Colorado § 38-30-108 - Conveyances to grantee in a representative capacity.

§ 38-30-108. Conveyances to grantee in a representative capacity.

(1) An instrument conveying an interest in real property, in which the grantee is described as trustee, agent, conservator, executor, administrator, attorney-in-fact, personal representative, nominee, custodian, or a person acting in any other representative capacity, shall also describe the representative capacity of such grantee by one or more of the following means:

(a) Naming the person so represented;

(b) Identifying the statute, the trust or other agreement, or the court appointment under which the grantee is acting; or

(c) Referring, by proper description to book, page, document number, or file to an instrument, order, decree, or other writing containing any such description of the representative capacity of the grantee that is recorded with the county clerk and recorder in the county where the real property is located.

(2) If the representative capacity of the grantee is not described as provided in subsection (1) of this section, the description of a grantee in any such representative capacity in such instrument of conveyance shall be presumed to be a description of the person only and shall not be notice of the representative capacity of such grantee.

(3) After the recording of an instrument conveying an interest in real property in which the grantee is described as acting in a representative capacity, but in which the description of the grantee does not comply with subsection (1) of this section, and regardless of whether such instrument of conveyance was recorded prior to or after August 8, 2001, an affidavit that has been executed by or on behalf of such grantee, which refers by proper description by book, page, document number, or file to the recording information of such instrument of conveyance and that contains one of the descriptions of the representative capacity of such grantee described in subsection (1) of this section, may be recorded with the county clerk and recorder of the county where the real property is located. Upon the recording of such affidavit, all persons shall thereafter have notice of the representative capacity of such grantee with respect to the interest in real property so conveyed.

Source: L. 21: p. 187, § 1. C.L. § 4877. CSA: C. 40, § 9. CRS 53: § 118-1-8. C.R.S. 1963: § 118-1-8. L. 2001: Entire section amended, p. 398, § 1, effective August 8.

Cross references: For succession of title to property held in trust for church or religious society, see § 7-52-105.

ANNOTATION

Law reviews. For article, "Some Observations on Living Trusts", see 7 Dicta 3 (Mar. 1930). For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 16 Dicta 71 (1940). For article, "How the Statute of Uses Became Operative in Colorado with a 'Telling Effect'", see 26 Dicta 310 (1949). For article, "Curative Statutes of Colorado Respecting Titles to Real Estate", see 26 Dicta 321 (1949). For article, "The Care and Feeding of Individual Trustees", see 39 U. Colo. L. Rev. 205 (1966). For article, "Marketability Issues of Titles Held by Trusts and Trustees", see 29 Colo. Law. 73 (Aug. 2000). For article, "Entity and Trade Name Registration: 2001 Update", see 30 Colo. Law. 81 (Oct. 2001). For article, "Title to Colorado Real Property Held in Trust", see 31 Colo. Law. 85 (May 2002). For article, "Entity and Trade Name Filing Requirements and Customs in Colorado — Part I", see 41 Colo. Law. 57 (Nov. 2012). For article, "Entity and Trade Name Filing Requirements and Customs in Colorado — Part II", see 41 Colo. Law. 25 (Dec. 2012). For article, "Creditors Attacking the Trust, 20 Years after Lagae v. Lackner", see 49 Colo. Law. 42 (July 2020). For article, "You've Got an Amicus Curiae in Me (Or Two)", see 51 Colo. Law. 30 (Mar. 2022).

Word "trustee" deemed purely descriptive. The addition of the word "trustee" to the name of the grantee in a conveyance signifies nothing in view of this section; the word is purely descriptive of the person. Beatty v. Fellows, 101 Colo. 466, 74 P.2d 677 (1937).

Description of grantees as "trustees" in a deed is considered a description of the person only, and the presence of word in the deed does not give rise to an express trust. Coriell v. Hudson, 563 F.2d 978 (10th Cir. 1977).

The failure of a personal representative's deed to list the beneficiaries of a trust or reference a document of record providing such information, pursuant to this section, does not render trust property available to satisfy personal judgments against a trustee when the creditors placed no reliance on the non-conforming personal representative's deed in extending the credit. Lagae v. Lackner, 996 P.2d 1281 (Colo. 2000).

The intent and purpose of the general assembly in enacting this section did not include allowing personal judgment creditors to seize trust assets to satisfy a trustee's personal obligations when those creditors did not rely on the non-conforming in extending the credit. To determine otherwise would produce an absurd result. In enacting this statute, the general assembly responded to the problems faced by bona fide purchasers, lessees, mortgagees, or assignees that relied on the apparent authority of trustees. It did not intend to make trust property available to the unsecured creditors of a person who serves as a trustee for another, when those creditors placed no reliance on the non-conforming instrument in making their loans. Lagae v. Lackner, 996 P.2d 1281 (Colo. 2000).

Section protects devisees in addition to bona fide purchasers and similar parties. Deed transferring property did not satisfy the requirements of this section, and, therefore, the property was transferred to the grantees in their individual capacities not in a representative capacity. In re Estate of Kiser, 72 P.3d 425 (Colo. App. 2003).

In light of the legislative intent to protect alienability and title, the supreme court's interpretation of this section in Lagae v. Lackner is limited to circumstances in which the party claiming an interest adverse to the trust is not a transferee. In re Estate of Kiser, 72 P.3d 425 (Colo. App. 2003).

Subsection (3) applies retroactively to deeds filed before the effective date of such subsection. However, affidavit filed did not meet the statutory requirements. In re Estate of Kiser, 72 P.3d 425 (Colo. App. 2003).

Applied in Bd. of County Comm'rs v. Blanning, 29 Colo. App. 61, 479 P.2d 404 (1970).