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LP-3 Required Reading Part Two - A

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Deeds and Transfer of Title

I . Introduction

Before the modern-day concept of land ownership, t i t le to real estate was

evidenced pr imari ly by possession of the land and the power to defend the land

against others. The earl iest method of transferr ing t it le to real property was simply

surrender of possession by the claimant to another.

The use of deeds to convey real property has a long and colorful history.

Personal property has always been transferred by giving possession of the thing

itself . In feudal land transfers, the seller presented a clod of dirt f rom the land to

the buyer in the presence of witnesses to symbolize delivery of t i t le. Today, the

del ivery of the deed constitutes the actual transfer of t i t le to the land.

Tit le to real property transfers f rom one person to another by one of four

general means:

1. Descent;

2. Will;

3. Involuntary al ienation; or

4. Voluntary al ienation.

Tit le transfers “by descent ” when a person dies wi thout leaving a wi l l

( intestate). Al l states have statutes of descent and distr ibut ion providing for the

orderly disposit ion of real property for those who die intestate. Such statutes

typical ly distr ibute property to the nearest relat ives, on the presumpt ion that this

would have been the desire of the deceased. According to the Colorado Probate

Code, a port ion of which is pr inted below, distr ibut ion of the largest share of the

property of the decedent, and never less than half of the estate, descends to th e

surviving spouse.


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§ 15-10-112, C.R.S. Cost of l iving adjustment of certain

dollar amounts.

(1) As used in this section, unless the context otherwise requires:

(a) “CPI” means the consumer price index (annual average) for all urban

consumers (CPI-U): United States city average—al l i tems, reported by the

bureau of labor stat ist ics, United States department of labor or its

successor agency or, if the index is disco ntinued, an equivalent index

reported by a federal authority. I f no such index is reported, the term

means the substitute index chosen by the department of revenue; and

(b) “Reference base index” means the CPI for the calendar year 2010.

(2) The dol lar amounts stated in sections 15-11-102, 15-11-201 (2), 15-11-403,

15-11-405, and 15-12-1201 apply to the estate of a decedent who died

during or af ter 2010, but for the estate of a decedent who died af ter 2011,

these dol lar amounts must be increased or decreased if the CPI for the

calendar year immediately preceding the year of death exceeds or is less

than the reference base index. The amount of any increase or decrease is

computed by mult iplying each dollar amount by the percentage by which the

CPI for the calendar year immediately preceding the year of death exceeds

or is less than the reference base index. I f the amount of the increase or

decrease produced by the computat ion is not a mult iple of one thousand

dol lars, then the amount of the increase or decre ase is rounded down if i t is

an increase, or rounded up if i t is a decrease, to the next mult iple of one

thousand dol lars, but for the purpose of section 15 -11-405, the per iodic

instal lment amount is the lump-sum amount divided by twelve. I f the CPI for

2010 is changed by the bureau of labor stat ist ics, the reference base index

must be revised using the rebasing factor reported by the bureau of labor

stat ist ics, or other comparable data if a rebasing factor is not reported.


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(3) Before February 1, 2012, and before February 1 of each succeeding year,

the department of revenue shall publ ish a cumulat ive l ist, beginning with the

dol lar amounts ef fect ive for the estate of a decedent who died in 2012 of

each dol lar amount as increased or decreased under this sect i on.

§ 15-11-101, C.R.S. Intestate estate.

(1) Any part of a decedent ’s estate not ef fect ively disposed of by wi l l or

otherwise passes by intestate succession to the decedent ’s heirs as

prescribed in this code, except as modif ied by the decedent ’s wi l l .

(2) A decedent by wi l l may expressly exclude or l imit the r ight of an individual or

class to succeed to property of the decedent passing by intestate

succession. I f that individual or a member of that class survives the

decedent, the share of the decedent ’s intestate estate to which that

individual or class would have succeeded passes as if that individual or each

member of that class had disclaimed his or her intestate share.

§ 15-11-102, C.R.S. Share of spouse.

The var ious possible circumstances describing t he decedent, his or her

surviving spouse, and their surviving descendants, if any, are set forth in this

section to be ut i l ized in determining the intestate share of the decedent’s surviving

spouse. I f more than one circumstance is appl icable, the circumstance that

produces the largest share for the surviving spouse shal l be appl ied. The intestate

share of a decedent’s surviving spouse is:

(1) The entire intestate estate if :

(a) No descendant or parent of the decedent survives the decedent; or

(b) Al l of the decedent’s surviving descendants are also descendants of the

surviving spouse and there is no other descendant of the surviving

spouse who survives the decedent;


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(2) The f irst three hundred thousand dol lars, plus three -fourths of any balance of

the intestate estate, if no descendant of the decedent survives the decedent,

but a parent of the decedent survives the decedent;

(3) The f irst two hundred twenty-f ive thousand dollars, plus one-half of any

balance of the intestate estate, if al l of the decede nt ’s surviving

descendants are also descendants of the surviving spouse and the

surviving spouse has one or more surviving descendants who are not

descendants of the decedent;

(4) The f irst one hundred f if ty thousand dol lars, plus one -half of any balance of

the intestate estate, if one or more of the decedent’s surviving descendants

are not descendants of the surviving spouse.

(5) (Deleted by amendment, L. 2009, (HB 09 -1287), ch. 310, p. 1671, § 3,

effect ive July 1, 2010.)

(6) The dol lar amounts stated in this section shall be increased or decreased

based on the cost of l iving adjustment as calculated and specif ied in

sect ion 15-10-112.

(Applies on or af ter July 1, 2010, to governing instruments executed by

decedents who die on or af ter July 1, 2010)

§ 15-11-102.5, C.R.S. Share of designated beneficiary.

(1) I f the decedent is survived by a person with the r ight to inher i t real or

personal property f rom the decedent in a designated benef iciary agreement

executed pursuant to art icle 22 of this t it le, the intestate share of the

decedent ’s designated benef iciary is:

(a) The entire estate if no descendent of the decedent survives the

decedent; or


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(b) One half of the intestate estate if one or more descendants of the

decedent survive the decedent.

§ 15-11-103, C.R.S. Share of heirs other than surviving spouse

and designated beneficiary.

Any part of the intestate estate not passing to the decedent’s surviving spouse

under section 15-11-102, or to the decedent’s surviving designated benef ic iary

under section 15-11-102.5, or the entire intestate estate if there is no surviving

spouse and no surviving designated benef iciary with the r ight to inher it real or

personal property f rom the decedent through intestate succession, passes in the

following order to the indiv iduals who survive the decedent:

(1) (Deleted by amendment, L. 2010, (SB 10-199), ch. 374,

p. 1748, § 5, ef fect ive July 1, 2010.)

(2) To the decedent’s descendants per capita at each generat ion;

(3) I f there is no surviving descendant, to the decedent ’s pa rents equally if both

survive, or to the surviving parent if only one survives;

(4) I f there is no surviving descendant or parent, to the descendants of the

decedent ’s parents or either of them per capita at each generation;

(5) I f there is no surviving descendant, parent, or descendant of a parent, but

the decedent is survived on both the paternal and maternal s ides by one or

more grandparents or descendants of grandparents:

(a) Half to the decedent ’s paternal grandparents equal ly if both survive, to

the surviving paternal grandparent if only one survives, or to the

descendants of the decedent’s paternal grandparents or either of them if

both are deceased, the descendants taking per capita at each

generation; and


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(b) Half to the decedent ’s maternal grandpar ents equal ly if both survive, to

the surviving maternal grandparent if only one survives, or to the

descendants of the decedent’s maternal grandparents or either of them if

both are deceased, the descendants taking per capita at each generation;

(6) I f there is no surviving descendant, parent, or descendant of a parent, but

the decedent is survived by one or more grandparents or descendants of

grandparents on the paternal but not the maternal s ide, or on the maternal

but not the paternal side, to the decedent’s relat ives on the side with one or

more surviving members in the manner as descr ibed in subsection (5) of

this sect ion;

(7) (Deleted by amendment, L. 2010, (SB 10-199), ch. 374,

p. 1748, § 5, ef fect ive July 1, 2010.)

(8) (Deleted by amendment, L. 2009, (HB 09-1287), ch. 310,

p. 1672, § 4, ef fect ive July 1, 2010.)

Any part of the intestate estate not passing to the decedent’s surviving spouse

under § 15-11-102, C.R.S. , or to the decedent ’s surviving designated benef ic iary

under § 15-11-102.5, C.R.S. , passes to the nearest surviving relat ives in

accordance with § 15-11-103, C.R.S.

Tit le to property of a decedent more of ten transfers “ by will .” The laws of each

state give a person a l imited r ight to dispose of property af ter death. A person who

dies leav ing a last wil l and testament is said to have died “ testate .” In no state

may a decedent completely exclude a spouse from distr ibut ion of his or her

property. Under the Colorado Probate Code, a surviving spouse is entit led to a

share of the estate even if there is a wi l l to the contrary. § 15-11-201, C.R.S. Right

to elective-share:


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§ 15-11-201, C.R.S. Right to elective-share.

(1) Elective-share amount. The surviving spouse of a decedent who dies

domici led in this state has a r ight of elect ion, under the l imitat ions and

condit ions stated in this part 2, to take an elect ive -share amount not greater

than one-half of the value of the augmented estate, determined by the length

of t ime the spouse and the decedent were married to each other, in

accordance with the following schedule:

If the decedent and the spouse were married

to each other:

The elective-share

percentage is:

Less than 1 year Supplemental amount only.

1 year but less than 2 years 5% of the augmented estate.

2 years but less than 3 years 10% of the augmented estate.








10 years or more 50% of the augmented estate.

(2) (a) Supplemental elective-share amount. I f the sum of the amounts

descr ibed in sections 15-11-202 (2) (d), 15-11-203 (1) (a), and that part

of the elect ive-share amount payable f rom the decedent’s probate estate

and nonprobate transfers to others under section 15-11-203 (2) and (3) is

less than f if ty thousand dollars, the surviving spouse is ent it led to a

supplemental elect ive-share amount equal to f if ty thousand dol lars, minus

the sum of the amounts descr ibed in those sections. The supplemental


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elect ive-share amount is payable f rom the decedent ’s probate estate and

f rom recipients of the decedent ’s nonprobate transfers to others in the

order of priority set forth in section 15-11-203 (2) and (3).

(b) The dol lar amount stated in paragraph (a) of this subsection (2) shal l be

increased or decreased based on the cost of l iving adjustment as

calculated and specif ied in sect ion 15 -10-112.

(3) Effect of election on statutory benefits. If the r ight of elect ion is exercised

by or on behalf of the surviving spouse, the surviving spouse’s exempt

property and family al lowance, if any, are not charged against but are in

addit ion to the elect ive-share and supplemental elect ive-share amounts.

(4) Nondomiciliary. The right, if any, of the surviving spouse of a decedent who

dies domici led outside this state to take an elect ive-share in property in this

state is governed by the law of the decedent’s domici le at death.

“Involuntary alienation ” (al ienation as used here means “transfer”) is a

transfer without the owner ’s consent. Examples of such involuntary transfers are

tax sales and sales to foreclose a mortgage or to enforce mechanics’ or other

l iens. Involuntary alienation also occurs i f t i t le is lost through “ adverse

possession ,” a situation in which an owner is not making use of the property and

an adverse claimant possesses the real estate openly and notoriously, hosti le to,

and to the exclusion of the owner for a period of t ime as required by law (18 years

in Colorado).

“Voluntary alienation ,” by gif t , loan, trade, or sale is the normal mode of real

estate transfer, whereby either all or some of the owner’s r ights are voluntar i ly

transferred to another. Examples of such transfers are: a buy -sel l contract

consummated by del ivery of a deed, transfer of t i t le by a deed of trust or mortgage

as secur ity for the payment of a note, or a lease.

The “right of alienation” is one of the “bundle of r ights” of real estate

ownership, al lowing one to transfer ownership of real property to another. Living


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persons general ly convey t it le by the execution and delivery of a deed. A “ deed” is

a legal instrument in wr it ing, duly executed and delivered, whereby a grantor

(owner) conveys to a grantee some right, t i t le, or interest in or to the real estate.

Real estate may also be conveyed by deed to a person (e.g. , an individual,

partnership, or corporat ion) as trustee for the benef it of a third party. The trustee

then holds legal t i t le and the third party holds the equitable t it le and receives the

benef its.

A. Types of Deeds

There are four major classif icat ions of deeds:

1. General warranty deed;

2. Special warranty deed;

3. Bargain and sale deed; and

4. Quitclaim deed.

The types of deeds dif fer solely in the degree of protect ion that the grantor

promises or warrants to the grantee. No type of deed transfers any greater or

lesser interest than another. For example, if a grantor conveys t it le in fee simple

by a general warranty deed, the same fee simple ownership is transferred as if he

or she had used a quitc laim deed. However, the general warranty deed grantor

promises to defend against any loss incurred due to any t it le defect, whereas

transfer by quitc laim deed contains no such warrant.

General Warranty Deed

A general warranty deed is one in which the grantor warrants or guarantees t it le

against defects that existed before the grantor acquired t it le or that arose dur ing

the grantor’s ownership. I t does not warrant against encumbrances or defects


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aris ing f rom the grantee’s own acts. The usual covenants or warrant ies contain ed

in a general warranty deed are:

1. Covenant of seisin. Guarantees the grantor’s ownership and that he or she

has the r ight to convey it . The fact that the property is mortgaged or is

subject to some restr ict ion does not breach this covenant.

2. Covenant against encumbrances. Guarantees that there are no

encumbrances or c laims against the property except those specif ical ly

excluded in the deed.

3. Covenant of quiet enjoyment. Guarantees that the grantee wi l l not be

evicted or disturbed in possession of the property. Threats or claims by a

third party do not breach this covenant. The grantee would have to actual ly

be dispossessed before being entit led to seek recovery against the grantor

under this covenant.

4. Covenant of further assurance. Guarantees that the grantor wi l l procure

and del iver any other instruments that are subsequently necessary to make

the t it le good.

5. Covenant of warrant forever. Guarantees that the grantee shal l have t it le to

and possession of the property. Sometimes considered part of “quiet

enjoyment.” The f irst two covenants relate to the past, and generally do not

“run with the land”—meaning that only the current grantee may sue the

grantor for a breach. The last three covenants protect against future defects

and are said to run with the land—al lowing any subsequent grantee to seek

remedy for breach against any previous grantor. According to § 38-30-121,

C.R.S. , “covenants of seisin, peaceable possession, f reedom from

encumbrances, and warranty contained in any conveyance of real estate, or

any interest therein, shall run with the premises and inure to the benef it of

al l subsequent purchasers and encumbrancers.”


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Special Warranty Deed

The grantor of a special warranty deed warrants the t it le only against defects

aris ing af ter the grantor acquired the property and not against t it le defects arising

before that t ime.

Bargain and Sale Deed

Technical ly, any deed that recites a considerat ion and purports to convey the

real estate is a bargain and sale deed. Thus, many quitc la im and warranty deeds

are also deeds of bargain and sale. Bargain and sale deeds of ten contain a

covenant against the grantor’s acts, whereby the grantor warrants only that the

grantor has done nothing to harm the t it le. This covenant would not run with the

land. Examples of bargain and sale deeds with a covenant against the grantor ’s

acts are an executor ’s or personal representat ive’s deed, a benef iciary’s deed, an

administrator ’s deed, and a conservator ’s or guardian’s deed.

Quitclaim Deed

The grantor of a quitclaim deed warrants absolutely nothing. A quitclaim deed

transfers the grantor’s present interest in the land, if any. A quitc laim deed is

f requently used to clear up a technical defect in the chain of t i t le, to release l ien

claims against the property, to remove an owner in a mult iple ownership situation,

or when someone changes their name (e.g. , to a married name). Examples of such

deeds are correct ion deeds and deeds of release.

B. Usual Elements of Deeds

In general, the usual elements of a deed ar e:

1. Writ ten instrument;

2. Part ies – grantor and grantee;

3. Recital of considerat ion;


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4. Words of conveyance;

5. Descr ipt ion of the property;

6. Signature;

7. Del ivery and acceptance;

8. Except ions and restr ict ions;

9. Warranties and covenants;

10. Date;

11. Acknowledgment; and

12. Recording.

The f irst seven elements above are absolutely essent ial for a val id deed. The

other f ive are recommended, but wi l l not inval idate a deed if omitted:

1. Written Instrument. A deed must be in writ ing to be ef fect ive. The Colorado

statute of f rauds, § 38-10-106, C.R.S., requires: “No estate or interest in

lands, other than leases for a term not exceeding one year, nor any trust or

power over or concerning lands or in any manner relat ing thereto shall be

created, granted, assigned, surrendered, or declared, unless by act or

operat ion of law, or by deed or conveyance in writ ing subscr ibed by the party

creating, granting, assigning, surrender ing, or declar ing the same, or by his

lawful agent thereunto author ized by wr it ing.” Note the two exceptions to the

requirement of a wr it ten instrument are: (1) a lease for a term not exceeding

one year, and (2) an interest or estate created by operat ion of law.

The courts may set aside a deed a ltered in any manner af ter del ivery to

the grantee. This means that all blanks on prepr inted forms must be f i l led in

according to the requirements of law and the intention of the part ies.


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2. Parties: Grantor and Grantee. A val id deed must clear ly name or designate

the grantor who is conveying interest in the property. The grantor’s name

must be identical to the name shown as the grantee in the conveyance by

which the grantor received t it le. A minor discrepancy in name may not

inval idate the deed, but could lead to legal chal lenge. A natural person

grantor should be of sound mind. I f a grantor is a minor and not of legal age,

the conveyance may later be set aside and the grantor could recover the

property.

A deed is void if i t fails to designate with reasonab le certainty the

grantee to whom t it le passes. Colorado deeds dated af ter January 1, 1977

must include the legal address of the grantee, including a road or street

address. County clerks and recorders may reject a deed that does not

comply. (See § 38-35-109(2), C.R.S.)

3. Recital of Consideration. A deed is val id without tangible considerat ion, but

should contain at least a recital of considerat ion (e.g. , for $1.00, or for love

and af fect ion). Lack of considerat ion does not render a gif t conveyance void,

but may preclude a donee (receiver of the gif t) f rom enforcing warranty deed

covenants against the donor (grantor). A gif t deed may also be set aside on

grounds of f raud. For example, the grantor’s creditors may set aside a deed

gif t ing property to defraud creditors. I f the deed recites considerat ion, the

burden of proving lack of considerat ion is on the one who attacks the deed.

Section 39-13-102, C.R.S. , requires a “documentary fee” on real property

conveyances where the considerat ion is more than $500. Each county clerk

and recorder must col lect one penny per one hundred dol lars (sale pr ice x

.0001) of considerat ion whenever a deed is recorded. The documentary fee

aids county tax assessors in determining property values. Section 39-14-

102, C.R.S., requires the grantor and/or grantee to provide a “declarat ion” to

the property tax administrator along with al l conveyance documents subject

to a documentary fee when presented for recording. I t is a criminal offense

to misstate actual considerat ion to the clerk and recorder. The assessor may


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impose a penalty of $25.00 or twenty -f ive one-thousandths of one percent of

the sale price, whichever is greater, for fai lure of the grantee to submit the

declarat ion. The deed itself is val id whether considerat ion sho wn on the face

of the instrument is t rue and actual or nominal.

4. Words of Conveyance or Quitclaim. A deed must contain words that

manifest intent to transfer t it le, or else it is inef fect ive. No specif ic words

are required, but “sell and convey,” “grant , bargain, sel l, and convey,” or

“convey and warrant” are commonly used. The word “quitc laim” is

substituted for “convey” in a quitc laim deed.

5. Description of the Property. A deed is not val id unless it legally

descr ibes the real estate conveyed or quitc laimed. Any descr ipt ion that

clearly identif ies the property is suf f icient , but using the same legal

descr ipt ion used in previous deeds to the same parcel avoids

discrepancies in the records and possible future t it le l i t igat ion. Courts

may be l iberal in ho lding rather ambiguous descr ipt ions to be val id, but a

court act ion is a high price to pay to correct technical errors that could

have been avoided when draf t ing the legal descr ipt ion.

Any deed recorded af ter July 1, 1992, where the legal descript ion has

been newly created, must contain the name and address of the person

who created the new legal descr ipt ion; however, failure to include this

information wi l l not affect the val idity or the recordabil i ty of the deed.

(See § 38-35-106.5, C.R.S.)

Section 38-35-122, C.R.S., provides that in addit ion to the legal

descr ipt ion, the street address or identifying numbers on bui ldings, and

the assessor’s schedule or parcel number, must appear on the document

of t it le. However, failure to include this addit ional information wi l l not

render the document inef fect ive or the t it le unmarketable.


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A deed normally contains words fol lowing the descr ipt ion indicating

that al l the appurtenances go with the land. Al l improvements go with the

land as appurtenances.

6. Signature. A deed not signed by the grantor is inval id. I f there is more

than one grantor (e.g. , joint tenants), each must sign the deed. A few

states, primar ily in the east, require a seal for a deed to be val id.

Colorado and most states have abol ished the requirement for a seal.

Colorado does not require that the signature of the grantor be witnessed.

7. Delivery and Acceptance. To be ef fect ive, a deed must be both delivered

by the grantor and accepted by the grantee. The intent of the grantor

determines de l ivery. Present ing a deed to the grantee for examinat ion

does not const itute del ivery. The grantor must del iver with intent to pass

t it le to the grantee. Under § 38-35-101, C.R.S., an acknowledged and

recorded deed presumes effect ive delivery.

Effect ive de livery must occur whi le the grantor is al ive. I f a grantor

executes a deed, retains it , and directs it to be delivered to the grantee at

the grantor’s death, the deed does not pass t it le. A grantor may del iver a

deed to a third party to be held and delivered later

to the grantee, but to be effect ive, the grantor must surrender al l r ight to

control or recover

the deed.

8. Exceptions and Restrictions. A grantor is assumed to convey property

f ree and clear of al l encumbrances. Therefore, the deed usually provides

that the grantor conveys the property “f ree and clear of al l encumbrances

except …”— followed by the exception, such as: “subject to a deed of trust

(complete descr ipt ion)”; or “subject to an easement (complete

descr ipt ion)”; or “subject to al l encumbrances and restr ict ions of record.”


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A grantor may restr ict the grantee’s r ight to use the real estate

conveyed, as long as such restr ict ions are reasonable and not contrary to

public policy. The use of such deed restr ict ions, or “ restrictive

covenants ,” is an old pract ice der iving f rom the bundle of property r ights.

An owner has the r ight of f ree alienation, that is, the r ight to dispose of

his or her interest in any manner whatsoever. Once deed restr ict ions are

established, they run with the land, l imit ing its use by all future grantees.

Covenants are standard features in subdivis ions and are intended to

benef it al l the landowners.

Typical restr ict ions deal with the minimum size of the house, type of

bui lding or roof ing material, or exclusion of commercial establ ishments.

Well-formulated deed restr ict ions have a stabi l izing effect on property

values. Homeowners are protected against forbidden uses, and may rest

assured that a nuisance business wi l l not be a neighbor or that a

neighbor’s house wil l meet certain minimum standards. Deed restr ict ions

must be enforced through court act ion brought by any party for whose

benef it the restr ict ions were imposed.

9. Warranties and Covenants. Warranties are not an essent ial requirement

of a val id deed. A grantor may transfer interest by a quitc laim deed,

giving no warranty of any kind, or by a general warranty deed, wherein

the grantor makes numerous warrants to the grantee. Section 38-30-113,

C.R.S., specif ies a short -form warranty deed whereby every deed that is

similar to the statutory form, and which includes the words “and

warrant(s) the t it le,” automatical ly implies the usual general warranty

deed covenants.

In 2005, § 38-30-113(1)(d), C.R.S. , added that a proper ly executed

deed conveys the grantor’s interest, if any, in any vacated street, al ley, or

other r ight-of-way that adjoins the real property “unless the transfer of

such interest is expressly excluded in the deed.”


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10.Date. A date is not essent ial for a val id deed, although it is a universal

custom to date al l deeds. A dated deed might obviously prevent future

question or controversy concerning the t ime of delivery of the deed.

11.Acknowledgment. An acknowledgment is a declarat ion made by a person

(grantor) to a notary public, or other authorized off icial, that the grantor

executed the instrument and did so f reely and voluntari ly. The off icial f i l ls

out a cert if icate of acknowledgment customari ly printed on the deed.

Section 38-35-101, C.R.S. , provides: “No off icer … shal l take or cert ify

such acknowledgments unless the person making the same is personal ly

known to such of f icer to be the identical person he represents himself to

be…. It shal l not be necessary to state such fact in his cert if icate of

acknowledgment attached to any instrument affect ing t it le to real

property.”

In most states, including Colorado, a deed is val id and may be

recorded without being notarized. Many states, however, require

acknowledgment as a condit ion of recording.

I t is always sound pract ice to have a deed acknowledged before

recording because of the presumpt ion of proper del ivery and acceptance

(see number 7 above). An acknowledged deed may be evidence if a t it le

controversy arises. An unacknowledged deed may only be used as

evidence of the transaction if i t has been recorded ten y ears or more and

proven in court that the deed was proper ly executed.

(See § 38-35-106, C.R.S.)

The facts in a deed recorded for 20 years or more may be read in

evidence and received as pr ima facie evidence of these facts.

(See § 38-35-107, C.R.S.)


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12.Recording. A deed is val id even if i t is not recorded. The wording of the

Colorado recording statute is permissive (“may be”) rather than

mandatory (“must be”).

Recording offers a two-fold benef it . I t protects an innocent purchaser

or encumbrancer f rom act ing in ignorance of an unrecorded instrument,

and it provides “constructive notice ,” a legal ly conclusive presumption

that al l persons have knowledge of recorded instruments. I t is in the

grantee’s best interest to record the deed immediately.

Lack of acknowledgment does not inval idate construct ive not ice. A

recorded deed that is not acknowledged st i l l serves not ice to subsequent

purchasers. (See § 38-35-106, C.R.S.)

In addit ion to construct ive notice, a purchaser or encumbrancer may

have “actual notice” of another’s r ight or claim. For instance, a purchaser

is presumed to have actual not ice of al l r ights and claims of part ies in

possession of the property, so that even if the r ight or claim is

unrecorded, the purchaser cannot defeat i t .

(DORA, 9-1 – 9-10)

Ci ted Mater ia l:

DORA. "Chapter 9: Deeds and Transfer of T i t le ." Colorado Real Estate Manual .

Char lottesvi l le , VA: LexisNexis, 2014. . Pr int .

deeds and transfer of title (req read) p2a.pdfdeeds and transfer of title i. introduction before the...

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