Documents That Should Not Be Recorded
Improperly Executed Documents - It is somewhat a matter of common sense
that a document must be executed by the party acting within the content
of the document for it to be a proper document for recording. I.C.
55-805 would certainly imply such a requirement with reference to
instruments affecting title or possession of real property. I.C. 32-912
specifically requires both spouses to execute aconveydn-ce of community
Improperly Acknowledged Documents - I.C. 55-805 states that "before
may be recorded, unless it is otherwise expressly provided ,
its execution must be acknowledged by the person executing it" (emphasis
added). As indicated, this statutory statement uses the term "instruments",
and is found in Title 55, Chapter 8, of the Idaho Code dealing with
"instruments and judgments affecting title to or possession of real
property" (I.C. 55-801). At a minimum, such documents must be "properly"
acknowledged unless otherwise excused by statute. A "U.S. Patent" under I.C.
55-803 would be an instrument that specifically does not require
acknowledgment to be recordable. As previously discussed, Title 55, Chapter
7, of the Idaho Code describes the requirements of a "proper
acknowledgment". Aside from an improper acknowledgment being grounds for
refusal to record, a recorded instrument with an improper acknowledgment
does not cause "constructive notice" (Credit Bureau of Preston v.
Sleight , 92 Idaho 210, 440 P. 2nd 143 (1968); In re Big
River Grain Inc. , 718 F. 2nd 968 (9th Cir., 1983)). See page 4 for
a discussion of "constructive notice".
|3. "Documents not in English or translated" - I.C. 73-121 provides that "any
document required to be filed recorded.... shall be in the
English language or shall be accompanied by a certified translation
in English" (empha
added). The code section is silent on the meaning of "certified".
Assumably, it is some type of oath by the translator as to the accuracy
of the translation.
Documents not statutorially entitled to be recorded - Using
rules of statutory construction, I.C. 312402 can be read to
be "exclusionary". Unless
specifically included in I.C. 31-2402 (previously discussed), including 'Isuch
other writings as are required or permitted by law to be recorded" (previously
discussed), a document is not eligible for recording. As
previously discussed, "recording" is a statutory concept that
did not exist at common law.
some of the statutory classifications such as "affidavits
affecting title to real property" (I.C. 55-816) and "summaries of
instruments affecting real property" (I.C. 55-818) are very broad
in their application and will require discretionary content review to
determine whether they are properly recordable.