Question 20

Domain 3: Performing Notarial

A signer wants to record an instrument that affects real property and asks whether a subscribing witness can prove its execution instead of obtaining the signer’s acknowledgment. Under Government Code section 27287, which document must be acknowledged rather than proved by a subscribing witness before recording?

A general instrument affecting real property must be acknowledged, not proved by a subscribing witness.

This is correct because section 27287 expressly states that, except for any power of attorney, quitclaim deed, grant deed, mortgage, deed of trust, security agreement, or other document affecting real property, an instrument may be proved by subscribing witness. Since a grant deed is specifically named, it must be acknowledged rather than proved by subscribing witness before recording.

A trustee’s deed must be acknowledged, not proved by a subscribing witness, under Government Code section 27287.

A deed of reconveyance must be acknowledged, not proved by a subscribing witness, under Government Code section 27287.

Explanation

Government Code section 27287 provides that, before an instrument can be recorded, its execution must be acknowledged by the person executing it, or in limited cases proved by a subscribing witness. However, the statute expressly excludes certain documents from proof by subscribing witness, including any power of attorney, quitclaim deed, grant deed, mortgage, deed of trust, security agreement, or other document affecting real property. Therefore, a grant deed must be acknowledged and cannot be recorded based on proof by a subscribing witness. The same section also lists separate exceptions to the section itself, such as a trustee’s deed resulting from foreclosure and a deed of reconveyance. — Gov. Code § 27287

Memory Aid

Real-property transfer docs need the signer to ACK: think 'Grant gets ACK, not witness proof.'

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