Chapter 8: Recording Statutes

Question 1

Recording Statute: Purchaser
-Can Baker be considered a purchaser for purposes of the recording statute when he paid $100k for the property from his father, Oscar, but received a transfer of $95,000 the next day from Oscar?

Answer 1

-Recording statutes protect only purchasers, not donees. The consideration paid by the purchaser must be substantial and not nominal consideration

Question 2

Recording Statute: Presence
-Was the Oscar-Abel deed duly signed by Oscar in the notary’s “presence” for purposes of recordation when Oscar signed in the next room but the notary head but did not see Oscar sign?

Answer 2

-Presence means that an individual is in the vicinity of or in proximity to another person. The element in dispute is vicinity/proximity.

Question 3

Recording Statute: Latent Defect
-Assuming the deed was not properly acknowledged by the notary because it was not signed by Oscar in the presence of the notary, and the deed is thus deemed to have a latent defect, dos such a deed impart record notice to Baker, who did not do a title search in this notice jurisdiction?

Answer 3

-In some jurisdictions a deed that has a latent defect gives record notice. In other jurisdictions, such a deed does not impart record notice.

Question 4

Recording Statute: Inquiry Notice
-Was Baker given inquiry notice of the prior conveyance to Abel when the teenager stated, “If you are interested in buying this, you are too late”?

Answer 4

-Notice can be actual, record, or inquiry. Inquiry notice arises when one is apprised of facts that would lead a reasonable person to investigate further; the investigation can include an interrogation of those in possession of the property.

Question 5

Common Law: First in Time
-When Black conveyed Blackacre to Church and thereafter conveyed Blackacre to Black, Jr (“BJ”), under the common law, who owns Blackacre?

Answer 5

-Under the common law, “first in time is first in right,” meaning that whoever receives the property first prevails over later transferees.

Question 6

Recording Statute: Notice
-Can BJ trump the common law rule of first in time is first in right because he prevails under the local recording statute?

Answer 6

-Under a notice statute, the subsequent transferee can prevail over a prior transferee if the subsequent transferee takes without notice and is a purchaser for valuable consideration.

Question 7

Notice Statute
-When the statute provides, “No instrument affecting real property gives notice… unless recorded”, is the statute a notice statute?

Answer 7

-A statute that requires “recording,” but not that the recording be “first dully recorded,” is a notice statute, meaning that the subsequent purchaser prevails unless he has notice.

Question 8

Inquiry Notice

-Did BJ have notice of the transfer to church when church did not record but put up a sign, “In Grateful Appreciation?”

Answer 8

-Notice can be constructive: record or inquiry. Record notice is notice from the public records; inquiry notice arises when the owner is apprised of facts that would lease a reasonable owner to inquire or investigate further

Question 9

Consideration
-When BJ paid $25k to his father for Blackacre, was this sufficient consideration to enable BJ to be a purchaser for purposes of the local recording statute?

Answer 9

-Although the purchaser need not pay fair market value, consideration must not be nominal; it must be substantial.