What does the term fictitious deed mean in California?
The term fictitious deed of trust is a modern day legal term used to refer a general deed of trust recordable in every California county, containing all the standard provisions normally used in actual transactions. The prerecorded fictitious deed is incorporated by reference in each short form instrument prepared for a particular transaction. A reference to the recording information of the fictitious deed of trust is contained on the front page of the short form deed of trust. The boilerplate language is reprinted on the back page. Since the front page of the document refers to the recording information of the fictitious deed of trust, it is not necessary to record the back page. The back page often contains an instruction not to record that page. The recording of and reference to such fictitious deeds of trust are authorized by Civil Code section 2952. The purposes of a short form deed of trust are to minimize recording fees.
Historically, the term fictitious deed referred to a forged deed or other deed that was executed under a fictitious name. The 1902 case of People v. Chretien 137 Cal 450, 70 P 305, (1902) said the following about fictitious deeds: “A deed executed by a fictitious name is not included in the fictitious instruments for the payment of money or property enumerated in § 476 [of the Penal Code], and there being no other statute making the signing or uttering of a fictitious deed a specific offense, it is included in the crime of forgery of a deed under this section [section 470 of the Penal Code].”
Cal Civ Code § 2952 states:
§ 2952. Recording of fictitious mortgage or deed of trust; Effect
Mortgages and deeds of trust of real property may be acknowledged or proved, certified and recorded, in like manner and with like effect, as grants thereof; provided, however, that a mortgage or deed of trust of real property may be recorded and constructive notice of the same and the contents thereof given in the following manner:
Any person may record in the office of the county recorder of any county fictitious mortgages and deeds of trust of real property. Those fictitious mortgages and deeds of trust need not be acknowledged, or proved or certified to be recorded or entitled to record. Those mortgages and deeds of trust shall have noted upon the face thereof that they are fictitious. The county recorder shall index and record fictitious mortgages and deeds of trust in the same manner as other mortgages and deeds of trust are recorded, and shall note on all indices and records of the same that they are fictitious. Thereafter, any of the provisions of any recorded fictitious mortgage or deed of trust may be included for any and all purposes in any mortgage or deed of trust by reference therein to any of those provisions, without setting the same forth in full; provided, the fictitious mortgage or deed of trust is of record in the county in which the mortgage or deed of trust adopting or including by reference any of the provisions thereof is recorded. The reference shall contain a statement, as to each county in which the mortgage or deed of trust containing such a reference is recorded, of the date the fictitious mortgage or deed of trust was recorded, the county recorder's office wherein it is recorded, and the book or volume and the first page of the records in the recorder's office wherein and at which the fictitious mortgage or deed of trust was recorded, and a statement by paragraph numbers or any other method that will definitely identify the same, of the specific provisions of the fictitious mortgage or deed of trust that are being so adopted and included therein. The recording of any mortgage or deed of trust which has included therein any of those provisions by reference as aforesaid shall operate as constructive notice of the whole thereof including the terms, as a part of the written contents of the mortgage or deed of trust, of those provisions so included by reference as though the same were written in full therein. The parties bound or to be bound by provisions so adopted and included by reference shall be bound thereby in the same manner and with like effect for all purposes as though those provisions had been and were set forth in full in any mortgage or deed of trust.