Documents That Should Not Be Recorded
1. 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 property.
2. Improperly Acknowledged Documents – I.C. 55-805 states that “before an instrument 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.
4. 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.
Admittedly, 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.