A recorded declaration of covenants, conditions and restrictions ("CC&Rs") serve as constructive notice of the restrictions contained in the document.
Defined. Actual notice consists of express information of a fact. Constructive notice means notice given by the public records. By means of constructive notice, people are presumed to know the contents of recorded instruments.
Constructive notice is the equivalent of actual knowledge; i.e., knowledge of its contents is conclusively presumed. (Citizens for Covenant Compliance v. Anderson)
“By statute, any instrument "affecting the title to ... real property may be recorded" by the "county recorder of the county in which the real property affected thereby is situated." (Gov. Code, §27280, subd. (a); Civ. Code § 1169.) "Recording consists of copying the instrument in the record book and indexing it under the names of the parties. (See Govt. C. 27257, 27322 et seq.)" (4 Witkin, Summary of Cal. Law, supra, Real Property, § 200, p. 406.) Civil Code section 1213 provides that every "conveyance" of real property recorded as prescribed by law provides "constructive notice" of its contents to subsequent purchasers. The term "conveyance" is broadly defined to include "every instrument in writing ... by which the title to any real property may be affected ...." (Civ. Code, § 1215, italics added.) Constructive notice "is the equivalent of actual knowledge; i.e., knowledge of its contents is conclusively presumed." (4 Witkin, Summary of Cal. Law, supra, § 203, p. 408, italics in original.) CC&Rs, which affect title to real property, have long been recorded under these provisions. (See, e.g., Riley v. Bear Creek Planning Committee (1976) 17 Cal.3d 500, 504 . . .; Scaringe v. J. C. C. Enterprises, Inc., 205 Cal.App.3d at pp. 1540-1541, 1543-1544 . . .” Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 355.
DRE Reference Book. Posted on Department of Real Estate website: http://www.dre.ca.gov/files/pdf/refbook/ref05.pdf: CALIFORNIA ADOPTS A RECORDING SYSTEM. California was admitted to the Union by the United States on September 9, 1850. One of the first acts of the Legislature of the new state was to adopt a recording system by which evidence of title or interests in the title could be collected and maintained in a convenient and safe public place. The purpose of establishing a recording system was to inform persons planning to purchase or otherwise deal with land about the ownership and condition of the title. This system was designed to protect innocent lenders and purchasers against secret sales, transfers, or conveyances and from undisclosed encumbrances/liens. The purpose of this system is to allow the title to the real property to be freely transferable. The California Legislature adopted a recording system modeled after the system established by the original American Colonies. It was strictly an American device for safeguarding the ownership of and the encumbering of land/property.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.