Legal Question in Real Estate Law in California

Re: Notary did not keep log for Grant Deed

Is mother alive? If so, it would be easy to challenge. She simply retains an attorney and files to suit to set aside the transfer on the basis of fraud, misrepresentation, duress, among other potential bases.

If she is not alive, then the task is more difficult and will likely require the opening of a probate and subsequent litigation within the probate case.

The fact that the notary did not obtain the requisite proof of identity merely means that the signature itself can be challenged, not the validity of the actual transfer. Here, your facts indicate that mother signed the deed but that she was defrauded or didn't understand what she was signing, yes? If so, then the validity of the signature is not an issue.

The answer to your question is yes, it can certainly be challenged. The issue is how it is to be challenged and in what forum.

If mother is alive, find yourself a good real property litigator. If she has a conservator, then the conservator will act on her behalf. We are litigators with extensive experience with title issues. We woudl be pleased to speak with you if you need help. Call or email if you have questions.

If your mother has passed, then you will need to find a decent probate litigator familiar with title issues.

Good luck.

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Re: Notary did not keep log for Grant Deed

As I understand the facts, it is mother, not daughter, who challenges the deed's validity.

There are two related causes of action (legal theories of recovery), either of which could be used: a 'quiet title' suit, or a suit 'to remove cloud on title.' The former is a broad-axe ownership-determination action; the latter is used to attack a particular document or issue, and may be more appropriate here.

With all the information about the recording and the notary, you fail to mention a key issue: does the deed bear the genuine signature of the grantor (mother)? If so, wherein lies the misrepresentation? Were the terms of the grant altered or inserted after mother signed, or was mother told it wasn't a deed, it was only a loan application or something like that? If so, and if a judge believes the evidence, the deed is void and can be expunged from the record of title. If, however, daughter's misrepresentation was only to the effect that 'If you sign this deed, I'll take good care of you,' or some similar promise, this is a different species of fraud and the deed probably can't be set aside.

The failure of the notary to make a proper record is perhaps evidence of fraud, but does not in itself affect the validity of the deed. Deeds don't have to be notarized to be effective between the parties thereto; notarization (acknowledgment) is merely a prerequisite to recording, which in turn protects the grantee from third-party claims.