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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

DANIEL E. LUNGREN
 

Attorney General
 

OPINION : 

: No. 94-808 

of : 

: November 18, 1994 

DANIEL E. LUNGREN : 

Attorney General : 

: 

ANTHONY S. DA VIGO : 

Deputy Attorney General : 

: 

THE HONORABLE MARGARET SNYDER, MEMBER OF THE CALIFORNIA 

STATE ASSEMBLY, has requested an opinion on the following question: 

Is a county recorder required to accept for recordation a "Notice of Intent to Preserve an 

Interest" that specifies an amount of money as the interest in the property and containing the "castle 

doctrine," i.e., "a man's home is his castle and, hence, he may use all manner of force including deadly 

force to protect it and its inhabitants from attack?" 

CONCLUSION 

A county recorder is not required to accept for recordation a "Notice of Intent to 

Preserve an Interest" that specifies an amount of money as the interest in the property and containing 

the "castle doctrine," i.e., "a man's home is his castle and, hence, he may use all manner of force 

including deadly force to protect it and its inhabitants from attack." 

ANALYSIS 

We are asked to determine whether a county recorder must record a document the 

principal substance of which declares applicable to the owner's property the "castle doctrine," i.e., "a 

man's home is his castle and, hence, he may use all manner of force including deadly force to protect it 

and its inhabitants from attack." We conclude that a county recorder has no statutory duty to record 

such a document containing the castle doctrine. 

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The force which may be justified in defense of persons or property within one's 

residence is prescribed by law. (See People v. Brown (1992) 6 Cal.App.4th 1489, 1496-1499; People 

v. Owen (1991) 226 Cal.App.3d 996, 1003-1007; People v. Gleghorn (1987) 193 Cal.App.3d 196, 

200-204.) Of course, the mere recording of some other standard of justification would not effect a 

change in the law applicable to the parcel to which it refers or to the consequences for a violation of the 

law. Indeed, it is settled that a recorded instrument which is not authorized by statute to be recorded, 

and self-serving declarations recorded in a chain of title which are not operative in transferring or 

creating a right or title, do not impart constructive notice to subsequent purchasers. (Brown v. Johnson 

(1979) 98 Cal.App.3d 844, 849-850.) Nevertheless, it remains to be determined whether the 

documentary recitation in question must be recorded at all. 

Government Code section 27201, subdivision (a)1 provides in part as follows: 

"The recorder shall, upon payment of proper fees and taxes, accept for 

recordation any instrument, paper, or notice which is authorized or required by law to 

be recorded, if the instrument, paper, or notice contains sufficient information to be 

indexed as provided by statute, meets recording requirements of state statutes and local 

ordinances and is photographically reproducible. The county recorder shall not refuse 

to record any instrument, paper, or notice which is authorized or required by law to be 

recorded on the basis of its lack of legal sufficiency."2 

Section 27320 provides: 

"When any instrument authorized by law to be recorded is deposited in the 

recorder's office for record, the recorder shall endorse upon it in the order in which it is 

deposited, the year, month, day, hour, and minute of its reception, and the amount of 

fees for recording. The recorder shall record it without delay . . . ." 

In view of the foregoing, we do not consider as the basis for our determination the legal insufficiency of 

the recitation contained within the document in question, but rather whether the instrument satisfies the 

requirements of section 27201, subdivision (a). Specifically, is the questioned document "authorized 

or required by law to be recorded," and does it meet "recording requirements of state statutes"? 

Preliminarily, we note that a public officer has only such powers as have been 

conferred by law, expressly or by implication. (See 75 Ops.Cal.Atty.Gen. 1 (1992) [Secretary of State 

not authorized to register domestic partners as unincorporated nonprofit corporations]; 65 

Ops.Cal.Atty.Gen. 321 (1982)[county recorder not authorized to record unlicensed declaration of 

marriage].) Also, while we have determined that a county may provide by ordinance for the recording 

1

Undesignated section references prior to footnote 3 are to the Government Code. 

2

The scope of our opinion herein pertains to documents executed after July 1, 1994, when the current language of section 

27201 became operative. (Stats. 1992, ch. 87, ' 9.) 

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of additional documents which would not conflict with pertinent state statutes, provided that such 

documents are filed in accordance with procedures prescribed by state law (63 Ops.Cal.Atty.Gen. 905 

(1980)), it is assumed for purposes of this opinion that no local ordinance authorizes the recording of 

the subject document. 

With respect to the prerequisite legal authority to record the proferred document, it is to 

be observed generally that a document is authorized for recording by any one of more than 100 express 

provisions of law contained in the various codes. (See 3 Miller & Starr, Current Law of Cal. Real 

Estate (2d ed. 1989) ' 8.5.) No suggestion is made that the castle doctrine is referenced in any specific 

authorizing statute. 

For example, regarding recordable documents affecting realty, section 27280, 

subdivision (a) provides: "Any instrument or judgment affecting the title to or possession of real 

property may be recorded pursuant to this chapter."3 The document in question neither affects the title 

to real property within the meaning of section 27280, nor, as we have seen, does it effect a change or 

modification of the law respecting the right of possession or defense of real property. 

The document under review is entitled "Notice of Intent to Preserve an Interest." 

Pursuant to the Marketable Record Title Act of 1982 (Civ. Code, '' 880.020-887.090; hereafter 

"Act"),4 

a notice of intent to preserve an interest in real property may be recorded under specified 

conditions. Section 880.310, subdivision (a) provides: 

"If the time within which an interest in real property expires pursuant to this 

title depends upon recordation of a notice of intent to preserve the interest, a person 

may preserve the person's interest from expiration by recording a notice of intent to 

preserve the interest before the interest expires pursuant to this title. Recordation of a 

notice of intent to preserve an interest in real property after the interest has expired 

pursuant to this title does not preserve the interest." 

Section 880.330 states: 

"Subject to all statutory requirements for recorded documents: 

"(a) A notice of intent to preserve an interest in real property shall be in 

writing and signed and verified by or on behalf of the claimant. If the notice is made 

on behalf of a claimant, the notice shall include a statement of the authority of the 

person making the notice. 

3

Of course, a grant deed is an instrument affecting title to realty. (Civ. Code, ' 1053; Klamath Land & Cattle Company 

v. Roemer (1970) 12 Cal.App.3d 613, 618.) Accordingly, such an instrument containing sufficient information and satisfying 

the requirements of law would, upon presentation, be accepted for recordation. (' 27201.) The duty to record would not be 

vitiated by the inclusion of an extraneous recitation, such as the castle doctrine, which is void and separable from the import of 

the instrument. (Cf. Wharton v. Mollinet (1951) 103 Cal.App.2d 710, 713.) 

4

Undesignated section references hereafter are to the Civil Code. 

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"(b) The notice shall contain all of the following information: 

"(1) The name and mailing address of the claimant. If the notice is made by 

or on behalf of more than one claimant the notice shall contain the name and mailing 

address of each claimant. 

"(2) A statement of the character of the interest claimed. The statement shall 

include a reference by record location to the recorded document that creates or 

evidences the interest in the claimant. 

"(3) A legal description of the real property in which the interest is claimed. 

The description may be the same as that contained in the recorded documents that 

creates or evidences the interest in the claimant." 

Section 880.350 provides: 

"(a) A notice of intent to preserve an interest in real property shall be recorded 

in the county in which the real property is situated. 

"(b) The county recorder shall index a notice of intent to preserve an interest 

in real property in the index of grantors and grantees. The index entry shall be for the 

grantor, and for the purpose of this index, the claimant under the notice shall be deemed 

to be the grantor. If a notice of intent to preserve is recorded by or on behalf of more 

than one claimant, each claimant shall be deemed to be a grantor and a separate index 

entry shall be made for each claimant." 

The purposes of the Act are to provide for the extinguishment of remote interests in real property and 

for the means to preserve from extinguishment such interests, as explained in section 880.020, 

subdivision (b): 

"It is the purpose of the Legislature in enacting this title to simplify and 

facilitate real property title transactions in furtherance of public policy by enabling 

persons to rely on record title to the extent provided in this title, with respect to 

property interests specified in this title, subject only to the limitations expressly 

provided in this title and notwithstanding any provision or implication to the contrary in 

any other statute or in the common law. This title shall be liberally construed to effect 

the legislative purpose." (Emphasis added.) 

The property interests specified in the Act that would otherwise expire unless a notice of intent to 

preserve the interest is recorded (' 880.310, subd. (a))5 consist of ancient mortgages and deeds of trust 

5

Interests that are not subject to expiration under the Act's provisions include possessory interests and interests held by 

public entities. (' 880.240.) 

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('' 882.020-882.040), mineral rights ('' 883.110-883.270), unexercised options ('' 884.010-884.030), 

powers of termination ('' 885.010-885.070), unperformed contracts for sale ('' 886.010-886.050), and 

abandoned easements ('' 887.010-887.090). The interest herein sought to be preserved is a specified 

amount of money, presumably the amount invested in the property for which the castle doctrine is 

declared. The interest is claimed to exist as a result of a grant deed recorded on the property. 

Obviously, such interest is not described in the Act, and accordingly, the Act provides no authority for 

its recordation. 

Finally, we consider whether the document in question satisfies the recording 

requirements of state statutes. In 67 Ops.Cal.Atty.Gen. 93 (1984) we determined that the provision 

precluding the county recorder from refusing to record any instrument "on the basis of its lack of legal 

sufficiency" (Gov. Code, ' 27201, subd. (a)) did not set aside the need for documents to comply with 

the recording prerequisites of Government Code sections 27280-27296, or for the county recorder to 

ensure that a document complies before recording it.6 Nor do we now suppose that Government Code 

section 27201 sets aside or impairs the need for documents to comply with the recording prerequisites 

of the Act under which the purported interest is sought to be preserved. Since the castle doctrine is 

contrary to the general law which, as amended from time to time, solely determines and defines a 

person's rights and interests in real property, the recording requirement of providing "a reference by 

record location to the recorded document that creates or evidences the interest in the claimant" ('

880.330, subd. (b)(2)) cannot be met. 

It is concluded that a county recorder is not required to accept or recordation a "Notice 

of Intent to Preserve an Interest" that specifies an amount of money as the interest in the property and 

containing the castle doctrine, i.e., "a man's home is his castle and, hence, he may use all manner of 

force including deadly force to protect it and its inhabitants from attack." 

* * * * * 

6 In another context, we determined that it is the ministerial duty of a county recorder to record a document which is 

proper in form provided that it complies with statutory prerequisites. (65 Ops.Cal.Atty.Gen., supra, 324-325.) 

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