Form REC440, Restrictive Covenant Modification – Housing Development, is a recording document of the San Diego County Assessor/Recorder/County Clerk, one of the Recorder/County Clerk's courtesy recording forms. An owner of a Housing Development uses it to establish that a Housing-Related Restrictive Covenant in a recorded document may not be enforceable under California Civil Code Section 714.6. On this page you can fill out the form online on FillingPDF and download or print the completed PDF; the original PDF is published by the County at sdarcc.gov.
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What is REC440?
Form REC440, Restrictive Covenant Modification – Housing Development, is the San Diego County Recorder/County Clerk document an owner of a Housing Development records to establish that a Housing-Related Restrictive Covenant in a recorded document may not be enforceable under California Civil Code Section 714.6.
The printed title is "Restrictive Covenant Modification Document (Housing Development Covenant Modification)". A Housing-Related Restrictive Covenant is a provision that restricts or prohibits residential use of the property, limits the number, size or location of residences that may be built, or limits the number of persons or families who may reside there. The form identifies the original recorded document by page, recording date, and book and page or instrument number in the official records of the County of San Diego, and a redacted copy of the covenant is attached.
The form states its limits. Any provision not specifically made unenforceable by Section 714.6 stays in force despite the redactions. It does not invalidate local building codes and does not authorize development that is inconsistent with the local general plan, zoning ordinances or any applicable specific plan. Once recorded, it is indexed like the original covenant document, carries a reference to it, and takes the original document's effective date, subject to intervening amendments.
Page 3 is an Office of County Counsel Determination block, completed by the San Diego County Counsel or a designee, not by the submitting party.
Who needs to file REC440?
The main user is the owner of a Housing Development (as defined in California Civil Code Section 714.6(j)) on property covered by a recorded document that contains a Housing-Related Restrictive Covenant. On the form this person is the "Submitting Party".
Conditions the form attaches:
- The property is owned by an entity or individual, or is controlled by an entity or individual as defined by Section 714.6(j)(1)(B).
- The Housing Development is either a 100% affordable development meeting Section 714.6(j)(1)(A)(i-ii), or a project on property whose owner or controller has submitted a complete development project application to redevelop an existing commercial property with a Housing Development that is not 100% affordable (Section 714.6(j)(1)(A)(iii)).
- The development is not subject to any of the exemptions in Civil Code Section 714.6(g), (h) or (i).
- The signer must be legally authorized to submit the document.
An owner who is not yet the record title owner, for example during escrow, may not record the document until escrow closes and they become the record title owner, if County Counsel makes that determination. The form says the County Counsel may refuse recording when the modification is not authorized, the original document has no prohibited housing restriction, or the property does not qualify as a Housing Development.
When to file REC440
Use Form REC440 when you want to record a modification establishing that a Housing-Related Restrictive Covenant is unenforceable against the owner of a Housing Development. The form prints no deadline of its own.
Recording depends on the County Counsel determination on page 3. Recording may go ahead when County Counsel states that the modification may be recorded. If County Counsel finds the requirements met but you are not yet the record title owner, you must wait until you close escrow and become the record title owner. If County Counsel finds the modification may not be recorded, or cannot make the determinations from the information provided, it may not be recorded.
The modification takes the same effective date as the original restrictive covenant document, subject to any intervening amendments or modifications, except as the recorded modification changes it.
Documents you need
- A copy of the Housing-Related Restrictive Covenant, redacted, attached to the form; it comes from the original recorded document the form identifies.
- A copy of the Permit Application as defined in Civil Code Section 714.6(j)(1)(B)(ii), only if you check the box for a 100% affordable Housing Development in item 2; it is recorded together with the form.
How to fill out REC440
Enter recording and return details
Under RECORDING REQUESTED BY and When Recorded Mail To, enter the Name, Mailing Address, and City, State and Zip Code to which the recorded document should return.
Leave the Recorder's space blank
Do not write in the area marked "Space above this line for Recorder's use only"; it is reserved for the Recorder's stamp.
Identify the original covenant document
In the recording paragraph, enter the page(s) of the document, the recording date, and the book and page or the instrument number, as recorded in the official records of the County of San Diego.
Attach the redacted covenant
Attach a copy of the Housing-Related Restrictive Covenant with the restrictive provisions redacted, as the form states. Do not redact provisions Section 714.6 does not make unenforceable.
Certify ownership or control in item 1
Check that the property is owned by an entity or individual, OR controlled by an entity or individual as defined by Section 714.6(j)(1)(B).
Select the development type in item 2
Check the 100% affordable Housing Development box, which requires the Permit Application copy to be provided and recorded with the form, OR the box for a complete development project application to redevelop an existing commercial property with a Housing Development that is not 100% affordable.
Review the confirmations in items 3 and 4
Item 3 confirms the development is not subject to the exemptions in Civil Code Sections 714.6(g), (h) or (i). Item 4 confirms the modification does not invalidate local building codes or authorize inconsistent development.
Sign, date and print your name
The Submitting Party signs and dates the document and prints their name. The signature includes the declaration under penalty of perjury and the indemnity of the County of San Diego.
Leave the County Counsel block alone
Do not complete the Office of County Counsel Determination on page 3; the County Counsel or designee checks a box and signs it.
Review and download the completed PDF
Check the recording reference, boxes and signature, then download or print the completed PDF from FillingPDF and assemble the attachments described under How to submit.
How to submit REC440
The Recorder/County Clerk takes documents for recording by mail or in person.
- By mail: send the original document with a check or money order to San Diego Recorder/County Clerk, P.O. Box 121750, San Diego, CA 92112-1750 (standard U.S. Mail). For overnight or express mail use San Diego Recorder/County Clerk, 590 3rd Avenue, Suite 204, Chula Vista, CA 91910. Make the check or money order payable to San Diego Recorder/County Clerk.
- In person: record at the downtown San Diego, Chula Vista, Santee or San Marcos office. Recording is not available at the Kearny Mesa Office, and appointments are not required.
The Recorder's recording page says applicable fees must be paid at the time of recording; it lists cash, credit/debit card (in person only), check or money order. Ask the Recorder for the current fee schedule, and call (619) 238-8158 with questions (Se habla español). The page also says signatures must be original, the document must be legible, and the first page must leave the top 2½ inches for recording information. Include the County Counsel determination on page 3 and the attachments the form requires.
FillingPDF lets you fill out and download the PDF; submission follows the channels above.
Common mistakes to avoid
- Leaving out the recording reference: the form must identify the original covenant document by page(s), recording date, and book and page or instrument number.
- Checking the 100% affordable box in item 2 without providing the Permit Application copy that is recorded with the form.
- Attaching an unredacted covenant, or assuming redactions remove other provisions; provisions not made unenforceable by Section 714.6 remain in full force.
- Using the form for a development subject to an exemption in Civil Code Section 714.6(g), (h) or (i), which item 3 says it is not.
- Signing without being legally authorized to submit the document; the signature is under penalty of perjury.
- Recording after County Counsel marks that the owner is not yet record title owner, before escrow closes and you become the record title owner.
- Writing in the space above the line reserved for the Recorder; the Recorder's page requires the top 2½ inches of the first page for recording information.
- Recording at the Kearny Mesa Office, or sending a standard-mail package to the Chula Vista street address instead of P.O. Box 121750.
Frequently asked questions
What is Form REC440, Restrictive Covenant Modification – Housing Development?
It is a San Diego County Recorder/County Clerk document recorded by an owner of a Housing Development to establish that a Housing-Related Restrictive Covenant in a recorded document may not be enforceable under California Civil Code Section 714.6.
Is this a San Diego County property tax form?
No. It is a recording document filed with the San Diego County Recorder/County Clerk to modify how a recorded restrictive covenant applies to a Housing Development. It is not a tax return or tax bill.
Does County Counsel have to approve Form REC440?
The form includes an Office of County Counsel Determination on page 3. County Counsel can state the modification may be recorded, that it must wait until you are record title owner, that it may not be recorded, or that it cannot make the determinations from the information provided.
What do I attach to Form REC440?
Attach a copy of the Housing-Related Restrictive Covenant, redacted. If you check the 100% affordable Housing Development box, the Permit Application copy must also be provided and recorded together with the form.
Where do I record Form REC440 in San Diego County?
Record it with the San Diego Recorder/County Clerk by mail to P.O. Box 121750, San Diego, CA 92112-1750, or in person at the downtown San Diego, Chula Vista, Santee or San Marcos offices. Kearny Mesa does not offer this service.
Who signs Form REC440?
The Submitting Party signs and dates it, prints their name and declares under penalty of perjury that the information is true and that they are legally authorized to submit it. The County Counsel signs only the determination block on page 3.
Can I record Form REC440 before I own the property?
Not if County Counsel marks that you are not yet record title owner. In that case you may not record the document until you close escrow on the property and become its record title owner.
Can I fill out Form REC440 online on FillingPDF?
Yes, you can fill out the PDF online on FillingPDF and download or print it. FillingPDF is an independent service and does not record or file the document; you submit it to the Recorder/County Clerk yourself.
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