seen old Deeds reference a R/S where the R/S was prepared as a quasi-subdivision. I would think the property owner is on Actual Notice of the R/S as soon as they read their Deed.

So, what about Parcel Maps and Final Maps? Do they impart constructive notice to adjoiners to the exterior boundary? I don't think so because they are only in the chain of title of the Lot owners on that map.

[LA Stevens]

But timing is everything and I enjoy stirring! Sorry for any misconception towards the thread.

It's a law suit and I was surprised they were able to have it done. Ive been meaning to call the CTO to see why they did it and how much it costs to have one done.

I'm sure its the economy and they happen to have the time. But I have seen ROS's listed in the Title Report as Exceptions and exclusions.

[goodgps]

I believe this has already been covered,
But I'm having a senior moment.

"Constructive notice"
isnt that notice pertaining to a writ, statement, or document that imparts construction of an object, law, or title (just to be short)

A record of survey is a "witness" to a grant deed, or other document of true "constructive notice"

Perhaps as a book report is a witness to the book, a ROS is a witness to a particular piece of land which has been constructed by written document or deed.

The confusion can come in, when we state and understand that an ROS can be filed on "anything" such as a random fenceline, path of travel forrest or garden enclosure, etc.

Thusly the ROS as a document itself serves multiple purposes, never the less, our profession must never lose sight of the seriousness and importance of the ROS It must not just be our opinion du-jour (help on the french Jim)?

A record of survey can serve as witness to a long used path of travel during a court case regarding prescriptive easement, but the use of the travelled way was the construction.

A record of survey is a witness tool.

[Dave Karoly, PLS]

"Constructive notice is a legal fiction. The law conclusively presumes that once an instrument is properly recorded, anyone who later acquires an interest in that property has notice of the instrument and its contents. This notice is imputed even if the person is totally ignorant of the document's existence.

"Limited Notice. Constructive notice is given to purchasers and encumbrancers. Thus, an excavator who digs on a property, damaging an underground pipe, has not had constructive notice of that pipe's existence simply because an easement has recorded. As one court stated, 'It is sometimes said that the record of a deed is constructive notice to all the world. This is too boad and unqualified an enunciation of the doctrine. It is constructive notice only to those who are bound to search for it.' Mt. States Tel. & Tel. Co. v. Kelton (1955) 285 P.2d 168."

-California Real Estate Law Sixth Edition, Ted H. Gordon, pg.s 249 & 250

It seems my statement above was overly broad. Gordon's comment about the water line would apply as to Constructive Notice but the excavator would likely still be liable under another statute, just not under Constructive Notice.

[Ben Lund]

This thread has helped me immensely! Thank you to all who have contributed.

Ben

[Ben Lund]

I know certificate of corrections are "filed" but I'm not sure if they are typically "recorded" also. Does the certificate of correction (on a recorded Map) constitute constructive notice to all parties affected? Would this have to show up on title before it was constructive notice?

Sorry for dragging this out. I'm still a little gray as to what really matters. In San Diego County, we have to search the Certificate of Correction "list" separately from the filed documents. Basically, we have to check all of the filed documents to make sure there hasn’t been a correction.

Thanks,
Ben

[dmi]

In order to impart constructive notice the document must be properly recorded in the country recorder's in the OFFICIAL RECORDS of that county.
Any other filing, recordING, or record keeping in some other place than a document properly recorded in the OFFICIAL RECORDS does not impart constructive notice. The content, type or the parties involved in the execution of the document does not matter as far as constructive notice is concerned. The question of whether or not the document is valid is an issue separate and a part from whether or not it imparts constructive.

To answer your question, if the certificate of correction is properly recorded in the OFFICIAL RECORDS of the subject county, then the document imparts constructive notice.

This does not mean that everyone knows about the document that imparts constructive notice. It means that they could easliy know about it if they wanted to and if they chose not to get the document and not to read it then their chances of prevailing with some type of cause of action is going to be greatly diminshed.

[goodgps]

In short gentlemen, this and most other threads hereon, provide a stimulous for thought and learning.

You and I own vehicles, yet I dare say, that we have not sought out, nor purchased every booklet for repairs, maintenance or have we even viewed the recall list. We submit our vehicles to trained professionals who maintain it for us. So it goes with our clients who purchase land. They enjoy their land much as we enjoy our vehicles. They must rely on us (and title companies)to provide information through research. Most land owners never visit the county records. They have no knowledge of certificate of correction. They rely on us to report to them. Therefore we ARE !!

This wonderful forum lends support to all of us through the unselfish sharing of knowledge and experience and I thank you all my brothers and sisters.
Serve your clients well and we will all be rewarded as the profession lifts.

Forgive them for they don't know what they bought, but don't ever make them do our work.

[mpallamary]

A Record of Survey does not impart constructive notice pursuant to Stearns v. Title Ins. & Trust Co. , 18 Cal.App.3d 162
[Civ. No. 10488. Court of Appeals of California, Fourth Appellate District, Division Two. June 17, 1971.] The case involved TICOR and its failure to pick up a ROS. Quoting from the court:

"Title Company, however, again relies on the policy. In the Conditions and Stipulations under a heading in bold print "Definitions of Terms," appears the following: ".... (b) 'Public Records': those records which impart constructive notice of matters relating to said land; ...." We entertain no doubt that the Official Government Survey and the recorded records of survey of Fulmor and Gully constitute public records. (Saunders v. Polich, 250 Cal.App.2d 136 , 140 [58 Cal.Rptr. 198].) In view of the definition in the policy, however, the question is whether they are such public records as impart constructive notice. We hold they are not.

[5] "[T]he mere fact that an instrument has been recorded does not give constructive notice thereof unless there is some statute authorizing or permitting such instrument to be placed of record and at the same time making the effect of such recording constructive notice." (Dreifus v. Marx, 40 Cal.App.2d 461 , 465-466 [104 P.2d 1080].) Numerous portions of the recording statutes specify the effect of constructive notice. (E.g., Civ. Code, §§ 1213, 1215 and 1219; Gov. Code, § 27282.) [3b, 4b] Private records of survey such as the Gully and Fulmor surveys are recorded, however, pursuant to Business and Professions Code section 8762 et seq. These sections contain no provision that such recordation shall impart constructive notice. The recordation of United States Government Surveys by the Department of Interior is provided for by section 751 of title 43 of the United States Code. The statute, however, does not provide for constructive notice.

I hope this helps.

[Ben Lund]

mpallamary,
So a Record of Survey alone does not give constructive notice but if the deed reads "Lot 1 per ROS XXXX", then the ROS is considered part of the public records that constitute constructive notice. Am I saying this right?
Thanks,
Ben

[dmi]

No, the record of survey does not impart constructive notice, even if the deed refers to the record of survey. It is an intersting gray area, because there are some records of surveys that WERE used for the purpose of subdividing land and property was conveyed by reference to those records of surveys.

This practice has been forbidden.